Point of Law: Arbitration dispute - Jurisdiction - though there was no patent lack of inherent jurisdiction, the High Court who ought to have dismissed the writ petition.

JUDGMENT :

R.D. DHANUKA, J.

1. By this Writ Petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has impugned the order dated 19th January, 2021 passed by the learned Arbitrator dismissing the Application filed by the petitioner under Section 16 of the Arbitration and Conciliation Act, 1996 (for short ‘the Arbitration Act’) and holding that the Arbitral Tribunal has jurisdiction to entertain claims laid down by the respondent.

Some of the relevant facts for the purpose of deciding this Writ Petition are as under:

2. Mr. Sanjay Jain, learned counsel for the respondent at the threshold raised a preliminary objection that this writ petition filed under Articles 226 and 227 of the Constitution of India impugning the order passed by the Arbitral Tribunal rejecting the application filed by the respondent in such arbitral proceedings raising a plea of jurisdiction raised by such respondent is not maintainable. The remedy, if any, of the petitioner (original respondent) would be to challenge the said order passed by the Arbitral Tribunal along with final award, if the petitioner is aggrieved by the final order under Section 34 of the Arbitration Act. Learned counsel invited our attention to various paragraphs of the judgment of the Hon’ble Supreme Court in case of Deep Industries Limited vs. Oil and Natural Gas Corporation and Limited and Another, (2020) 15 SCC 706.

3. Dr. Veerendra Tulzapurkar, learned senior counsel for the petitioner, on the other hand, would contend that the writ petition filed by his client under Articles 226 and 227 of the Constitution of India is maintainable in view of the principles of law laid down by the Hon’ble Supreme Court in case of Deep Industries Limited (supra) and other subsequent judgments. In view of these rival submissions made by the learned counsel for the parties, we shall decide the issue of maintainability of this writ petition impugning the order passed by the Arbitral Tribunal rejecting the application filed by the petitioner under Section 16 of the Arbitration Act and holding that the Arbitral Tribunal has jurisdiction to adjudicate upon the claims made by the respondent (original claimant).

4. It was the case of the petitioner society that the respondent had executed agreements for sale with the unit purchasers in the year 1995 and agreed to form a society within the timeline prescribed under Rule 8 of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale Management and Transfer) Rules, 1964 (for short ‘MOFA Rules’). The respondent had also covenanted that it would execute a conveyance of the property within four months of the registration of the society. It was the case of the petitioner that the respondent did not disclose any further construction that was proposed to be carried out on the said property at the time of entering into the agreements for sale with various unit purchasers, though, under Clause 6 of the agreement for sale, the respondent had expressly covenanted that the residential FSI from the property would be available only to the society after its registration.

5. It was the case of the petitioner that since the respondent failed to execute a Deed of Conveyance in favour of the petitioner society inspite of receiving full consideration from the flat purchasers even after expiry of eight years after execution of the Memorandum of Understanding (for short ‘MOU’) in the year 2016, the petitioner filed an application bearing no. 59 of 2016 before the Competent Authority under Section 11 of the Maharashtra Ownership Flats Act, 1963 (for short ‘MOFA’) for a unilateral Deemed Conveyance. The said application was resisted by the respondent. The said application was dismissed by the Competent Authority on 22nd February, 2017 on account of the fact that there was no occupation certificate issued in respect of the building. Liberty was however granted to the petitioner to file another application.

6. On 3rd March, 2018, the p