The main legal point established in the judgment is that the formal Development Agreement (DA) is an essential condition of the contract, and without it, there is no concluded contract and no enforceable contractual rights for Kalpataru.

JUDGMENT

G.S. Patel, J. - The Petitioner ("Kalpataru") is a real estate development company. The sole Respondent ("the Society") is a cooperative society of apartment owners.

2. Kalpatarus application is under Section 9 of the Arbitration & Conciliation Act, 1996. It seeks interim relief pending arbitration. The primary relief is to restrain the Society from acting on its termination letter dated 18th May 2021. By this, the Society claims it terminated a Letter of Intent or LoI dated 18th May 2019 for the re-development of the Societys at the Juhu Vile Parle Development Scheme or JVPDS.

3. The issue on which the parties are at loggerheads is as narrow as it is not easy. Indeed, some weeks after I first reserved judgment, I placed the matter again for further hearing on specific questions that I put to both sides (in writing). They took a little time to consider these and then addressed me briefly. They also put in written submissions. Oddly enough, at the hearing both sides relied on one particular authority but with diametrically opposite interpretations, only adding to the difficulty.

4. Given the manner in which the case unfolded before me, I believe it is both appropriate and necessary to approach the matter slightly differently from other cases. I begin this judgment, therefore, with a statement of what it is, in my understanding, that I am asked to decide. I have attempted to make this as concise as possible. I then proceed to set out, very broadly, the principles that I think must guide in cases like this. I follow this with a brief summary of my conclusions. After that, I turn to the facts, which are largely undisputed, the relevant documents and clauses of the LoI, the termination letter and some other documents, and to a consideration of the rival submissions and reasons for my conclusions.

5. The question is in this general background. There is a LoI between the parties. Kalpataru is to redevelop the Societys property. The LoI specifically says there is to be a further agreement, and it says what that further agreement is to contain. The LoI is, however, itself detailed and complex. Kalpataru maintains that even if the further agreement is not finalized the parties have not reached a consensus on it the LoI itself is sufficiently detailed as to the rights of the parties. It is, on its own, capable of specific performance. While that is certainly for the arbitral tribunal to consider, the fact that the LoI contemplates a further agreement does not ipso facto render the LoI incapable of specific performance. In other words, according to Kalpataru, every agreement that requires a further agreement is not unenforceable only for that reason. The LoI is a concluded contract. The later agreement is a non-essential term of the bargain the parties struck.

6. In opposition, the Society argues that without the further agreement, there is no concluded contract between the parties at all. The LoI is an agreement to enter into an agreement, one that is for that reason incapable of specific performance. But even if it is not (i.e., not an agreement to enter into an agreement), without the later agreement, the LoI is not enforceable: the respective rights and liabilities of the parties are not decided or agreed. What Kalpataru must build, how, when and to what specifications are all matters yet undecided. If, therefore, Kalpataru can be shown to have been in breach of time-lines and obligations, the Society is within its rights to terminate the LoI.

7. I must, I believe, bear three things in mind while addressing a case like this.

(1.1 The first is about the relative position of the parties. The Society is evidently of extremely modest means. It does not have the wherewithal to do the development or re-development itself. Kalpataru is, by its own telling of it, a reputed developer with considerable resources.

(1.2 The second aspect is about the property itself. This is indubitably the Societys. Kalpataru does not own any of it. Under the Lo