JUDGMENT :

BHARATI DANGRE, J.

1. By an Arbitration Petition (L) No. 37219/2022, filed under Section 37 of the Arbitration and Conciliation Act, the petitioner Company engaged in the business of Real Estate development has raised a challenge to the an order dated 9.11.2022, passed by the Sole Arbitrator, appointed by this Court, in two petitions filed before it by the petitioner and the contesting respondents, Co-operative Housing Society Limited. Upon permission being granted to convert the respective petitions into applications u/s. 17 before the arbitrator, the interim relief was refused to the petitioners who was the claimant, by recording, it is open for it to prove the alleged monetary loss/damages at trial as the balance of convenience was in favour of the respondent Society.

It is this order which is clamped as patently illegal, erroneous, manifestly arbitrary and perverse and this Court is therefore, called upon to exercise it’s power u/s. 37 of the Arbitration and Conciliation Act, by passing appropriate orders and directions, so as to protect and safeguard the petitioner’s right accruing under the Development Agreement dated 3.2.2018.

The petitioner developer has also filed a petition u/s. 9 of the Arbitration and Conciliation Act, 1996.

BACKGROUND FACTS

2. The respondent is the owner of a plot described in the petition, in village Eksar, Taluka Borivali, being situated at ‘Kastur Park’ Shimpoli Road, Borivali (West), together with a building standing thereon, comprising of ground plus three upper storeys known as ‘Gopal terrace’. The said building and the plot constitute ‘the property’ which consist of residential as well as commercial holdings in occupation of 15 residential flat holders and 9 shop owners, who are the Members of the respondent Society).

The building being constructed around 42 years ago, has become inhabitable, calling for extensive repairs, constrain the members of the Society to consider the proposal for it’s redevelopment and a resolution to that effect was passed in it’s Annual General Meeting (AGM) held on 6.7.2013. It was decided to invite offers from the reputed builders to carry out the work of redevelopment of the said property, by demolishing the existing building and constructing a new building to accommodate the existing 24 unit holders of the Society and also confer upon them the additional benefits, in terms of additional area as well as hardship compensation and for sale of the remaining constructed area of the flats/shops, units, etc, in the open market to the prospective buyer by consuming available FSI and utilizing the Fungible FSI as well as Transferable Development Rights (TDR) in accordance with the DCR of 1991 of Municipal Corporation of Greater Mumbai (MCGM).

3. Upon such offers being invited, the petitioner developer submitted it’s offer for redevelopment of the subject property belonging to the Society and on 20.12.2015, the Society passed a Resolution appointing the petitioner as the preferred developer. After a series of discussions, a Development Agreement (DA) was entered between the petitioner and respondent for redevelopment of ‘the property’ and it was registered on 3.2.2018.

4. The Development Agreement comprise of several recitals, which were agreed to form an integral part of the Development Agreement and it contained a declaration of the Society about the plot area and the specifications of the building constructed thereon, consisting of ground and three upper storey, which housed 24 tenements. The agreement contemplated grant of development rights to the developer and it also specify that the Society shall render full and necessary co-operation for it’s development and shall execute the necessary Power of Attorney (POA) in order to facilitate the development project.

The other terms in the DA contemplated the manner in which the developer was entitled to explore it’s potential and the utilization of FSI and TDR. The consideration payable by the developer was also specifi