ORDER :

A fundamental objection is raised on behalf of the respondents as regards the very maintainability of the present petition and application filed on behalf of the petitioner - applicant under Sections 9 and 11 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as the ‘Arbitration Act’). According to the respondents, the arbitration clause, in the present case, is so worded and structured that the petitioner, being a member of the respondent No.2 - Co-operative Housing Society, alone cannot seek resolution of disputes under the arbitration clause. It is indicated that the disputes capable of resolution under the arbitration clause are disputes between the Society and the respondent No.1-Developer. It is claimed that the petitioner as a lone member of the Society, is incapable of invoking arbitration. Consequently, it is alleged that since the invocation itself is defective, the proceedings cannot continue in the present case.

2. Shorn of unnecessary details, the facts leading to filing of the present proceedings are that a development agreement was executed on 25.03.2021 for re-development of the property of the respondent - society, of which, the petitioner is one of the members. There are 216 members of the society. The development agreement shows that the respondent No.2 - Society, 216 members of the Society and the respondent No.1 - developer are signatories to the said agreement. Simultaneously, with the execution of the Development Agreement, a Power of Attorney was executed by the respondent - society in favour of the respondent - developer to undertake development in terms of the said development agreement.

3. As per the development agreement, the respondent - developer was to undertake re-development of the property in accordance with Regulation 33(7)(B) of the Development Control and Promotion Regulations for Greater Mumbai, 2034 (DCPR 2034). The respondent - developer was to develop the property and utilize the permissible Floor Space Index (FSI) as per the DCPR 2034, read with the terms and conditions of the development agreement. It was further agreed that if the development potential was to increase beyond the permissible FSI under Regulations 33(7)(B), such increase would be shared between the respondent - developer and respondent - society in a ratio of 50:50.

4. It is the case of the respondents that after the possession of the property was handed over to the respondent - developer and the old structure was demolished, it was found that the actual area of the plot was less than the area on the basis of which the development agreement was executed. In this backdrop, the respondents i.e. the Developer and the Society, reflected upon the effect of such reduction in the size of the plot. After deliberations, the society passed a unanimous Resolution on 12.06.2022, allowing the respondent - developer to change the scheme to carry out re-development under Regulation 33(11) of DCPR 2034. By the said resolution the Managing Committee of the respondent - society stood authorized to sign a supplemental development agreement in the light of the change in the re-development scheme.

5. Pursuant thereto, a supplemental development agreement was executed between the Managing Committee of the respondent - society and the respondent - developer. In the said supplemental development agreement, the developer agreed to pay an additional sum of ? 750/- per square meter of carpet area as additional corpus or one mechanical car parking space. The members could opt for either benefit. It was also stipulated that the Respondent-developer would ensure that the new building to be constructed on the property would not have any PTC units/members and that it will also not have any marking of Slum Rehabilitation Authority (SRA) logo on the project. It was also agreed that the respondent - developer shall be entitled to utilize the FSI available at present on the said property due to change of the scheme to Regulation 3