The court emphasized the need for transparency in billing practices and the right to access common amenities, directing provisional measures pending arbitration.

JUDGMENT:

Context and Background:

1. This bunch of Petitions under Section 9 of the Arbitration and Conciliation Act, 1996 (“the Act”) is a collective effort to seek interlocutory relief in the form of full access to all utilities and facilities available at the Lodha World Towers, Worli (“Lodha Worli”), developed by Macrotech Developers Ltd. (“Macrotech”), a Respondent in all these Petitions.

2. The Petitioners who are high networth individuals, have acquired apartments at Lodha Worli. They assert having fully paid all applicable dues in respect of ‘Federation Common Area Maintenance Charges’ (“FCAM Charges”) towards their entitlement to use various amenities such as Gymnasium, Club House, Spa etc. (“Common Amenities”). Macrotech claims that the Petitioners are in default and to assert its rights, has cut off access of these Petitioners to certain Common Amenities.

3. Initially, these Petitions were mentioned before me as a matter of grave urgency on the premise that the Petitioners’ access to their own homes had been cut off by Macrotech. It was then clarified on behalf of Macrotech that access to the residential units and car parking spaces was not cut off for any Petitioner. However, it became apparent that full and free access of the Petitioners to the Common Amenities had been cut off.

4. Mr. Navroz Seervai, Learned Senior Counsel led submissions on behalf of the Petitioners while Mr. Sharan Jagtiani, Learned Senior Counsel made submissions on behalf of Macrotech. With their assistance, I have perused the record.

5. What becomes apparent is that the parties have serious disputes about the FCAM Charges that ought to be charged. The Petitioners have serious grievances about the FCAM Charges, which they accuse of being opaque. According to the Petitioners, they ought to have a credit balance in the payments made by them to Macrotech and that denial of access to the Common Amenities is injurious to their basic right to life and health, entitled as they and their children are to use the gymnasium, the Club and other such facilities.

6. Macrotech essentially argues that the Petitioners are the only owners of apartments at Lodha Worli who are raising grievances about FCAM Charges, and that other residents have been paying their FCAM Charges dues without any grievance. According to Macrotech, this leads to an unfair outcome – those who are defaulters in paying FCAM Charges would get to enjoy the Common Amenities while others who are compliant underwrite the ability to keep the Common Amenities running. To address this inequity, Macrotech would argue, it is necessary to deny access of the defaulters to the Common Amenities.

7. Each Petitioner is in arrears to the extent of approximately Rs. ~15 lakh, Mr. Jagtiani would submit. To examine if equities could be adjusted, I put to the Petitioners if they would deposit under protest without prejudice to their contentions, a sum of Rs. 15 lakh each with the Registry of this Court, which could abide by the outcome of arbitration, while unfettered access to the Common Amenities could be ensured, pending arbitration. However, the Petitioners would not agree to the proposition. Mr. Seervai would submit that far from being in arrears, the Petitioners would have paid more than due to Macrotech.

8. On March 2, 2025, Macrotech provided inspection of the accounts to the Petitioners. The inspection is claimed by Macrotech to have been provided right from October 2017, when the FCAM Charges regime commenced, the adequacy of which is denied by the Petitioners.

9. Each of the Petitioners is party to an agreement with Macrotech, which provides the framework for Macrotech to charge FCAM Charges. For purposes of this judgement I analyse the agreement executed with Shantanu Sengupta, one of the Petitioners, treating that Petition as a lead Petition. The FCAM Charges are essentially charges payable by owners of units towards the maintenance of the larger property other than the buildings in which the apartments a