The execution of a Development Agreement is essential for binding contractual rights, and compliance with timelines specified in earlier agreements is necessary for specific performance claims under the Arbitration and Conciliation Act.

Judgement:

SOMASEKHAR SUNDARESAN, J.

1. This is a Petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 (“the Act”) in connection with redevelopment of a building envisaged under an instrument titled “Memorandum of Agreed Terms” dated January 29, 2024 (“MOAT”) executed between the Petitioner, Sunteck Realtors Private Limited (“Developer”) and the Page 1 of 27 Respondent, Bandra Sea Breeze Apartment Co-Operative Housing Society Limited (“Society”).

2. The redevelopment would cover one building occupied by the members of the Society, comprising 16 flats of 16 members including one terrace flat; two buildings occupied by tenants; and two garages and ancillary structures. The parties had envisaged redevelopment under Regulation 33(7)(B) of the Development Control and Promotion Regulation 2034 and went on to execute the MOAT pursuant to the selection of the Developer in terms of a Tender floated by the Society.

3. The Development Agreement to be executed in future would need to be consistent with the MOAT and the terms of the Tender. On September 6, 2025, the Society wrote to the Developer intimating termination of the MOAT (“Termination Notice”). The prayers in the Petition essentially seek an intervention against such termination by staying the implementation and effect of the Termination Notice. The Society resists the Petition on the premise that a new developer has already been appointed.

4. The land on which the aforesaid structures stand and were meant to be redeveloped was leasehold land, the lessor being the Page 2 of 27 Government of Maharashtra. It was envisaged that the land would be converted into freehold land for purposes of the development.

5. At the heart of the controversy to be answered in this Petition is whether there are any implications of a final Development Agreement having remained elusive for over one and half years since the execution of the MOAT, for grant of specific protective relief against the Termination Notice under Section 9 of the Act.

6. Before delving into an analysis of what whether and what protective measures may be issued, some critical facets of the factual matrix would need to be noticed:

A) Clause 2 of the MOAT contains an agreement to appoint the Developer by the Society for purposes of the redevelopment;

B) Clause 4 deals with the plot size and the confirmed carpet area occupied in the aggregate, by the members;

C) Clause 5 records that the redevelopment would utilise the entire development potential;

D) Clause 5.1.2 provides that the terms on which the tenants would be settled into the redevelopment exercise may be Page 3 of 27 incorporated in the Development Agreement;

E) Clause 6.1 records that the entitlement of the members in terms of additional area to be given to them would be 50% on the carpet area currently owned by them. The member-wise allocation of carpet area is set out in Annexure VI of the MOAT, and can be discerned from Pages 172 and 174. Other facets such as hardship compensations, displacement compensation, car parking slots and garage entitlements are all covered in other sub-provisions of Clause 6;

F) Clause 7.6 requires a Developer to convert the leasehold land into freehold land at his cost and incur the expense for payment of the premium therefor. Towards this end, the Developer was required to create a fixed deposit in the sum of Rs. 20 crores. It is evident from the record that the fixed deposit was provided on the very same date as the MOAT;

G) T