The court upheld the principle that undertaking given to secure performance of contractual obligations revives a terminated contract, allowing specific performance claims despite prior termination by the society.

JUDGMENT :

SANDEEP V. MARNE, J.

1. By this Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, Petitioner has sought invalidation of the Arbitral Award dated 16 August 2024 passed by the learned sole Arbitrator. By the impugned Award, the Arbitral Tribunal has directed Petitioner to have the building plans amended and approved in consonance with the sanctioned plan dated 17 September 2008 for the purpose of issuance of occupation certificate for the building. The Tribunal has directed the Petitioner to take all necessary steps for procurement of occupation certificate for wing ‘A’ building in accordance with building plans sanctioned on 17 September 2008. In the event of non-grant of occupation certificate in respect of wing ‘A’ building, the Tribunal has directed the Petitioner to take steps to get the area shown as ‘open to sky ducts’ in the living rooms and bedrooms, regularaised at its cost within three months of rejection of application for occupation certificate. In the event of non-grant of occupation certificate and rejection of regularisation of ‘A’ wing building, Petitioner is directed to pay to the Respondent-Society sum of Rs.128,98,00,000/- within three months of such rejection alongwith interest @ 8% per annum. The Petitioner is also directed to pay to the Respondent-Society monthly compensation @ Rs.80/- per sq.ft. per month per society member in respect of the period from February-2014 to October-2015 alongwith interest @ 8% per annum. The Petitioner is also directed to pay to the Respondent-Society sum of Rs. 45,82,500/- being the loss on account of shortfall in area alongwith interest @8% per annum. The Petitioner is also directed to pay to the Respondent-Society property taxes for the period from November 2008 till 15 October 2015. Arbitral Tribunal has also declared plans dated 9 May 2009 and 25 March 2011 as well as Rectification Deed dated 3 November 2010 as illegal and void and not binding on the Respondent-Society.

FACTS

2. The Respondent is a cooperative housing society registered under the Maharashtra Co-operative Societies Act, 1960. The Respondent is the owner, seized and possessed of land bearing Plot No.9/10/11 admeasuring 31,603 sq.ft.(2930 sq.mtrs.) bearing CTS No.834/1, 834/2 and 822/1, J.P. Road, Andheri (W), Mumbai-400 053. On the said plot of the society, there were three buildings consisting of ground plus 3 floors having total 58 tenements. The Respondent-Society resolved to go for redevelopment of its buildings and invited offers from developers. The Petitioner is a developer and submitted its offer to the Respondent-Society and offered 52% additional usable carpet area (including flower beds, duct area, dry balcony, niches, etc.) to every member over and above the area occupied by them in the old buildings. The Respondent-Society resolved to appoint the Petitioner as the developer for redevelopment of its buildings. In 2008, the Petitioner-Developer furnished plans including floor plans in respect of the proposed building, u