A developer cannot enforce specific performance of a development agreement under Section 14(3)(c) of the Specific Relief Act, 1963, but can approach the Court under Section 9 of the Arbitration and Conciliation Act, 1996 for interim injunction for preservation of the status of the property during the pendency of the arbitration proceeding.

ASHIM KUMAR BANERJEE, J. :- The appellant and the respondent No. 2 were the owners of a land and building measuring 5 cottah 14 chataks and 12 sq. ft. more or less being plot No. 196/098, Khatian No. 449 in Mouza - Ban Hooghly within the local limits of Baranagar Municipality in the district of 24-Parganas (North). They entered into a development agreement with the respondents No. 1 being a partnership firm of which respondent No. 1 (a), 1 (b) and 1 (c) were the partners, for construction of a building on the said land in question. The property was originally owned by one Usha Rani Ghosh since deceased who by her last Will and testament bequeathed the said property to the appellant and the respondent No. 2. By the said agreement it was agreed that the developers would do necessary act and make an endeavour for obtaining probate of the Will of the said Smt. Usha Rani Ghosh since deceased. They would also upon taking possession of the said property measure and survey of the said property and prepare appropriate building plan for construction of a new building on the said land in question by demolishing the existing old structure at their own cost and responsibility. The said agreement also provided that in case of any dispute the matter would be referred to arbitration. As part performance of the said agreement the respondent No. 1 paid diverse sums of money to the appellant and the respondent No. 2. They also caused obtaining probate of the said Will of Smt. Usha Rani Ghosh since deceased. They also prepared a building plan and submitted to the municipality.

2. The respondent No. 1 approached the learned District Judge, Barasat under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act of 1996"), inter alia, praying for an order of restraint as against the appellant and the respondent No. 2 from entering into any agreement for development of the said property by creating third party interest. It was alleged in the said application that the owners without any reason engaged another developer, M/s. Banerjee Construction and Company and asked the respondent No. 1 to take back from M/s. Banerjee Construction a sum of Rs. 4.55 lacs paid to them by respondent No. 1 together with interest @ 15% per annum. The learned District Judge considering the averments made in the petition passed an order of status quo on the undertaking of the applicant to apply for appointment of Arbitrator under Section 11 of the said Act of 1996. We are told that an application under Section 11 of the said Act of 1996 is pending in this Court.

3. Being aggrieved and dissatisfied with the judgment and order of the learned District Judge the appellant preferred the instant appeal.

4. The appeal was heard by us on the above mentioned dates.

5. Mr. Debangshu Basak, learned counsel appearing for the appellant, contended that since the owners were not interested to proceed further under the agreement and they appointed a new developer by offering refund of the sums paid by the respondent No. 1 the learned District Judge should not have passed the order of status quo. It was contended that the development agreement entered into by the appellant and the respondent No. 2 on the one hand and the respondent No. 1 on the other hand was not capable of being enforced in view of the provisions of Section 14 of the Specific Relief Act, 1963 (hereinafter referred to as the said Act of 1963").

6. In support of his contention Mr. Basak relied on three Division Bench decisions of this Court and one Apex Court decision which are as follows :-

(i) 1999, Volume - V, Supreme Court Cases, Page 708 : 1999 AIR SCW 4742 (ICICI v. State of Maharashtra).

(ii) 2003, Volume - I, Calcutta High Court Notes, Page 14 (Satguru Nirman Pvt. Ltd. v. Narayan Chandra Paul).

(iii) All India Reporter, 2006, Calcutta, Page 209 (Vipin Bhimani v. Smt. Sunanda Das).

(iv) All India Reporter, 2007, Calcutta, Page 293 (Bimal Ghosh v. Smt. Kalpana Majumdar).

7. Ms. S