IMPORTANT POINT
Arbitration – A third party whose interests would be affected by interim protective measures that may be made in exercise of powers under Section 9 of Arbitration and Conciliation Act, 1996 can be made a party to such a Petition.

JUDGMENT

Context and Factual Background:

This is a Petition under Section 9 of the Arbitration and Conciliation Act, 1996 (“the Act”) filed by Ambit Urbanspace (“Developer”), which has executed a Development Agreement dated May 21, 2024 (“Development Agreement”) with Poddar Apartment Co-operative Housing Society Limited, a Housing Society (“Society”) to redevelop a building, seeking protective measures from this Court pending arbitration being invoked.

2. At the outset, it is worth mention that this is not a conventional case of such petitions, which now have left a long legacy of jurisprudence in this Court. The difference from the usual and typical pattern seen in Section 9 Petitions relating to redevelopment of properties in Mumbai, is stark. Learned Counsel for all the parties fairly state that they do not have a specific precedent of the specific nature involved in these proceedings.

3. This is not a case where a developer, who has a development agreement with a co-operative society, seeking to invoke the interim protective measures against recalcitrant and dissident members of the society, where some members assert their individual will in multiple directions, in conflict with the wider collective will of all members expressed through the actions of the society. On the contrary, in this case, the protective measures are sought against tenants occupying premises in the property on a standalone basis, distinct and separate from the building in question, who are not members of the Society, and out of the reach of the collective will of the Society. In fact, their premises physically stand as separate structures within the same plot of land. The landlord of the tenants is a member; has not initiated any proceedings for eviction in any forum; and naturally has interests that are aligned with the Developer in eviction of the tenants, invoking the jurisdiction under Section 9.

4. By the very pleadings of the Developer in this very Petition, it is evident that the tenanted premises that are in dispute for purposes of this Petition are five enclosed garages (“Subject Garages”). The Subject Garages have been enclosed garages even when the original landlord one Sushilabai Makhanlal Poddar (“Vendor”) had executed a Deed of Conveyance dated May 12, 1972, conveying the premises now owned by the Society – the Petition pleads that the Vendor retained absolute ownership of the ground floor, consisting of shops, the basement and five “enclosed garages”, and also became a member of the Society (as pleaded in Paragraph 3.2 of the Petition). Respondent No. 2, Respondent No. 3 and Respondent No. 4, Yogendra J. Poddar, Pawan J. Poddar and Raghavendra S. Poddar, (executors of the Estate of the Vendor i.e. Late Sushilabai Makhanlal Poddar), are now the landlords of the Subject Garages (“Landlords”).

5. The ownership of the Landlords includes all the commercial shops in the Society, two basements, all of which are tenanted, and which tenants are being housed in the redeveloped premises. However, the Subject Garages, which too are tenanted out to Respondents No. 5 to 8 (“Tenants”) are proposed to be given different treatment. In lieu of the Subject Garages, the Tenants are proposed to be simply given open car parking spaces in the redeveloped building, and that too under an agreement to which they are not even signatories. Respondent No. 9 has been termed an illegal occupant of one of the tenanted Subject Garages by the Developer and by the Landlords in their respective pleadings.

6. In this Petition, the Developer is seeking “eviction” (to quote the pleadings of the Landlords in Paragraph 3 of their affidavit-in-reply) of the Tenants, and that too, claiming under an agreement not even executed by the Tenants. The Development Agreement purports to make the Tenants parties in the title clause of the agreement, but there is not even a placeholder for their signatures in the agreement. Worse, the Development Agreement was supplemented by a Supplement