2024:BHC-AS:1483 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION ARBITRATION PETITION NO. 216 OF 2022 M/s. Devike Constructions and Developers Pvt.

Ltd., A Private Limited Company, Having its registered office at Shop No.11, Laxmi Tara Market, Tathwade Road, Theargaon, Pune 411 033.

Through its Chairman Shri. Dhanraj Kersrimal Sonigara, Age: 61, Occ.: Business …Petitioner Versus Dilip Vengsarkar Foundation, A Public Trust registered under the Provisions of the Bombay Public Trust Act, 1950 Through its President and Managing Trustee Shri. Dilip B.

Vengsarkar Having Office at: Flat No.5A, Sports Filed, Worli Sea Face, Mumbai 400 030. …Respondent Mr. Tejas D. Deshmukh, with Mr. M H. D. Chavan and Ms. Sulagna Mohanty, i/b. Sagar Kursija, for the Petitioner.

Mr. S. M. Gorwadkar, Senior Advocate, i/b. Mr. Niranjan Mogre &

Mr. Ritvik Joshi, for Respondent.

CORAM : DR. NEELA GOKHALE, J.

RESERVED ON : 9^th January 2024.

PRONOUNCED ON : 12^th January 2024.

JUDGMENT:

1. The petition seeks appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 to adjudicate disputes arising out of a Memorandum of Understanding (“MOU”)

dated 16^th June 2011.

2. The Petitioner is a company engaged in a business of construction and land development and the Respondent is a public trust registered under the provisions of the Bombay Public Trust Act, 1950. It is the case of the Petitioner that the Pimpri-Chinchwad Municipal Corporation (“PCMC”), by an agreement dated 2^nd November 2007 vested certain rights in land bearing Survey No.09(Part) admeasuring approximately 2.56 Hectares at village Theargaon, Pune for a period of 30 years in the Trust. The Trust was permitted to construct a playground and run a Cricket Academy/Gymkhana providing International Standard Training and Coaching facilities to young cricket aspirants from Pimpri-Chinchwad and other adjoining areas free of cost.

3. A MOU dated 16^th June 2011 was executed by and between the Respondent Trust and one Shri. Dhanraj Keshrimal Sonigara referred to as ‘Promoter’ in the MOU. In terms of MoU a special purpose entity namely ‘DV Gymkhana and Clubhouse’ (“DVGC”) was to be incorporated to undertake the responsibility of development of the playground and the Cricket Academy. It was agreed that the DVGC shall engage the promoter or his agent/assignee for undertaking the activities on terms and conditions mutually agreed upon by the parties.

4. The relevant clauses of the MOU read as thus:

“1. Appointment of Promoter: (DVF) is responsible for development of said property in terms of NOV 07 agreement and wishes to undertake the said activities by forming of special purpose entity. The said special purpose entity i.e. DVGC shall undertake the work of constructing and developing Cricket ground and Cricket Academy/ Gymkhana and shall also be responsible for development of Club and facilities therein which would be essential for financing the running, maintenance and future development of Cricket Academy/ Gymkhana. The DVGC shall engage the Promoter or his agents/ assigns for undertaking the said activities for such concessions and terms and conditions as mutually agreed between the parties.

2. Agreement between DVF & DVGC: DVF shall therefore enter into an agreement with DVGC for carrying out the development activities on the said property in the light of responsibilities cast on it by the NOV'07 Agreement for such consideration and on such terms and conditions which are briefly set out in Appendix 1 to this MOU.

3. Agreement(s) with the Promoter: The said DVGC, not having direct experience or exposure in matters related construction and development; running and managing a Club with all its amenities and services or in regard to raising finance for such ventures shall enter into contract/s with the Promoter who shall act as project consultants and advisers on a turnkey basis. The said promoter has also expressed willingness to undertake some or all of the assigned tasks eit