Case Note & Summary
The petitioner, M/s. Gandhi Adhivitiya Combine, a developer, filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996, seeking appointment of a Court Receiver and a mandatory injunction directing the respondent, Chandravadan Bharat Myatra, a tenant, to hand over possession of a tenement. The dispute arose from a development agreement dated 1st February 1996, under which the tenant agreed to vacate the existing structure in exchange for a permanent alternative accommodation. The developer commenced construction and claimed the tenant failed to vacate despite repeated requests. The tenant filed a suit in 2007 (L.C. Suit No. 106 of 2007) against the developer and others, and an ex parte decree was passed on 4th September 2010. The developer invoked the arbitration clause in 2008. The court held that the petition involved disputed questions of fact, such as whether the tenant was obliged to vacate before the developer provided alternative accommodation, and whether the developer had complied with its obligations. The court noted that the balance of convenience did not favor the developer, as the tenant was in possession and the developer had not shown a prima facie case for mandatory injunction. The petition was dismissed, leaving the parties to pursue arbitration.
Headnote
A) Arbitration - Interim Measures - Section 9 of the Arbitration and Conciliation Act, 1996 - Mandatory Injunction - The court considered whether a developer could seek possession of a tenement from a tenant pending arbitration. The court held that disputed questions of fact regarding the tenant's obligation to vacate and the developer's compliance with the agreement could not be decided in a Section 9 petition and required trial. The petition was dismissed as the balance of convenience did not favor the developer. (Paras 1-10)
B) Property Law - Development Agreement - Tenant's Rights - The agreement dated 1st February 1996 required the tenant to hand over possession before demolition, but the developer had to provide alternative accommodation. The court noted that the tenant had filed a suit and obtained an ex parte decree, indicating disputed facts. The court declined to grant interim relief. (Paras 2-4)
Issue of Consideration
Whether the petitioner is entitled to an order of appointment of Court Receiver and mandatory injunction directing the respondent to hand over possession of the tenement pending arbitration, under Section 9 of the Arbitration and Conciliation Act, 1996.
Final Decision
The petition is dismissed. No order as to costs.
Law Points
- Section 9 of the Arbitration and Conciliation Act
- 1996
- interim measures
- mandatory injunction
- appointment of court receiver
- disputed questions of fact
- balance of convenience
- prima facie case
Case Details
2012 LawText (BOM) (10) 80
Arbitration Petition No. 489 of 2011
Mr. Anil Mishra along with N. Rizvi i/by M/s. Thakore Jariwala & Associates for the petitioner; Mr. M.P. Vashi alongwith Mr. Makrand Kale i/by M/s. M.P. Vashi & Associates for respondent
M/s. Gandhi Adhivitiya Combine
Mr. Chandravadan Bharat Myatra
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Nature of Litigation
Petition under Section 9 of the Arbitration and Conciliation Act, 1996 seeking interim measures pending arbitration.
Remedy Sought
Petitioner sought appointment of Court Receiver and mandatory injunction directing respondent to hand over possession of tenement.
Filing Reason
Respondent failed to vacate the tenement as per development agreement despite repeated requests, and petitioner invoked arbitration.
Previous Decisions
An ex parte decree was passed in L.C. Suit No. 106 of 2007 on 4th September 2010 in favor of the respondent and her husband against the petitioner and others.
Issues
Whether the petitioner is entitled to interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 for possession of the tenement.
Whether disputed questions of fact regarding the development agreement can be decided in a Section 9 petition.
Submissions/Arguments
Petitioner argued that respondent failed to vacate despite agreement and construction was at advanced stage, requiring interim relief.
Respondent contended that the petition involved disputed questions of fact and that the petitioner had not complied with its obligations under the agreement.
Ratio Decidendi
In a petition under Section 9 of the Arbitration and Conciliation Act, 1996, the court cannot decide disputed questions of fact that require trial. The balance of convenience did not favor granting a mandatory injunction for possession, as the tenant was in possession and the developer had not shown a prima facie case.
Judgment Excerpts
This petition is filed under Section 9 of the Arbitration & Conciliation Act, 1996.
The Petitioner seeks an order of appointment of Court Receiver and mandatory injunction against the respondents to forthwith hand over possession of existing tenement/structure occupied by the respondent to the petitioner.
It is not in dispute that pursuant to the said agreement, the petitioner has started construction on the plot on which the suit structure is situated and is at advanced stage.
Procedural History
The petitioner filed Arbitration Petition No. 489 of 2011 under Section 9 of the Arbitration and Conciliation Act, 1996. The respondent had previously filed L.C. Suit No. 106 of 2007 in the City Civil Court, which resulted in an ex parte decree on 4th September 2010. The petitioner invoked arbitration on 27th October 2008. The petition was heard and dismissed on 5th October 2012.
Acts & Sections
- Arbitration and Conciliation Act, 1996: Section 9
