2010(2) ALL MR 127
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. KHANWILKAR, J.
Della Developers Pvt. Ltd.Vs.Noble Organics Pvt. Ltd. & Anr.
Arbitration Petition No.528 of 2008
4th January, 2010
Petitioner Counsel: Ms. RAJANI IYER , Mr. M. S. DOCTOR , Ms. KIRTIDA CHANDARANA , M. Humranwala
Respondent Counsel: Mr. R. M. KADAM,Mr. S. U. KAMDAR , Mr. A. S. KAMAT , Kartikeya & Associates
(A) Arbitration and Conciliation Act (1996) S.17 - Specific Relief Act (1963), S.14(3)(c)(iii) - Interim relief in Arbitration proceedings - Claim for specific performance of development agreement which was a joint venture - Agreement refers to terms agreed by developer for starting and completion of development work - Petitioner/developer to contribute by way of construction cost and respondent by giving land - No steps taken for approvals, division of plots, submission of plans etc. by developer - Developer wants to change purpose of construction from IT park to Hotel project - Change made unilaterally by preparing plan of one tower only instead of two - Developer also could not raise fund of Rs.2 cr. payable in 6 months to respondent - Failure of developer to discharge obligations created by agreement - Balance of convenience tilted towards respondents - No specific performance of development agreement can be granted - Interim relief during pendency of Arbitration proceedings is liable to be rejected. (Para 16)
(B) Specific Relief Act (1963), S.14(3)(c) - Specific performance of development agreement - Enforceability - Petitioner/developer not in possession of property - Development agreement says developer to enter upon land only at time of construction - As one out of three conditions u/s.14 is not fulfilled - Specific relief cannot be granted. Notice of motion No.3820 of 2006, dt.13-4-2007 - Followed. (Para 17)
Chheda Housing Development Corporation Vs. Bibijan Shaikh Farid, 2007(3) ALL MR 780=2007(3) Mh. L.J. 402 [Para 10]
Vipin Bhimani Vs. Smt. Sunanda Das, AIR 2006 Cal. 209 [Para 10]
M/s. Avdel Tools & Services Vs. M/s. Trufit Fasteners Pvt. Ltd., 2008(6) ALL MR 611 [Para 16]
Her Highness Maharani Shantidevi P. Gaikwad Vs. Savjibhai Haribhai Patel, (2001)5 SCC 101 [Para 17]
JUDGMENT :- This Petition under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act) takes exception to the order passed by the sole Arbitrator dated 1st August, 2008 on Application dated 14th April, 2008 filed under Section 17 of the Act in the Arbitration Dispute between the parties herein.
2. Briefly stated, an Agreement styled as Development Agreement was executed between the Petitioners and Respondents on 17th March, 2006. According to the Petitioners, it was an arrangement to form a joint venture to jointly develop the property in question and the Petitioners would become entitled to a 50% share with all the rights and benefits arising thereunder. The Petitioners were to contribute aggregate amount of Rs.7.50 Crores. Whereas, the Respondents were to contribute by way of land which was to be developed as a joint venture. However, on account of certain differences and disputes between the parties in view of the arbitration clause in the said Agreement, the dispute was referred to the sole Arbitrator. In the said Arbitration proceedings, the Petitioners took out application under Section 17 of the Act for interim protection during the pendency of the proceedings. That Application came to be rejected by the sole Arbitrator by the impugned decision.
3. The prima facie opinion recorded by the sole Arbitrator in rejecting the Application preferred by the Petitioners is broadly on two considerations. Firstly, it is noted that the Agreement between the parties was a pure and simple Development Agreement to develop the property and share the profits. Relief of specific performance cannot be invoked in respect of such an Agreement. He has further opined that prima facie, the Petitioners/Claimants had failed to carry out all its obligations and that the balance of convenience also tilted in favour of the Respondents and against the Claimants.
4. In the present Petition, the findings reached by the sole Arbitrator have been assailed on the argument that the same is manifestly wrong and incorrect. According to the Petitioners, on construing the Agreement in question as a whole, it is a joint venture arrangement agreed upon between the parties to jointly develop the suit property and not a pure and simple Development Agreement with no rights in the property to be developed. Even with regard to the finding recorded by the sole Arbitrator on the issue as to whether the Petitioners were ready and willing to comply with their obligation specified in the suit Agreement have been criticized with reference to the terms of the Agreement as also the subsequent correspondence exchanged between the parties and the Minutes of the joint meeting held to discuss the relevant aspects arising from the Development Agreement. According to the Petitioners, in any case, the non-compliance of the obligations under the Development Agreement by the Petitioners have been waived by the Respondents and therefore, the same cannot be made the basis to deny interim protection. It is lastly submitted that in any case, since status-quo arrangement in respect of the suit property is continuing on account of the statement made in the present proceedings before this Court on 19th December, 2007, the same arrangement can continue and the sole Arbitrator can be directed to finally dispose of the Arbitration proceedings expeditiously till which time, the same interim arrangement should prevail.
5. The Respondents on the other hand, have supported the view taken by the sole Arbitrator on both the counts and submit that the material on record clearly establishes that the Petitioners were not ready and willing to fulfill its obligations under the suit Agreement. Besides, it is a case of repudiation of contract, for which reason, relief of specific performance as prayed, cannot be granted to the Petitioners. It is further submitted that the claim of the Petitioners, if accepted, would require continuous supervision of the performance of the contract, which cannot be permitted and relief in such matter cannot be granted as it is hit by provisions of Section 14(1)(d) of the Specific Relief Act. Moreover, since the contract has been legitimately terminated by the Respondents, the Petitioners were not entitled to interim relief whatsoever. It is submitted that therefore, the Petition be dismissed being devoid of merits.
6. The sole Arbitrator in the impugned decision has broadly considered these issues. In the first place, he prima facie found that the Agreement is an arrangement for development without creating any right in the property. Secondly, the Claimant does not appear to have carried out all its obligation. Thirdly, the balance of convenience was against grant of any interim relief.
7. Insofar as the first issue is concerned as to whether it was a case of Agreement for Development without creating any right in the property, the sole Arbitrator has essentially adverted to the recital, Clause 8, Clause 11, Clause 16 and Clause 28 of the suit Agreement to prima facie opine that the Agreement was a pure and simple Development Agreement. Indeed, the sole Arbitrator has in addition, referred to the correspondence exchanged between the parties including the letters dated 10th July, 2007, 17th July, 2007 and 24th July, 2007. It is found that no right or interest of any kind is created in respect of the property in favour of the Claimant under the Agreement and it was purely a Development Agreement.
8. To consider the correctness of this finding, I would readily agree with the submission of the Petitioners that the Court will have to interpret the Agreement as a whole, even though the Agreement is styled as Development Agreement. Indeed, the title of the document, by itself, cannot be the basis to straightaway jump at the conclusion that it is purely a Development Agreement without creating any right or interest in respect of the suit property in favour of the Petitioners/Claimant. The recital of the Agreement at page 24 of the paper-book clearly mentions that the Petitioners had approached the Respondents for joint development of the two plots referred to in the Agreement and the Respondents have agreed to do so in the manner and on the terms and conditions recorded in the Agreement. On the same page, the next recital reiterates that the Respondents have agreed to jointly enter into the Development Agreement with the Petitioners. Clause 4 of the Agreement at page 29 envisages that the Respondents shall jointly with the Petitioners develop their respective plots being Plot No.D-43/3 admeasuring 7104 square meters and D-43/4 admeasuring 4467 square meters (in aggregate 11,571 square meters) for the purpose of constructing an Industrial Complex and an Information Technology Park ('IT Park') as per the prevailing norms of MIDC. Clause 5 provides that the Respondents shall contribute the land and the Developers shall contribute by way of cost of construction up to a sum of Rs.7.50 Crores. Clause 6 refers to the manner in which the development should proceed. It provides that the parties shall develop the land in phases. It articulates four different phases in which the development would take place. For considering the point in issue, it may be useful to refer to sub-clause (d) of Clause 6-B of the Agreement which envisages that the entire proceeds derived out of the sale of the Industrial Complex comprising of area not less than 25000 square feet shall be shared by the parties referred to therein in the ratio of 30:20:50. The Petitioners being Developers, would get 50% share therein. The balance saleable area shall be sold and/or disposed of by the parties to the Agreement and the entire sale proceeds of the balance saleable area shall be utilised for the construction of an IT Park and shall be treated as the contribution of the parties to the Agreement in the said proportion. It will be useful to refer to clause 6-D sub-clause (a)(i) thereof, which provides that upon completion of development and construction of the IT Park, the Petitioners/Developer shall allot and handover on ownership basis 30% of the saleable built up area of the said IT Park to NOPL and 20% of the saleable built up area thereof to NPPL and the Developer shall be entitled to retain and appropriate unto itself the balance 50% of the saleable built up area of the said IT Park. Besides, Sub-clause (a)(iii) of Clause 6-D further provides that the Developers shall in their absolute discretion be at liberty to dispose of their 50% saleable built up area and common areas of the IT Park retained by them in terms of the Agreement. Clause 11(e) provides that the Developer shall enter upon the land for the purpose of construction/development. Once again, in Clause 15, it has been reiterated that notwithstanding anything herein contained at the stage of the second and third phase of the project, each of the parties to the Agreement shall be free to sell/alienate/create charge in any manner whatsoever out of their respective share of the project at such price or upon such terms and conditions as they may deem fit, subject to the norms laid down by MIDC. Clause 18 of the Agreement further provides that should there be any additional FSI and/or TDR or any other advantage, benefit, profit or privilege arising out of the land becomes available in future on account of any change, amendment or relaxation in the Development Control Rules, Greater Mumbai 1991 or any other Building Rules Regulations or Bye-Laws or by reason of any reinterpretation thereof, the same shall vest in the ratio of 50:30:20 between the Developer, NOPL and NPPL respectively.
9. On conjoint reading of the above Clauses, prima facie, it appears to me that the tenor of the arrangement arrived at between the parties under the suit Agreement is one of a joint venture wherein the Petitioners would contribute amount up to Rs.7.5 Crores by way of cost of construction and the Respondents would contribute by way of land for development. The ratio in which the developed area is to be apportioned between the parties is also well defined. The Agreement clearly enables the Petitioners to deal with the developed property to the extent of its share specified under the Agreement on the stated terms. Such provision is clearly in the nature of creating right or interest in the immovable property. If there was any doubt, the same has been put at rest by the parties themselves by incorporating provision such as Clause 28 in the Agreement. It postulates that in the event of any breach of the terms, conditions, covenants contained in this Development Agreement by any party, the other party shall be entitled to specific performance of this Development Agreement by the defaulting party and to obtain suitable injunctive reliefs from a Court and/or Arbitrator and/or to claim damages, costs, charges and expenses, if any.
10. On reading the above said Clauses of the Agreement as a whole, prima facie, in my view, although the document is titled as Development Agreement, it is in the nature of joint venture Agreement to develop the suit land and it creates right or interest in the part of the immovable property in favour of the Petitioners to the extent defined by the Agreement itself. It is, therefore, not possible to sustain the opinion noted by the sole Arbitrator on this count. It is unnecessary to burden this Judgment with the analysis of the decisions pressed into service in the case of Chheda Housing Development Corporation Vs. Bibijan Shaikh Farid & Ors. reported in 2007(3) Mh.L.J. 402 : [2007(3) ALL MR 780] and Vipin Bhimani & Anr. Vs. Smt. Sunanda Das & Anr. reported in AIR 2006 Cal. 209. In my opinion, the Petitioners would succeed on this count.
11. Even so, the crucial question is: whether the prima facie opinion recorded by the sole Arbitrator on the issue that the Claimant has not carried out its obligations under the Agreement and shown readiness and willingness to discharge the same, is appropriate? In other words, even if the Petitioners have succeeded on the first count discussed earlier, but if were to fail on the issue under consideration, in that case, the order under Appeal would not require any interference at the hands of this Court.
12. We shall straightaway analyse the basis on which the sole Arbitrator has answered the issue under consideration. That discussion can be found from Paragraphs 12 onwards. It is noted that although the Petitioners had promptly appointed an Architect but no further steps seem to have been taken for obtaining the requisite approvals of the concerned Authorities. As per Clause 7 of the Agreement, the Respondents were entitled to draw collectively a sum up to and not exceeding Rs.Two Crores at the expiry of six months from the date of execution of the Agreement. That could not be done as the Petitioners failed to make further contribution which they were liable to do under the Agreement. It is noted that the correspondence exchanged between the parties does not suggest that failure to get the plans sent for approval was due to any default on the part of the Respondents. It is further noted that the original plan attached with the Agreement was for construction of two towers whereas, the plan prepared for being sent for approval of the Petitioners/Claimant was only for one tower. Moreover, there was no explanation as to what the Claimant has done after December, 2005. The Claimant also did not appear to have taken steps for submission of plan and/or requisite application for sub-division of Plot No.D-43/3 in Phase-I. The Claimant, however, has taken a stand that it was not its obligation which stand is incorrect, as Clause 6(a) read with 11(a), (b), (c) and (d) makes it clear that all approvals were to be obtained by the Petitioners/Claimant as Developer. On this basis, prima facie finding has been recorded that the Petitioners/Claimant were in remiss in this regard.
13. In Paragraph 13 of the impugned decision, the sole Arbitrator has then noted that prima facie, the stand of the Petitioners that the delay had occasioned on account of indecision on the part of the Respondents was incorrect. Whereas, by letter dated 20th July, 2006, the Respondents had sent to Mr. S. N. Iyer of Positron Architects, appointed by the Petitioners/Claimant, the relevant documents with a request to process the application for approval from MIDC for the first phase of the project. This was not done. It is further noted that the letter of 25th July, 2006 written by the Claimant clearly mentioned that the Claimant was to bear the stamp duty and registration charges for the Development Agreement. The amount of Rs.Two Lakhs paid as advance towards registration fees was returned along with letter dated 4th August, 2006 sent by Solicitors of the Respondents as the Petitioners/Claimant made allegations against the said Solicitors. No default could be attributed to the Respondents. It is also noted that unilateral change was made by the Petitioners while submitting proposal only of one tower - even though such proposal would not exploit the full potential of the land and FSI would be wasted - inspite of the original Agreement envisaging construction of two towers. It is because of this change, delay had occasioned. It was erroneous assumption of the Petitioners and not due to any default committed by the Respondents. Moreover, the idea of the Hotel project instead of IT Park project was mooted by the Claimant as can be seen, for which reason, the Respondents were not responsible at all and the Claimant was wrongly attributing default to the Respondents. The sole Arbitrator has also considered the efficacy of the circular issued by the Government of Maharashtra dated 12th July, 2003 which was pressed into service by the Petitioners to reject the stand of the Petitioners. It is on this basis, the sole Arbitrator recorded prima facie finding that the Claimant does not appear to have carried out all its obligations. The question is: whether this view taken by the sole Arbitrator needs any interference?
14. According to the Petitioners, the Petitioners had admittedly paid sum of Rs.1.75 Crores on execution of the Agreement as per the terms of the Agreement. Thereafter, the Respondents utilised the said amount to remove the charge in relation to the suit property held by Rupee Co-operative Bank with respect to portion thereof. According to the Petitioners, the delay was essentially because of the rethinking done by both the parties to exploit the suit property to its full potential since they were both entitled to 50% of the area that was to be developed. Both the parties were keen on maximising their profit from the property. The parties therefore met to discuss aspects in relation to these and incidental matters. Reliance is placed on the correspondence exchanged between the parties which according to the Petitioners would show that as late as till May, 2007, the Respondents expressed their readiness and willingness to proceed with the Agreement namely documents at Exhibit M to Exhibit Q. Reliance is placed on these documents also to contend that the Respondents withdrew the objection that they may have had with regard to the alleged delay on the part of the petitioners. For that reason, it was not open to the Respondents to unilaterally assume that time was essence of the Agreement which stand is taken for the first time in letter dated 10th July, 2007 and based on that stand, proceeded to terminate the Agreement vide letter dated 24th August, 2007 as also to forfeit the amount of Rs.1.75 Crores already received. According to the Petitioners, time was never the essence of the Agreement, as the parties were fully aware that the project may take some time and for that reason, provision was made that in case of any delay in completion of the project on account of his acts of commission and omission, the Developer shall bear excess interest burden on the borrowing of other cost resulting from such delay.
15. Insofar as the prima facie opinion recorded that the Petitioners failed to contribute further amount as was required and more particularly which deprived the Respondents from drawing amount of Rs.Two Crores in terms of Clause 7 of the Agreement, it is submitted that such finding is on account of complete misunderstanding and misreading of the terms of the Agreement inasmuch as the amount to be contributed by the Petitioners was for cost of construction and since the work of construction had not commenced the question of bringing in further amount did not arise. Moreover, the Respondents as per Clause 7 of the Agreement were entitled to collectively draw an amount not exceeding Rs.Two Crores "after the expiry of the period of six months" from the execution of the Agreement from the project. Since the construction itself had not commenced, there was no reason for the Petitioners to contribute any further amount and more so, the Respondents could not have invoked their right to draw the amount from the project merely because period of six months from the execution of the Agreement was over.
16. To examine the question as to whether the Petitioners were always ready and willing to perform their obligation under the Agreement, we may refer to the relevant Clauses as per which the Petitioners were expected to perform their part of the Agreement. Clause 5 of the Agreement provides that the Respondents would contribute land and the Petitioners shall contribute by way of cost of construction up to Rs.7.5 crores. Clause 6 provides for development of the land in phases. The Agreement envisages a joint venture to develop the property as IT Park. As per Clause 6(a), the parties were expected to obtain requisite approvals for division of Plot No.D-43/3 and then first develop Plot No.D-43/3-A which was the second phase of the development work. This is not done. Clause 8 of the Agreement refers to the terms agreed by the Developer and his undertaking in relation to commencement and completion of the development on the terms specified therein. Amongst others, it provides that the construction of 25000 square feet of the Industrial Complex (Phase-II) to be commenced and completed within a period of six months from the date of receipt of all approvals. This obligation could be discharged only after the plans were duly approved. Before that the division of Plot No.D-43/3 was to be done. However, as found by the Arbitrator, even that step was not taken forward. Clause 11 of the Agreement records the undertaking given by the Petitioners/Developer about the activities to be taken by it and to keep the Respondents informed about the same. Amongst others, the Developer was expected to appoint Architects, Contractors, enter into various contracts, arrangements, understanding as may be required for the development of the land, prepare plans and apply for and obtain approvals of all the requisite authorities including MIDC. Clause 12 further provides that the Developer shall apply for various approvals, permissions and sanctions including passing of plans. However, as has been observed by the sole Arbitrator that besides the step taken for appointing Architect, the Petitioners have not taken any other step to effectuate the Development Agreement. More over, nothing was done for division of the plot which was the first step to be taken as per Clause 6-A. That prima facie finding of the sole Arbitrator, to me, seems to be correct. There is no reason to depart from the said opinion recorded by the sole Arbitrator. The explanation offered by the Petitioners for the delay has also been taken into account by the sole Arbitrator. I am in agreement with the prima facie conclusion so reached by the sole Arbitrator. It has been rightly found that the Developer except appointing Architect, did not discharge any other obligation, much less, of division of plots or submission of plans to the Competent Authority. As a matter of fact, the plans prepared at the instance of the Petitioners were not consistent with the terms agreed upon between the parties. Significantly, the case of the Petitioners is that the parties were in the process of discussion to incorporate several changes from the original Development Agreement, which position can be discerned from the Minutes of Meeting held on 31st August, 2006. The Minutes also record that there was possibility of entering into supplemental Agreement. In the Minutes held on 20th June, 2006, it has been noticed that it was necessary to review the whole project keeping in mind the new developments and Government Policies. From this stand, it would, in fact, follow that the Petitioners were keen to change the terms of the Development Agreement in question. According to the Petitioners, the same cannot be taken forward unless changes were to be effected therein. More over, the plans as prepared by the Petitioners through its appointed Architect were at variance with the Development Agreement. The Respondents cannot be blamed for that situation at all. It is the Petitioners who were keen to alter the purpose of construction from one user to the other i.e. from IT Park, which was stated in the Development Agreement to Hotel Project. The Agreement envisages two towers to be constructed, whereas the plan prepared at the instance of Petitioners was for only one tower. That change as not at the instance of the Respondents as such. It was unilateral change introduced by the Petitioners. Suffice it to observe that the Respondents cannot be blamed for the situation of no further steps taken by the Petitioners as were required under the Development Agreement, in particular, of submission of plans to the Competent Authority consistent with the terms of the Development Agreement. Not only that, the Petitioners did not contribute any further amount for the Project except the original amount of Rs.1.75 Crores paid at the time of execution of the Development Agreement. Whereas, Clause 5 of the Agreement obligates the Petitioners to bring in amount of Rs.7.5 Crores. The argument of the Petitioners, however, is that the question of contributing further amount in terms of Clause 5 would arise only when the construction work on the site was to begin. Since that stage had not matured, there was no such obligation. This argument may be valid only if the Court were to read Clause 5 by itself. Under Clause 7, the Respondents became entitled to collectively withdraw from the Project, an amount not exceeding Rs.Two Crores after the expiry of a period of six months from the execution of the Agreement. The language is quite clear and unambiguous. On expiry of period of six months from the date of the Agreement, the Respondents became entitled to withdraw up to Rs.Two Crores from the Project. The argument of the Petitioners is that the amount could be withdrawn only from the Project and that right can be given effect to only after the construction work after requisite approvals of the plan were to commence. It is not possible to countenance such submission. As has been found while considering Point No.1, it was a joint venture Project. It would not commence only from the stage of commencement of construction activity on the site. To give natural meaning to Clause 7 of the Agreement, it obliged the Petitioners to ensure that irrespective of the fact whether construction activity had commenced or not, a sum of up to Rs.Two Crores was to be made available for the project, which in turn, could be withdrawn by the Respondents soon after the expiry of period of six months from the execution of the Development Agreement. The Development Agreement was executed on 17th March, 2006. According to the Petitioners, in view of the dictum of the Division Bench of this Court in the case of M/s. Avdel Tools & Services Vs. M/s. Trufit Fasteners Pvt. Ltd. reported in 2008(6) ALL MR 611, it was not necessary for the Petitioners to bring the entire funds or to exhibit that it was capable of paying such amount. That argument may be valid in respect of the remainder amount. Insofar as the obligation in respect of creating project fund up to Rs.Two Crores to effectuate Clause 7, commenced soon upon expiry of six months after the execution of the Agreement. At least that amount became payable by the Petitioners, which obligation has not been discharged. On the other hand, the land became immediately available for commencement of the joint venture Project which was to be contributed by the Respondents in terms of the Development Agreement. Therefore, prima facie conclusion reached by the sole Arbitrator that the Petitioners have not discharged its obligation under the Agreement, is unexceptionable. The argument of the Petitioners that time was not the essence of the contract, does not take the matter any further. More over, prima facie, there is no substance in the plea of waiver by the Respondents of lapse of the Petitioners. The correspondence and the minutes of the meeting do not substantiate that position.
17. There is another aspect which would be crucial for deciding the controversy on hand. According to the Respondents, the Petitioners were not entitled for relief of specific performance of the Development Agreement, assuming that it were to be a joint venture Agreement creating rights in favour of the Petitioners and is not a pure and simple Development Agreement. It was submitted that the contract was in the first place, determinable and more so, the requirements of sub-clause (c) of Sub-section (3) of Section 14 of the Specific Relief Act, 1963 were not fulfilled in the present case. As a result, on account of mandate of Section 14 of the said Act the contract cannot be specifically enforced. More over, if the relief of specific performance was to be granted, it would require the Court to continuously supervise the activities to be undertaken under the Agreement. Even in such a situation, relief of specific performance cannot be granted. To buttress the above submission, reliance is placed on the decision of the Apex Court in the case of Her Highness Maharani Shantidevi P. Gaikwad Vs. Savjibhai Haribhai Patel & Ors. reported in (2001)5 SCC 101 as also on the unreported decision of Justice D. K. Deshmukh dated 13th April, 2007 in Notice of Motion No.3820 of 2006. In the unreported decision, this Court has restated the position that decree for specific performance of the contract can be granted, provided three conditions specified under Section 14(3)(c) of the Specific Relief Act are satisfied. If any one of the condition is not satisfied, the question of granting decree of specific performance does not arise. Insofar as present case is concerned, out of the three conditions specified in Section 14(3)(c), prima facie, from the terms of the Agreement as executed between the parties, there is nothing to indicate that the Petitioners in pursuance of the contract, was put in possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed. There is no express clause in the Development Agreement which puts the Petitioners/Developer in possession of the property. Sub-clause (e) of Clause 11 of the Agreement would be useful for our purpose. Clause 11 pertains to the activities to be performed by the Developer and to keep the Respondents informed about the same. Clause (e) thereof provides that the Developer may enter upon the land for the purpose of construction/development. This Clause would come into play only when the construction/development activity was to in fact commence. At that stage, he Developer would enter upon the land for the purpose of construction/development. Assuming that the Petitioners were to assert that they have already taken over possession of the land and/or entered upon the same, that fact has not been informed to the Respondents as is required by Clause 11 of the Agreement. Suffice it to observe that since the Petitioners in pursuance of the Contract have not obtained possession of the land either of the whole or any part thereof, one of the condition specified in Section 14(3)(c) is not fulfilled. That would militate against the Petitioners. Insofar as the argument advanced relying on the decision of the Apex Court in the case of Her Highness Maharani Shantidevi P. Gaikwad (supra) that the Court shall not grant decree of specific performance if it were to involve continuous supervision is concerned, that aspect can be answered at the end of the trial after the entire evidence becomes available and the Court would then examine as to the nature of relief that requires to be granted in the matter.
18. Considering the above, the question of interfering with the prima facie finding and the ultimate conclusion reached by the sole Arbitrator in rejecting the Application does not arise at all. The sole Arbitrator, in my opinion, has also correctly found that the balance of convenience was tilted in favour of the Respondents in the fact situation of the present case. Even for that reason, the Petitioners would not be entitled for any interim relief.
19. It is lastly argued that the arrangement recorded in the order dated 19th December, 2007 in respect of the suit property has been continued for such a long time. In the interregnum, the Respondents have filed their reply before the sole Arbitrator. In this situation, it would be appropriate to continue the same arrangement for some more time with further direction to the Arbitrator to dispose of the Arbitration proceedings expeditiously. The argument though attractive, does not commend to me. Neither on the issue of prima facie case nor on the issue of balance of convenience, the Petitioners/Claimant have been able to make out any case. Inspite of that, directing the Respondents to maintain the same arrangement during the pendency of the Arbitration proceedings and may be later on to be continued if the Award was to be assailed before the Court, would be prejudicial to the Respondents. Accordingly, this submission will have to be only stated to be rejected.
20. As is noted throughout the Judgment, it is once again reiterated that each of the finding or opinion recorded in this Judgment is only a prima facie view recorded to consider the prayer for interim relief. Needless to observe that all aspects on every issue raised in the Arbitration proceedings will have to be decided on its own merits in accordance with law.
22. At this stage, Counsel for the Petitioners prays that the Petitioners may consider of taking the matter in appeal, for which reason, the interim arrangement which has continued during the pendency of this Petition as recorded in the order dated 19th December, 2007 may be continued for some time.