LIBERTY GARDEN CHS LTD Vs. K.T. GROUP

JUDGEMENT

(1.) By consent of parties both the Arbitration Petitions and the Notice of Motion were heard together and are being disposed of by a common judgment. By these two arbitration petitions, both the parties have challenged part of the Arbitral Award rendered by the learned arbitrator filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as "Arbitration Act" for short), Notice of Motion No. 1586 of 2019 is filed by the members of Liberty Garden Co-operative Housing Society Limited inter-alia praying for stay of the impugned award in respect of findings and directions in paragraph nos. 98, 102, 104, 108, 109, 111, 113 and 124 of the award. The applicant also seeks an order and directions against the respondent to handover possession of the property and structure standing on the suit plot to the private receiver and/or the petitioner in compliance with paragraph no. 109 of the impugned award as further amended on 11th February, 2009. M/s. K.T. Group has also challenged the order dated 14th February, 2010 passed by the learned arbitrator under Section 33 of the Arbitration Act in the Arbitration Petition in 802 of 2019. Some of the relevant facts for the purpose of deciding both these petitioners and notice of motion are as under :-

(2.) The petitioner in Arbitration Petition No. 690 of 2019 was the claimant in the arbitral proceedings whereas the petitioner in Arbitration Petition No. 802 of 2019 was the respondent. The parties are referred in this judgment are as per their original status in the arbitral proceedings. On 19 th December, 2013, the claimant and the respondent entered into a registered Development Agreement and Power of Attorney in respect of the property land bearing CTS No. 764 admeasuring 795.5 sq. mts. at Scheme No. II/Plot No.4 Mamlatdar Wadi Ext. Road, Malad (West), Mumbai 400064 along with buildings standing thereon consisting of 2 wings comprising ground plus 3 upper floors for development. Respondent was required to carry out construction under the said agreement. The power of attorney was executed by the claimant in favour of the respondent conferring with various powers in respect of the said development rights granted in favour of the respondent by the claimant.

(3.) In clause (i) of the said Development Agreement, it was provided that the buildings were constructed in 1968 and were in a dilapidated condition. It was further provided that the claimant did not have sufficient funds to reconstruct the building and thus had decided to develop the said property through the respondent. Under clause (p) of the said Development Agreement, the respondent was entitled to exploit maximum available Floor Space Index and Transferable Development Rights. In clause l of the said Development Agreement, it was provided that the respondent had expertise in development/redevelopment of properties and had sufficient financial means for such redevelopment. The responsibility to produce TDR was of the respondent under clause (q). It was further provided that the recitals shall form an integral part of the Development Agreement.