KETAN CHAMPAKLAL DIVECHA Vs. DGS TOWNSHIP PVT. LTD.

JUDGEMENT

(1.) A fundamental objection is raised on behalf of the respondents as regards the very maintainability of the present petition and application filed on behalf of the petitioner - applicant under Ss. 9 and 11 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as the 'Arbitration Act'). According to the respondents, the arbitration clause, in the present case, is so worded and structured that the petitioner, being a member of the respondent No.2 - Co-operative Housing Society, alone cannot seek resolution of disputes under the arbitration clause. It is indicated that the disputes capable of resolution under the arbitration clause are disputes between the Society and the respondent No.1-Developer. It is claimed that the petitioner as a lone member of the Society, is incapable of invoking arbitration. Consequently, it is alleged that since the invocation itself is defective, the proceedings cannot continue in the present case.

(2.) Shorn of unnecessary details, the facts leading to filing of the present proceedings are that a development agreement was executed on 25/3/2021 for re-development of the property of the respondent -society, of which, the petitioner is one of the members. There are 216 members of the society. The development agreement shows that the respondent No.2 - Society, 216 members of the Society and the respondent No.1 - developer are signatories to the said agreement. Simultaneously, with the execution of the Development Agreement, a Power of Attorney was executed by the respondent - society in favour of the respondent - developer to undertake development in terms of the said development agreement.

(3.) As per the development agreement, the respondent - developer was to undertake re-development of the property in accordance with Regulation 33(7)(B) of the Development Control and Promotion Regulations for Greater Mumbai, 2034 (DCPR 2034). The respondent -developer was to develop the property and utilize the permissible Floor Space Index (FSI) as per the DCPR 2034, read with the terms and conditions of the development agreement. It was further agreed that if the development potential was to increase beyond the permissible FSI under Regulations 33(7)(B), such increase would be shared between the respondent - developer and respondent - society in a ratio of 50:50.