MAHINDRA MANGILALJI JAIN Vs. RADHA CONSTRUCTION COMPANY

JUDGEMENT

(1.) This is an Application filed by the Applicant under Sec. 11 of the Arbitration and Conciliation Act, 1996 (Arbitration Act) for appointment of an Arbitrator alongwith Petition under Sec. 9 for seeking interim measures before commencement of the arbitral proceedings. In Sec. 9 Petition, Petitioner seeks direction against the Respondents for execution of registered Agreement/Deed for Sale of premises admeasuring 5,000 sq.ft. as per Allotment Letter dtd. 16/10/2017 as agreed under the Memorandum of Understanding dtd. 16/10/2017 (MOU). Petitioner also seeks furnishing of Bank Guarantee for amount of Rs.17,60,00,000.00 for securing the amount payable to him under Memorandum of Understanding dtd. 16/10/2017. The Petitioner also seeks injunction from creating third party rights in respect of the Petition property as well as disclosure in respect of transactions effected for various premises in the building named "Ventura Commercial Hub".

(2.) Respondent No.1 is a Partnership Firm engaged in the business of developing properties in India. The Firm initially comprised of Respondent Nos.2 to 5 as the partners vide Partnership Deed dtd. 1/10/2010. The Firm has undertaken a project for construction of commercial building named "Ventura Commercial Hub" at land bearing Survey No.314 Hissa No.4 C. T. S. Nos.460A, 460/1 to 2l4, 46l, 46l/l to 11, admeasuring 6823.5 sq.m. at Village-Malad, Taluka -Borivali, Mumbai Suburban District. By Agreement dtd. 28/1/2013, Respondent No.6 was inducted as incoming partner in the Firm. Respondent Nos.2 to 6 approached the Petitioner through Respondent No.7. Petitioner and Respondent No.7 are partners in M/s. Manibhadra Developers. Respondent Nos. 2 to 7 represented to the Petitioner that the construction of the project was ongoing and requested him to invest monies in the project. By Deed dtd. 11/2/2015. Petitioner and Respondent No.7 were admitted as partners for Respondent No.1-Firm. According to the Petitioner, he initially invested amount of Rs.1,84,59,000.00 in the year 2014-15. He was given 20% share in the partnership firm. The Petitioner claims to have made further payment of Rs.62,40,000.00 after his admission in the Firm and this is how his total contribution in the Firm was Rs.2,46,99,000.00. By further Deed dtd. 11/12/2015, Respondent No.8 was admitted in the Firm as incoming partner and according to the Petitioner, his 20% share in the Firm remained unaffected.

(3.) According to Petitioner, Respondent No.7 approached him on 16/10/2017 and called upon him to retire from the Firm if he was not willing to invest further amount. Accordingly, Retirement-cum- Partnership Deed dtd. 16/10/2017 was executed, under which Petitioner, Respondent Nos.7, 3, 4 and 8 retired from the Partnership Firm and Respondent Nos.2, 5 and 6 remained as continuing partners. On the same day, i.e., 16/10/2017, Deed of Cancellation of Admission and Partnership Deed was executed for retiring the Petitioner from the Firm. On 16/10/2017, MOU was executed under which the continuing partners agreed for payment of 17,60,00,000/- to the outgoing partners for their retirement. According to the Petitioner, all the three documents were executed simultaneously on 16/10/2017. Additionally, Allotment Letter dtd. 16/10/2017 was issued by the continuing partners in respect of area of 5000 sq.ft. in the project as agreed under the MOU. The continuing partners also issued cheques in the name of the Petitioner as agreed in the MOU. According to the Petitioner, the three agreements, allotment letters and the cheques were kept in Escrow Account with the Advocate as agreed in clause 8(e) of the MOU. Petitioner kept on demanding for payment of amount agreed under the MOU and the Respondent and continuing partners started giving flimsy excuses and delayed payment due to him. Another Memorandum of Understanding was executed in November 2019 (MoU- 2), under which Rajendrakumar Hastimal Singhvi released all his right, title and interest under the three documents in favour of the Petitioner. Petitioner claims to have obtained rights of Rajendrakumar Singhvi under the three Agreements in pursuance of MoU-2 executed in November 2019. Another Memorandum of Understanding dtd. 20/2/2020 (MoU-3) was executed under which Rajendrakumar Singhvi once again released his right, title and interest in the three documents in favour of the Petitioner. He also executed declaration- cum-indemnity on 20/2/2020 confirming that the Petitioner is entitled to recover amount of Rs.17,60,00,000.00 from the continuing partners.