Hari Sharma & Ors. vs State of Jharkhand & Ors.

This appeal is Admitted.

Learned counsel for the respondent waives notices of admission.

This arbitration appeal has been preferred under Section 37 of the Arbitration and Conciliation Act, 1996 against the order passed by the learned trial Court i.e. Civil Judge, (Senior DivisionI), Ranchi dated 27th January, 2016 in Miscellaneous Case No. 12 of 2015.

Having heard learned counsel for both sides and looking to the agreement between the parties to this appeal which is at Annexure1, it appears that this appellant is an owner of the property in question. Owner''s allocation has been mentioned in ArticleVII especially Clause 7.1 onwards. The relevant Clauses are as under : "ARTICLEVII OWNER''S ALLOCATION

7.1 The Owner''s allocation in the building shall be as defined in clause 1.11 here in above.

7.2 Save and except as provided in this agreement the Owners shall not claim any right over the builder''s prescribed limit of 60% of allocation.

7.3 It has been agreed by and between the parties that all shopping complex on the ground floor and all Office complex and flats on first and second floors respectively besides 40% of the for Car Parking Space in Basement for residential parking as per the specifications attached will be retained by the Owners against his allocation as shown in the red wash of map attached to this agreement, which will form the part of this agreement and builder will have no right title or claim for the same.

7.4 Remaining allocation of the owner if any shall be adjusted in the third floor.

7.5. Shopping series in the basement area shall be allocated to Builder''s Share."

It appears that the respondent is a developer of the property, who is popularly known as builder.

The builders are always greedy about more construction. Adjacent plot is also taken over by the respondent so as to get more Floor Area Ratio. Consequently, more construction is permissible.

So far as more construction is concerned, this appellant has no objection, at all. Nonetheless, the aforesaid allocation as stated in Clauses 7.1, 7.2, 7.3, 7.4 and 7.5 has to be maintained by the respondentdeveloper (builder).

What is happened in this case is that for shopping complex on a ground floor, for office complex and for flats on first floor and second floor, similar type of agreement has been entered into with the adjacent landlord. The bottleneck starts from this. As stated hereinabove, the greedy builders are always in need of more construction.

It further appears that the respondent has entered into MOU with the adjacent landlord for the very same property which is to be given to this appellant under an agreement which is at Annexure1, after development of the property. This is not permissible. The MOU entered into between the respondent and the adjacent landlord is part of Annexure8 (page117 onwards). Moreover, it is alleged by this appellant that one flat has already been sold away by the respondent which is a property of this appellant as per Clauses 7.1 to 7.5, as stated hereinabove.

Looking to the agreement between the parties to this appeal and looking to Annexure8, there is a prima facie case in favour of this appellant and the respondent cannot sell the property without prior permission of this Court during the pendency and final hearing of this arbitration appeal. Balance of convenience is also in favour of this appellant and irreparable loss will be caused to this appellant if the stay, as prayed for, is not granted. Otherwise, if 3the properties are sold away by the respondent which are to be given to this appellant after development of the property then there will be interest of several purchasers and further complex situation will arise.

I, therefore, restrain the respondent, his agents and servants from transferring any of the properties which is under construction or which is already constructed on Municipal Holding No. 2229A of Ward No. VII C of Ranchi Municipal Corporation (formerly Holding No. 1545 of Ward No. VII C) being part of RS Plot No. 716 Khata No. 160 Hakiyat Chhappar Bandi in Village Gari, Thana No. 194, P.S. Sadar, DistrictRanchi, which is also known as Heritage Swaranrekha, situated at RanchiHazaribagh Road and more particularly it is described in ScheduleA of the agreement dated 3rd March, 2005 which is at Annexure1 to the memo of this arbitration appeal, during the pendency and final hearing of this arbitration appeal nor the respondent shall sell, mortgage, lease, sublease, assign or create any charge upon the aforesaid property nor any MOU will be entered into without prior permission of this Court for the aforesaid property, during the pendency and final hearing of this arbitration appeal nor any effect be given to any MOU which is entered into by this respondent with a third party, during the pendency and final hearing of this arbitration appeal.

This arbitration appeal will be listed under the heading for "Hearing" in the month of December, 2017. If the matter is settled earlier between the parties, they are at liberty to mention this case before this Court.