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Bombay High Court
Atul Projects India Private Limited vs Nima Developers Private Limited on 23 July, 2025
2025:BHC-OS:11633
CARBP-35274-2024=IA=F.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION (L) NO. 35274 OF 2024
Digitally
signed by
SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR
Atul Projects India Pvt. Ltd. ...Petitioner
TALEKAR Date:
2025.07.23 Versus
15:52:20
+0530
1. Nima Developers Private Limited
2. India Farmers Private Limited ... Respondents
WITH
INTERIM APPLICATION (L) NO. 1461 OF 2025
[FOR INTERVENTION]
IN
COMMERCIAL ARBITRATION PETITION (L) NO. 35274 OF 2024
Oberoi Realty Limited ... Applicant / Intervenor
In the matter between :
Atul Projects India Private Limited ... Petitioner
Versus
Nima Developers Private Limited & Anr. ... Respondents
Mr. P. Chidambaram, Senior Advocate a/w Dinyar Madon, Senior
Advocate, Cyrus Ardeshir, Senior Advocate, Kausar Banatwala, Ziyad
Madon, Manini Roy, Neuty N. Thakkar, Vaishali Dedhia, Nisha
Waghmare, Dipsy Sequiera, i/b Tushar Goradia, for Petitioner.
Mr. Aspi Chinoy, Senior Advocate a/w, Mr. Rohaan Cama a/w Pheroze
Mehta, Krishna Balaji Moorthy, Bhakti Mehta, Letishiya Chaturvedi, i/b
Wadia Gandhi & Co., for Applicant.
Mr. Darius Khambata, Senior Advocate, a/w Karl Tamboly, Karan
Rukhana, Deeksha Jani, Niket Jani, i/b Jani & Parikh, for Respondents.
CORAM : SOMASEKHAR SUNDARESAN, J.
Reserved on : March 17, 2025
Pronounced on : July 23, 2025
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JUDGEMENT :
Context and Factual Background:
1. This Petition is an appeal filed under Section 37 of the Arbitration and
Conciliation Act, 1996 (“the Act”) impugning an Order dated October 24,
2024 (“Impugned Order”) passed by the Learned Arbitral Tribunal refusing
to grant interlocutory relief to the Petitioner.
2. The Petitioner, Atul Projects India Pvt. Ltd. (” Atul”) entered into a
Memorandum of Understanding dated November 29, 2014 (” Atul MoU”)
with Respondent No. 1, Nima Developers Pvt. Ltd. (” Nima”) to develop
5,00,000 square feet of residential area on 12.5 acres of land that Nima was
entitled to in Village Marve, Malvani and Aksa (” Subject Land”). The Subject
Land forms part of a larger tract of 100 acres of land (” Larger Land”), which
had been leased to Nima by Respondent No. 2, India Farmers Pvt. Ltd.
(“India Farmers”) by a sub-lease dated one day before the date of MoU i.e. on
November 28, 2014 (“Sub-Lease Deed”).
3. India Farmers, in turn, had been a lessee of ~114 acres of marshy land
for 999 years demised to it by the Governor of Bombay Presidency
(predecessor to the State of Maharashtra), pursuant to a reclamation lease
deed dated July 7, 1956 (“Lease Deed”). The Lease Deed had stipulated
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targets for reclamation of marshy land, with stipulated deadlines, for
cultivation of agriculture.
4. The history of events in between the Lease Deed and the Atul MoU
would matter for appreciation of the core controversy between the parties in
these proceedings. This is outlined below:-
A) The Collector, Mumbai Suburban District sought to
terminate the Lease Deed on April 26, 1993;
B) The Additional Commissioner, Konkan Division set aside
the termination by the Collector by an Order dated March
30, 1994;
C) The Revenue Minister, State of Maharashtra set aside the
Additional Commissioner’s revocation of the termination by
an Order dated May 18, 1998 (“Revenue Minister Order”),
thereby confirming the termination effected by the Collector
on April 26, 1993;
D) India Farmers filed Writ Petition No. 1029 of 1998 (” WP
1029″) challenging the Revenue Minister Order;
E) A Show Cause Notice dated March 19, 2002 (“2002 SCN”)
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1029 and that too was challenged by amending WP 1029;
F) WP 1029 was allowed by a Learned Single Judge of this
Court by an Order dated March 23, 2004 (“SB Judgement”),
setting aside the Revenue Minister Order and the 2002
SCN;
G) The SB Judgement was appealed by the Government of
Maharashtra in Appeal No. 766 of 2004 (“Appeal 766”);
H) The Atul MoU was executed on November 29, 2014 during
the pendency of Appeal 766. The Atul MoU explicitly
records that Atul has been shown all the litigation over the
Larger Land and that Nima has title to such land. However,
Clause 3 explicitly provided that the parties would convince
the Government of Maharashtra to withdraw Appeal 766.
On the withdrawal or disposal of Appeal 766, the Atul MoU
would become binding. If Appeal 766 were to not get
disposed in six months, Atul would be entitled to a refund of
the amounts spent or, at its option, continue with the
arrangement set out in the Atul MoU until such time as it
deems fit. Once India Farmers and Nima received a clear
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title with a favourable Order, the Atul MoU would be
incapable of termination unless any default in obligation is
committed;
I) Under Clause 4 of the Atul MoU, the parties agreed that
Atul would have a right to develop 5,00,000 square feet of
residential area on 12.5 acres of land. On the remaining
part of the Larger Land, Atul would have a right of first
refusal (“ROFR”) in relation to any development, such
ROFR being exercisable within one month of the offer for
development being made by Nima;
J) Various milestones were agreed under Clause 6 of the Atul
MoU. In the first stage, the parties were to first take efforts
to get the Government of Maharashtra to withdraw Appeal
766 and get clear and marketable title to the land. The
parties also agreed to fence the property and register the
Sub-Lease Deed and the Development Agreement. The
layout of 100 acres was to be prepared. In the next stage,
the parties were to work on obtaining permits for
development of residential property with the applicable
approvals being obtained. It is in the final stage that the
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parties would make a layout of the land and demarcate
portions of land for specific purposes;
K) Under Clause 7 of the Atul MoU, Atul was to pay Rs. 43
crores to Nima in three stages – the first payment of Rs. 3
crores on signing of the Atul MoU; the next Rs. 12 crores on
the withdrawal of Appeal 766 or a favourable decision in the
matter i.e. “on obtaining absolute clear title”. Other
milestones were agreed, both for payment and for taking
actions – effectively, the execution of a Development
Agreement was envisaged at a later stage;
L) On December 1, 2014, the parties agreed to a higher
payment at specific stages supplementing the Atul MoU;
M) On November 2, 2015 (a year after the Atul MoU), Atul,
Nima and India Farmers executed a Deed of Confirmation,
a tripartite document (“Confirmation Deed”) binding all
three parties. Mr. Manish Majithia, director of both Nima
and India Farmers, duly authorised to bind both the
Respondents, appears to have represented that within six
months, there would be clear title to the Larger Land and
Atul would be put in joint possession of 12.5 acres;
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N) In Clause 6, the Confirmation Deed makes an explicit
reference to a plan for joint development. Should the area
shown in the plan fall under any reservation, any residential
zone equivalent to the same area reserved would be
provided by the Respondents to Atul touching the proposed
road out of the 114-acre plot;
O) Clause 9 of the Confirmation Deed provides that if after the
payment of Rs. 5 crores by Atul, there is no significant
progress, Atul has the option of withdrawing from the
project with refund along with interest at 18% after the first
month, and a bungalow worth Rs. 15 crores would be
mortgaged to Atul and interest at the rate of 18% would kick
in from the expiry of six months until clear title is obtained;
P) Finally, in Clause 11 of the Confirmation Deed, it is made
clear that India Farmers and Nima cannot terminate any of
the documents or terms unless there is a payment default
on Atul’s part;
Q) At Exhibit J to the Petition, a map indicating the layout of
the Subject Land is enclosed – this would come in for some
controversy as would be seen later;
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R) It is apparent from the record that Appeal 766 was first
allowed and the SB Judgement was set aside by a Learned
Division Bench of this Court. That was carried by Nima in
Civil Appeal 5947 of 2007 to the Supreme Court, which
remanded the case back to this High Court by an Order
dated February 24, 2011. That eventually came to be dealt
with by a judgement dated October 1, 2019 (“DB
Judgement”), in which a Learned Division Bench of this
Court took note of the Government of Maharashtra’s efforts
to monitor reclamation work through the decades and its
allegations of breach of the lease conditions by allegedly not
adhering to the end-use of the lease, and upheld the SB
Judgement to the extent of finding that the Revenue
Minister Order ought to be set aside;
S) However, the DB Judgement found that 2002 SCN ought
not to have been quashed since it raised an independent
issue of mortgaging government land to banks to raise
finances. Instead, the DB Judgement held, the Respondents
ought to have been asked to respond to the 2002 SCN.
Therefore, effectively the DB Judgement confirmed the
quashing of the adverse findings starting with the
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Collector’s adverse Order dated April 26, 1993 culminating
in the Revenue Minister Order, but revived the 2002 SCN
that had been quashed in the SB Judgement. The 2002
SCN also had a direction not to create any interest in the
land without the prior permission of the Government of
Maharashtra – these are the proceedings that were revived
by the DB Judgement;
T) On July 28, 2020 (nearly ten months later), Nima would
write to Atul stating that the DB Judgement had confirmed
that the proceedings based on allegations of violation of the
lease deed stood quashed and that Nima’s title was now
clear. The DB Judgement had not been challenged in the
Supreme Court by the Government of Maharashtra.
Therefore, the letter asserted that Indian Farmer’s rights to
the land stood firmly established, and called on Atul to pay
the Rs. 12 crore payable as a non-refundable security
deposit under the Atul MoU within 14 days, failing which it
would be presumed that Atul was not interested in pursuing
the Atul MoU, which would stand terminated;
U) On August 24, 2020, Atul replied to Nima asserting that
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merely because the Government of Maharashtra did not file
a special leave petition in the Supreme Court it could not be
said that Indian Farmer’s title is clear;
V) Neither of the aforesaid two letters made a reference to the
2002 SCN having been revived or its status. On September
7, 2020, Nima replied to Atul calling upon Atul to perform
the Atul MoU and ended by hoping that wiser counsel
would prevail and Atul would comply with the Atul MoU (in
paragraphs 6 and 9);A little before this exchange of
correspondence between July 2020 and September 2020,
proceedings under the 2002 SCN had been underway. On
November 27, 2019, written submissions of India Farmers
had been filed before the Collector, Mumbai Suburban
District and a personal hearing had been conducted on
December 16, 2019. It appears that on September 18, 2020,
less than ten days after Nima had called on Atul to perform
the Atul MoU, the Collector, Mumbai Suburban District
passed an Order dealing with the 2002 SCN and holding
India Farmers guilty of violating the lease conditions by
mortgaging the property in favour of Indian Bank, which
had led to recovery proceedings – contrary to India
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Farmers’ assertion that the loan had been repaid. The
Collector held that the land had been given for reclamation
with the sole objective of making it cultivable. That not
having been done and the land having been mortgaged
without the consent of the Government, the lease was
forfeited and re-possession was directed;
W) On September 23, 2020, it is apparent that re-possession
was attempted. This led to Writ Petition (L) No. 3607 of
2020 (“WP 3607”) being filed by India Farmers. As it now
transpires, on September 23, 2020, the property cards were
mutated to record the name of Government of Maharashtra
as the owner of the Larger Land;
X) On September 24, 2020, noting that legal possession was
with the Government of Maharashtra while physical
possession was still with India Farmers, this Court directed
that status quo be maintained until the next date;
Y) In these proceedings, Atul would claim that these
developments were entirely behind its back and the
Respondents had not extended the courtesy of intimating
Atul. On the contrary, the Respondents had been asserting
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that the title was completely in the clear and called upon
Atul to pay another Rs. 12 crores;
Z) On October 16, 2023, India Farmers took two simultaneous
actions. It executed a Memorandum of Understanding with
Oberoi Realty Ltd. (“Oberoi MoU”) for development of the
Subject Land under Regulation 33(8) of the Development
Control Promotion Regulation, 2034 (” DCPR 2034″) made
under the Maharashtra Regional and Town Planning Act,
1956 by the Municipal Corporation of Greater Mumbai
(“MCGM”) or under the Information Technology (“IT”)
policy entailing development for IT and IT-enabled service
(“ITES”) units as well as for non-IT and non-ITES units;
AA) On the same date i.e. on October 16, 2023, a three-way
instrument was executed internally among India Farmers,
Nima and Mr. Manish Majithia, purporting to terminate the
Sub-Lease Deed (“Sub-Lease Termination Deed”) – Mr.
Majithia himself purporting to sign on behalf of each of the
three parties. The upshot of this action is that Nima’s
entitlement to the Larger Land was meant to be cut out of
the linkage to India Farmers’, thereby leaving Atul with no
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basis to claim performance from Nima. It is seen from the
record that it was on April 9, 2024, that the fact of this
purported cancellation was intimated to Atul by advocates
of Nima in the course of trading notices to each other;
BB) On December 18, 2023, Nima wrote to Atul purporting to
terminate the Atul MoU on account of non-payment of the
sum of Rs. 12 crores by Atul pursuant to the demand made
on July 28, 2020 and September 7, 2020. This letter made
no mention of Nima no longer having a sub-lease in its
name and that the Atul Transaction Documents had been
frustrated. By this letter, Nima stated that the Atul MoU had
been terminated on July 28, 2020 and it was ” once again”
being terminated “with immediate effect”. The amount of
Rs. 5.51 crores paid until then by Atul to Nima was refunded
by a cheque enclosed with the letter;
CC) On December 28, 2023, the Government of Maharashtra
issued a notification changing the status of the land to a No-
Development Zone (“NDZ Land”);
DD) Atul invoked arbitration under Clause 19 of the Atul MoU
on February 21, 2024, and filed a Section 9 Petition on May
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29, 2024, which was converted into an Application under
Section 17 by an Order of a Learned Single Judge dated July
24, 2024. It is in disposal of the Section 17 Application that
the Impugned Order was passed on October 24,
2024;Meanwhile, by an Order dated September 19, 2024
(“New Revenue Minister Order”), it is stated the then
incumbent Revenue Minister, Government of Maharashtra
passed an Order leading to a closure of the 2002 SCN and
the consequent proceedings to take possession of the Larger
Land in favour of India Farmers;
EE) The Impugned Order was challenged by way of this Petition.
A Learned Single Judge (R.I. Chagla J.) took note of the
Respondents’ submissions that contentions raised in this
Petition by Atul had not been raised before the Learned
Arbitral Tribunal. The matter was stood over to December
4, 2024 for consideration of ad interim relief, permitting an
Affidavit from the Respondents. On December 3, 2024 (the
eve of the next hearing date) the Respondents served the
Revenue Minister’s Order dated September 19, 2024 on
Atul;
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FF) On December 4, 2024, the matter was stood over to
December 11, 2024. On that date, the Learned Single Judge
arrived at a prima facie view that the Oberoi MoU had been
executed before the Atul MoU had been terminated. Taking
note of the submission that the Oberoi MoU that had been
tendered during the Section 17 proceedings before the
Learned Arbitral Tribunal had been substantially redacted
(portions not intended to be read being masked), Atul had
been unable to assail the Oberoi MoU in that forum, the
Learned Single Judge was pleased to direct that the Oberoi
MoU be tendered in this Court in a sealed cover, and that
until the Petition was disposed of, the Oberoi MoU shall not
be acted upon;
GG) On January 17, 2025, the Petition came up before me.
Oberoi Realty Ltd. (“Oberoi”) moved Interim Application
(L) No. 1461 of 2025 (“Intervention Application”) seeking to
be impleaded in the Petition. Essentially, Oberoi’s
contention was that its interests were hampered by the
Learned Single Judge’s restraint on the Oberoi MoU being
acted upon. Oberoi was desirous of filing a Reply to the
Petition. I passed an Order stating that the non-redacted
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Oberoi MoU that was in a sealed envelope would be
examined by me in Chambers, after which a view would be
taken on whether to issue notice on the Interim Application;
HH) On February 10, 2025, I passed an Order inter alia stating
the following:
Having considered the MoU, prima facie, in the interest of
transparency and access of all parties to all the material on record, I
am inclined to:-
(a) issue notice to the Petitioner on the Intervention Application;
and
(b) issue notice to the Respondents in the Section 37 Appeal to let
the Petitioner have access to the MoU so that the Section 37 Appeal
can be considered with full transparency and access to all relevant
material by all parties.
[Emphasis Supplied]
II) Atul filed an Affidavit in Reply to the Intervention
Application taking the stance that Oberoi was not related to
Nima and India Farmers and that applying the principles
laid down in Cox and Kings1, it was not necessary to make
1
Cox and Kings v. SAP India Pvt. Ltd. & Anr. – 2023 INSC 1059
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Oberoi a party. It was contended by Atul that it was not
necessary to implead Oberoi and that Oberoi was not a
party to the arbitration proceedings;
JJ) Thereafter, when the proceedings were taken up, consensus
appeared to have evolved among the Learned Senior
Counsel for the parties to address the Court on the main
Section 37 Petition. The matter was then heard on multiple
dates with all parties, including Oberoi being present on all
dates;
Section 17 Application – Reliefs Sought:
5. At the threshold, it would be instructive to notice the reliefs sought by
Atul in the Section 17 Application. Atul desired a direction to Nima, India
Farmers and Mr. Manish Majithia, to deposit a sum of Rs. 10 crores; and to
stay the effect and operation of the purported termination of the Atul MoU,
the letter dated December 1, 2014 and the Confirmation Deed (collectively,
“Atul Transaction Documents”), by way of the letters dated July 28, 2020 and
December 18, 2023 and to injunct the Respondents from communicating the
purported termination to third parties. Atul also sought a full disclosure of
the nature of the third party rights purported to have already been created (as
communicated by Advocates of Nima by letter dated April 9, 2024). Atul also
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was for disclosure of every document and deed executed in respect of the land
since April 1, 2020. Finally, it was prayed that the Respondents be injuncted
from presenting any proposal for development of the land.
Impugned Order:
6. The Learned Arbitral Tribunal was satisfied on a number of counts for
refusing relief in the Section 17 Application. They may be summarized thus:-
A) The Learned Arbitral Tribunal was satisfied that the Larger
Land came to be classified as a No Development Zone (” NDZ”).
The Learned Arbitral Tribunal ruled that since no residential
development could at all take place on the Larger Land, there is no
scope for specific performance. The Learned Arbitral Tribunal also
ruled that it would not be possible to direct Nima and India
Farmers to effect development for IT and ITES purposes on the
Larger Land to suit the requirements of Atul. It was held that no
interim relief could be granted since no such final relief was
possible, since the designated user of the land had totally changed;
B) The second view of the Learned Arbitral Tribunal was that
prima facie, Atul was not ready and willing to perform on the Atul
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MoU. Atul was to make a non-refundable deposit of Rs. 43 crores
in stages – the first payment of Rs. 3 crores was made and Rs. 12
crore was payable when the revenue matter was resolved in Court.
The letter dated December 1, 2014 entailed a further sum of Rs. 18
crores. The Confirmation Deed entailed payment of Rs. 2 crores on
its execution and another Rs. 3 crores against ” almost work of title
by Revenue Department and / or by Court is clear [sic]”. The
Learned Arbitral Tribunal held that both these were to be done
within six months. However, the Learned Arbitral Tribunal found
that Atul had only paid a total of Rs. 5.51 crores and defaulted on
paying the further amounts when due. Considering the transcript
of an exchange that took place on October 17, 2019 on WhatsApp,
the Learned Arbitral Tribunal found that Atul had indicated the
need to reduce the area, and the Respondents had even proposed
to go with the reduction, but Atul did not react further. The upshot
of this analysis is that Atul’s conduct was not equitable by not
taking any action for long and allowing another to deal with the
property, disentitling relief at this stage on equity grounds under
Section 17 of the Act;
C) The Learned Arbitral Tribunal also found that the precise
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area of 12.5 acres on the Larger Land had not been identified and
marked by the parties. Citing a few judgements, the Learned
Arbitral Tribunal held that where the exact area is not identified
and the boundaries were unclear, no decree could lie. The upshot
appears to be that no relief would be forthcoming under the Atul
Transaction Documents, which are lacking a crystallised bargain in
material particular, since the area of 12.5 acres has not been
specifically marked on the 100 acres of the Larger Land. The
Learned Arbitral Tribunal has specifically held that Atul had no
rights over the Larger Land and therefore it could not have been
given land for residential use. Effectively, the view appears to be
that the Atul Transaction Documents do not lend themselves to
specific performance and therefore the Section 17 Application
would not get any traction;
D) The Learned Arbitral Tribunal has also ruled that the letter
of July 28, 2020 is a termination letter rather than a notice to
terminate, and to consider whether it was waived by issuance of the
letter dated September 7, 2020 (which called for performance),
there ought to have been a pleading claiming waiver. The Learned
Arbitral Tribunal held that the Atul MoU had been terminated on
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July 28, 2020 and Atul did not react until it invoked arbitration on
February 21, 2024;
E) The Learned Arbitral Tribunal accepted the statement
made by Counsel for the Respondents that third party rights had
already been created. The Learned Arbitral Tribunal held that
third parties who are not party to the arbitration agreement could
not be added in the arbitration proceedings. The Learned Arbitral
Tribunal held that it could not pronounce upon the validity of the
Oberoi MoU since Oberoi was not a party;
F) The Learned Arbitral Tribunal held that the restoration of
the 2002 SCN and the direction contained therein, not to deal with
the Larger Land without the prior consent of the Government of
Maharashtra, cannot be regarded as a stay on creation of third
party rights by a court of law. The mere issuance of a Show Cause
Notice is not a fetter, and it is only when there is an outcome in the
proceedings pursuant to the Show Cause Notice that there could be
a fetter. However, if Atul was of the view that the 2002 SCN was a
fetter on title, that alone would be ground for not being able to
enforce the Atul Transaction Documents since there would be a
fetter on implementing them;
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G) In view of such findings, the Section 17 Application was
comprehensively and completely dismissed without any relief.
Analysis and Findings:
7. Mr. P. Chidambaram, Learned Senior Counsel made submissions on
behalf of Atul; Mr. Darius Khambata, Learned Senior Counsel on behalf of
the Respondents and Mr. Aspi Chinoy, Learned Senior Counsel represented
Oberoi. Each of Mr. Chidambaram and Mr. Khambata has presented written
notes in aid of their submissions – and the exchange went on up to the stage
of a written response even to the written submissions in sur-rejoinder.
8. These proceedings have been very intensely contested with
submissions by Learned Senior Counsel for both sides over multiple rounds,
each seeking to raise a plethora of nuanced points, with accommodation of
time being sought by each side after each round of submissions by the other.
Submissions were made on four different dates of hearing, lasting between
February 26, 2025 and March 17, 2025. To be fair, the issues raised by them
involve consideration of a long and complicated history of factual
developments, and indeed nuanced consideration of inter-related facets of
the matter that were pleaded or argued by each side at different stages of this
litigation.
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9. I have had the benefit of their well-referenced written notes on
arguments to navigate the voluminous record generated by the parties in the
proceedings before the Learned Arbitral Tribunal. I find that apart from the
issues presented to the Learned Arbitral Tribunal and the manner of decision
on them, the parties have also serious disputes over whether Atul has
presented moving targets for the Respondents to meet in the manner in
which contentions were presented to the Learned Arbitral Tribunal and to
this Court.
10. For ease of structure to my opinion, I have dealt with the issues in the
same sequence as has been dealt with by the Learned Arbitral Tribunal, as
summarized above. Multiple strands of contentions have been presented and
the response to each need not necessarily have a direct and independent
bearing on the final outcome. I would therefore deal with the implications of
the findings on these strands in a cumulative and holistic analysis at the end
of the judgement.
11. At the threshold, it must be stated that Section 17 of the Act enables
protection and preservation of the subject matter of the arbitration. The Atul
Transaction Documents reduced to writing the terms on which the parties
would pursue development of residential units on the Subject Land. For
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purposes of the jurisdiction under Section 37 of the Act, which is a statutory
appeal over decisions taken under Section 17 of the Act, the core question to
ask is whether any of the material findings in the Impugned Order are
summary in nature and defiant of reason, as discernible from the record.
Whether the view of the Learned Arbitral Tribunal is a reasonable and
plausible view or whether it is implausible or perverse on any facet would
need to be seen.
12. In the peculiar facts of this case, such consideration would also extend
to whether the Learned Arbitral Tribunal was presented with all that had to
be considered in order to return reasonable findings, or whether the
Impugned Order is not a duly informed decision in view the Learned Arbitral
Tribunal not having had access to the necessary material. This facet would
gain significance, particularly in the context of the Oberoi MoU. A connected
issue would be whether the Learned Arbitral Tribunal ought to have asked for
a greater disclosure of the Oberoi MoU before arriving at the decision that it
was not relevant.
No Development Zone and its implications:
13. At the threshold, the Learned Arbitral Tribunal was pleased to return a
finding that the designation of the Larger Land as NDZ undermined
everything that the Atul Transaction Documents stood for. The change of
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status of the Larger Land as a NDZ with effect from December 28, 2023
would, at first blush appear to undermine the Atul Transaction Documents,
which was essentially meant for carrying out redevelopment for residential
purposes.
14. However, it is indeed clear from the material on record that the NDZ
status does not mean the end of road for residential development of any
nature whatsoever. Rule 8.1.3 of DCPR 2034 indeed provides for
development of IT and ITES units to be developed on NDZ land. The
Impugned Order records that the Learned Counsel for Atul failed to show any
provision of law that would enable residential development in NDZ land. This
perhaps led to the Learned Arbitral Tribunal not having assistance on the
nuance in this regard, but what is clear is that development of an IT park in
NDZ also entails “allied services” and “support services”, which include the
need for those working in the IT park to have access to residential
accommodation and to allied commercial establishments.
15. This facet of the matter has not been noticed or rather can be said to
have escaped attention in the analysis contained in the Impugned Order.
Therefore, in my opinion, it cannot be ruled out that the Atul Transaction
Documents being a commercially-agreed transaction to develop residential
accommodation could have potentially been accommodated and reconciled
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with the NDZ classification. Suffice it to say, the NDZ classification by itself
would not be the end of the for the Atul Transaction Documents. Therefore,
this element of the analysis can be said to be inaccurate.
16. Notably, the Oberoi MoU would itself deal with this very facet of the
policy going by its description of the transaction. However, the Oberoi MoU
was, for all practical purposes, not shared with the Learned Arbitral Tribunal.
The manner of redacting of the Oberoi MoU is dealt with subsequently in this
judgement. Suffice it to say, had the Oberoi MoU been available to the
Learned Arbitral Tribunal, I have no doubt in my mind that the Learned
Arbitral Tribunal would not have returned the findings that it did on the NDZ
issue or at least in the manner that it has done.
Was Atul Ready and Willing to Perform?
17. Whether Atul was truly ready and willing to perform the Atul
Transaction Documents is a key element in resolving the issues raised in
these proceedings. Atul’s key contention is that the obligation to pay Rs. 12
crores did not arise at all until there was clear and marketable title to the
Subject Land, which could have only been achieved if there was a resolution
of Appeal 766 in favour of India Farmers and Nima, or if they managed to
convince the Government of Maharashtra to change its stance and
perspective on the merits of pursuing those proceedings. Having examined
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the record, the key driver for the Learned Arbitral Tribunal to take a view on
whether there is a failure on Atul’s part to demonstrate readiness and
willingness to complete the Atul Transaction Documents is the reliance
placed on a transcript of WhatsApp messages exchanged between Mr. Atul
Patel and Mr. Manish Majithia on October 17, 2019. The Learned Arbitral
Tribunal has examined the transcript produced in the proceedings (Page 502)
to arrive at a view that Atul was not really ready and willing to perform the
Atul Transaction Documents and had sought accommodation on its terms in
view of the financial and market conditions prevalent in October 2019 after
the DB Judgement came about.
18. Atul would contend that the WhatsApp transcript would only show
negotiations and discussions and unless a firm position came about, the
terms of the Atul Transaction Documents would have continued. The
Respondents would contend that the issue at hand was not whether the Atul
Transaction Documents were amended but whether Atul was ready and
willing to perform the Atul Transaction Documents in the terms contracted.
19. Mr. Chidambaram would brand the WhatsApp chat transcript as
“gibberish” that is unworthy of consideration as evidence, bearing in mind
that at the stage of Section 17 proceedings, the Learned Arbitral Tribunal
ought to have only examined how to preserve the subject matter of
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arbitration rather than render firm findings on whether a party is ready and
willing to perform. Mr. Khambata would contend that the WhatsApp
conversation speaks to Atul’s own desire to renegotiate the transaction and
the difficulties he was then facing in the market, which would then point to
the Learned Arbitral Tribunal’s view on the absence of readiness and
willingness on Atul’s part to perform the contract was a reasonable and
plausible view.
20. The transcript is evidently colloquial, with a strong vernacular
rendition of the English language, but that is an element that afflicts even the
Confirmation Deed (recall the reference to ” almost work of title being clear”.
This Court cannot undermine the ability of the Learned Arbitral Tribunal to
exercise its discretion in discerning a prima facie position on whether Atul
was ready and willing to perform the Atul Transaction Documents in the very
same terms as contracted. Whether the Atul Transaction Documents was
amended is not the point in issue – whether it was Atul’s desire to have the
Atul Transaction Documents modified to enable him to still get some part of
the bargain, is a question that the Learned Arbitral Tribunal is entitled to
consider. However, what needs to be considered is whether the stage at
which the WhatsApp conversation was had, was a stage when Atul was
obliged to make payments on the premise that the title was absolutely clear.
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21. While the WhatsApp transcript alone may not have a definitive bearing
to render all other areas of consideration irrelevant, but discounting for the
colloquial usage of English, it would be totally open to the Learned Arbitral
Tribunal to draw a reasonable inference on the readiness and willingness to
perform. The transcript would indicate, a prima facie position (a firm final
conclusion can be drawn in arbitration proceedings eventually) that Mr. Patel
was open to scaling down the area of development to reduce the financial
burden at that time, which Mr. Majithia too was willing to consider. The
WhatsApp transcript also shows that the parties had disagreement even on
that very day about whether Nima and India Farmers could be said to have
clean title. Atul presented a dual proposition – if the title were not clear, then
nothing would be payable, and if title were clear, then the ” problem is market
& payment”. He would say “if due & not payable then will agree to reduce my
area….but can’t commit nowadays”. To my mind, going by the style of
conversation, the words “not payable” indicates that if Atul is unable to pay,
he would agree to reduce his area, but it was difficult to commit. However, he
did reject the proposition that the milestones for him to pay, had been
reached.
22. In my opinion, no fault can be found with the Learned Arbitral
Tribunal in interpreting this conversation on WhatsApp, which is in fact in
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writing. When dealing with the conduct of commercial parties, one must
have regard to reading the language deployed by men of commerce in a
manner that they would have meant. It would not be appropriate to bring to
bear standards of legally-drafted correspondence when interpreting what is a
ready indicator of the state of mind of the person authoring such a message.
In my opinion, no fault can be found with the Learned Arbitral Tribunal’s
reliance on the WhatsApp message or in its interpretation of the same. This
element would go into the mix of what is to be considered in the course of an
appropriate decision under Section 17 of the Act. The readiness and
willingness to perform has indeed been shown as eroded, in about a fortnight
after the DB Judgement. Whether the DB Judgement actually firmly and
clearly lifted the cloud on title is a separate issue and that is dealt with
separately.
Was Precision of Subject Matter Absent?
23. One of the key findings of the Learned Arbitral Tribunal is that the
instruments constituting the Atul Transaction Documents are agreements to
agree and not a firm and crystallised agreement. Towards this end, one key
area of controversy is whether the 12.5 acres of land on which residential
development was to take place in terms of the Atul Transaction Documents
had been identified and marked on a layout for the parties to know what
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precisely was the area on which they would effect residential development.
Towards this end, the parties have had bitter disputes about the existence of a
layout plan. Atul would contend that the layout was well known to the parties
and had been identified. The contention is that Atul’s advocates
inadvertently did not append it to the Section 17 Application (the Section 9
Petition originally filed) but were willing to tender it in the arbitration
proceedings but the Learned Arbitral Tribunal simply refused to let them
tender it.
24. In my opinion, the material on record would not lend itself to a
sweeping conclusion that there was nothing earmarked in the instruments
constituting the Atul Transaction Documents. Clause 6 of the Confirmation
Deed records that the plot area of 50,500 square metres “as shown in plan” is
for joint development. Should any portion of it fall in a reservation when
town planning takes place, the Respondents would provide any residential
zone area of the same size touching the proposed road. A plain reading of
Clause 6 of the Confirmation Deed would indicate that there was a plan and
that did indicate the area.
25. That apart, the role of an architect, one Mr. Ashwin Zhaveri and M/s
H.M. Zaveri & Sons is writ large on the Confirmation Deed. It appears
unlikely that a commercial party would agree to part with serious money for a
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residential development without so much as a plan to indicate the layout of
the Larger Land and which part of the Larger Land would comprise the
Subject Land, and where to locate the residential development. The value of
development, particularly for residential units could vary widely when one is
considering the sizeable value of monies contracted to be parted with
between the parties.
26. Whether there was an identified plan and earmarked land would
certainly present a question of fact, and to my mind it cannot be summarily
concluded that the Atul MoU or the Confirmation Deed was simply without
any idea whatsoever of where the 12.5 acres of land would lie on the Larger
Land. Evidence would need to be led – perhaps of Mr. Zaveri too and not just
the contesting parties. Whether the plan sought to be exhibited by Atul is the
plan that was referred to in Clause 6 of the Confirmation Deed would have
been a matter of evidence. Answering that would call for a more detailed
probe at the stage of the final hearing. Pending that, what interim
arrangements are needed ought to have been considered. Therefore, to my
mind, the Atul Transaction Documents cannot be entirely wished away as
being so inchoate and vague that it would not lend itself to enforcement and
execution, even if such a statement were to be made purely as a prima facie
finding.
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27. A letter from the solicitors to the Respondents dated April 9, 2024
would come in for some analysis across the issues involved in this judgement.
In Paragraph 24 of that letter, it is asserted on behalf of the Respondents that
Atul was to fence and build a compound wall but defaulted in doing so. If
there had been a contracted obligation to fence an area and build a
compound wall, it would stand to reason that the area of land to be fenced
would have to be identified. That too would reasonably point to it being more
probable than not, that the parties knew which precise piece of land would
constitute the Subject Land. Therefore, it does not appear reasonable to wish
away the Atul Transaction Documents away as a bunch of documents with no
clue as to which parts of the Larger Land would constitute the Subject Land.
If the fencing was to be of the Larger Land, and that too by Atul, it would beg
the question as to whether Atul’s claim for protection on the Larger Land,
premised that it had a ROFR on it, would have carried greater weight than
what has been ascribed to the issue by the Learned Arbitral Tribunal.
28. Another relevant element is whether the subject matter of protection is
just the Subject Land or the Larger Land. Atul would contend that it has a
ROFR over development of the Larger Land. This is seen in Clause 4 of the
Atul MoU. Therefore, when presented with a prayer for preservation of the
subject matter of the dispute that is subject to arbitration, Atul would
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contend, the subject matter of protection includes its entitlement to the
Larger Land and the ROFR it enjoys on it. This too is not an argument that
can be summarily wished away. However, whether interim relief, when
moulded, must cover only the Subject Land or the Larger Land is entirely a
matter in the discretion of the Learned Arbitral Tribunal based on its
perception of the strength of the view on the prima facie case, perception of
grave injury and balance of convenience.
29. If it was found that there was hesitation in performing even the
obligations in relation to the Subject Land, due to financial and market
constraints, and that Atul was seen as being willing to truncate its
entitlements even to the Subject Land, it would be totally open to make no
interlocutory arrangements, subject of course, to whether the time to perform
had arrived and the pre-conditions to performance obligations had been met.
Was the Atul Transaction Documents Terminated on July 28, 2020?
30. One area of hot contest between the parties is whether the Atul
Transaction Documents was terminated on July 28, 2020. The Learned
Arbitral Tribunal has returned a summary view that they were terminated on
that date. The Respondents hope to have a declaration of Atul being
hopelessly barred by limitation by indicating that the termination took effect
on July 28, 2020 and arbitration was invoked only on February 21, 2024.
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The April 9, 2024 letter from the solicitors of the Respondents asserts so in
so many words. The effect of suspension of limitation periods between
March 15, 2020 and February 28, 2022 at the instance of the Supreme Court
in Suo Motu Writ Petition 3 of 2020 does not seem to have been factored in.
31. That apart, leaving limitation aside, the perceived delay could influence
a reasonable assessment of whether interim protection ought to be granted.
With that in mind, I have examined the assertion of termination having been
effected way back on July 28, 2020. It is clear from the letter issued on that
date (and this was nearly ten months after the DB Judgement) that Atul was
called upon to pay a sum of Rs. 12 crores failing which there would be an
automatic termination of the Atul Transaction Documents. This letter called
upon Atul to perform within 14 days and did sound an ultimatum. However,
this letter also invited Atul for a conversation on the subject. Atul did not
accept the position that the conditions to be met for payment obligations to
be triggered had been met. Atul replied on August 24, 2020 denying that the
stage for payment of Rs. 12 crores had arrived.
32. Thereafter, Nima issued another letter dated September 7, 2020 which
would indicate, prima facie, that the Respondent did not intend (then) for the
July 28, 2020 letter to have been a termination letter. This letter again called
upon Atul to perform the Atul Transaction Documents. It was stated
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explicitly that Nima hoped wiser counsel would prevail on Atul and it would
perform the obligations demanded of it in accordance with terms agreed
between the parties. If the July 28, 2020 letter was an inexorable
termination, there would have been no room for the letter dated September 7,
2020 asking for compliance. Neither had Atul performed the actions
demanded within 14 days of July 28, 2020 nor was Nima’s letter dated
September 7, 2020 (in response to Atul’s letter of August 24, 2020) in the
vein of asserting that the Atul Transaction Documents already stood
terminated. On the contrary, the threat of legal action if wiser counsel did
not prevail on Atul, could point to potential action for specific performance
being initiated by the Respondents not being ruled out.
33. Therefore, in my opinion, it cannot be reasonably held with the
certitude found in the Impugned Order that that there had been a
termination of the Atul Transaction Documents on July 28, 2020, or for that
matter, on September 7, 2020. Indeed, it was on December 18, 2023 that
Nima actually terminated the Atul Transaction Documents and enclosed a
cheque for the Rs. 5.51 crores received until then from Atul. By this time, the
Respondents had achieved the commercial and financial security from the
Oberoi MoU (executed in October 2023). It was on December 18, 2023 that
the election to terminate was clearly made and the potential to litigate for
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specific performance was conclusively shelved. Arbitration was invoked by
Atul in February 2024 and in the interregnum, mediation was attempted for
what was evidently a commercial dispute. Both parties could equally be
accused of remaining silent for three years since July / September 2020. The
Respondents, of course, were battling a renewed effort by the Government of
Maharashtra to take possession of the Larger Land – indeed, far from
absolute title, even mutation entries indicating taking of possession on paper
were passed, taking back the land in purported cancellation of the Lease
Deed. The Oberoi MoU was executed in October 2023 and the Atul
Transaction Documents were explicitly terminated in December 2023.
34. It appears to me that the reference to these dates by the Learned
Arbitral Tribunal is in the context of articulating the fact that Atul sought to
invoke arbitration much later (in February 2024 – perhaps after becoming
aware of the risk that the ship was sailing), and this weighed with the
Learned Arbitral Tribunal on the decision not to grant interim relief. That is
understandable. However, it cannot be ruled at this stage for any purpose of
the arbitration proceedings that the Atul Transaction Documents stood
terminated on July 28, 2020.
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Relevance of the Oberoi MoU:
35. The Oberoi MoU is a very important element of these proceedings. The
Oberoi MoU was executed on October 16, 2023 along with the Sub-Lease
Termination Deed. The two instruments executed simultaneously on the
same day appear to be a device structured to bring to an end, the interests of
Atul. The Sub-Lease Termination Deed (signed by Mr. Majithia for himself;
for Nima and for India Farmers) was a self-executed instrument that would
enable the Respondents to contend that Nima had no title to the Larger Land,
which was part of the land leased by the Government of Maharashtra to India
Farmers and sub-leased by India Farmers to Nima. Third party interest in
the hands of Oberoi was created in parallel.
36. In the letter written by solicitors of the Respondents on April 9, 2024,
there is an assertion that the Sub-Lease Termination Deed had been
executed. The effect of the Sub-Lease Termination Deed would be an internal
document executed to be self-serving to one of the parties to the instruments
constituting the Atul Transaction Documents.
37. One of the reliefs sought in the Section 17 Application is a full
disclosure of all documents executed in relation to the land covered by the
Atul Transaction Documents. There is no doubt that the execution of the
Oberoi MoU was necessarily required to be part of the assessment and
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adjudication by the Learned Arbitral Tribunal. A redacted version of the
Oberoi MoU was purportedly brought on record by the Respondents –
“purportedly” because, in my opinion, the document tendered by the
Respondents was as good as not producing anything at all.
38. I have already outlined the flow of events in these proceedings before
my predecessor who had called for the Oberoi MoU to be produced without
any masking for consideration by the Court, but in a sealed cover i.e. not for
being shared with Atul. As stated earlier, I have gone through it. I am left
with no doubt in my mind that if this document had been called for by the
Learned Arbitral Tribunal just like my predecessor had called for it, the
Learned Arbitral Tribunal would have taken a significantly different view of
the matter. A number of conclusions drawn by the Learned Arbitral
Tribunal, in my opinion, would have well stood undermined, had the Learned
Arbitral Tribunal seen the Oberoi MoU in its entirety. That the Learned
Arbitral Tribunal had been prevented from getting a full picture is evident
from the manner in which a glimpse of the Oberoi MoU was purported to be
provided to the Learned Arbitral Tribunal, if the manner of redacting could
even be regarded as leading to even a “glimpse”.
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39. A careful examination of the redacted Oberoi MoU would show that
what was a 33-page document was presented as a six-page document. Of the
four pages of recitals that are replete with the history of the transactions over
the same land, just one page with a large black patch on it was filed. The
provisions, including the definitions and the operative provisions contain
references to the Atul Transaction Documents. These ought to have been
part of the mix for consideration by the Learned Arbitral Tribunal so that it
could consider an appropriate relief even if it were to be of the view that
prima facie, Atul has not been able to show a strong demonstration of having
been ready and willing to perform. Unfortunately, the end result is that the
entire evidence that would have enabled an informed decision by the Learned
Arbitral Tribunal had been kept away from the Learned Arbitral Tribunal.
40. Indeed, Section 19 of the Act makes it clear that arbitral tribunals are
free to conduct proceedings in such manner as they deem appropriate. This
would include the power to determine admissibility, relevance, materiality
and weight of any evidence. Since Section 37 envisages a statutory right to
appeal from decisions refusing to grant an interim measure, if it appears to
the Section 37 Court that a certain decision on the manner of allowing
evidence has been unreasonable or implausible, leading to a rejection of the
interim relief under Section 17, an intervention may be made. It is apparent
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that the Learned Arbitral Tribunal took a view on the basis of the redacted
Oberoi presented by the Respondent – six out of 33 pages, of which two are
title pages and two are the signature pages and one page is the schedule to
show that a third party interest has been created on the same land. By
adopting such an approach, the Learned Arbitral Tribunal was led to believe
that the rest of the Oberoi MoU would be totally irrelevant to a decision
under Section 17 of the Act. In my opinion, the contrary is true.
41. The situation in hand is not even that the Learned Arbitral Tribunal
was fully shown what the Oberoi MoU entailed, with an application being
made for keeping it confidential – neither the Learned Arbitral Tribunal nor
Atul were any wiser about the contents of the Oberoi MoU and its import for
the matter at hand. This is not to suggest that the Learned Arbitral Tribunal
must necessarily have seen the Oberoi MoU behind the back of Atul. Dealing
with a similar situation in a writ petition involving development of property,
the declaration of the law by a Learned Division Bench of this Court, in the
case of Sonali Ashok Tandle2 would be apt to cite:
2
Sonali Ashok Tandle vs. Rannka Lifestyle Ventures – 2023 SCC OnLine Bom 1918
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18. Pausing briefly for a moment, we note that the previous
Division Bench accepted without comment the tendering of some
documents in sealed cover by the 1 st Respondent. This Court has
previously thoroughly deprecated this practice. 1 So has the
Supreme Court, most recently in Madhyamam Broadcasting
Ltd. v. Union of India2 We specifically disapprove of this and do
not permit it. It undermines the legitimacy of the adjudication
process in any system based on an adversarial proceeding. The
simplest general principle is that anything that the Court can see,
the opposing party must be allowed to see. Any exceptions must be
narrowly tailored, whether under the Evidence Act or some other
governing law. Nothing in this matter invites a single one of the
exceptions in the Evidence Act regarding privilege, i.e., immunity
from disclosure. In other jurisdictions, most particularly in the UK
limited disclosures or non-disclosures are permitted. But such
‘Closed Material Proceedings’ are now governed by statute and
always subject to judicial oversight. They are mostly in cases of
national security, immigration, etc. It is never for a party to decide
for itself what it will or will not disclose — most especially when
there is an order of the Court ordering and compelling disclosure
on affidavit. Where there are private disputes between two parties
and a Court has ordered a party to make a disclosure on Affidavit
of some material, there is simply no question of that party putting
in anything ‘in sealed cover’. As a matter of law, that is non-
compliance with a judicial order. In a given case, it will invite
action in contempt. If immunity from disclosure is sought, that is
an application that must be made to a court and must receive a
judicial order. No litigant can disadvantage the opponent by
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squirrelling some information into the court record ‘in sealed
cover’. No party is entitled can rely on such ‘sealed cover
material’ to the prejudice of the other side, and no court should
permit it. To do so flies in the face of every concept of fair justice
and openness and transparency in the decision-making process. It
is time to bury this thoroughly pernicious practice.
42. Madhyamam Broadcasting3 referred to by the Learned Division Bench
was a case of denial of reasons for refusal to provide approval for
broadcasting of a television channel on the ground of national security. The
facts involved in this Appeal involve no element of national security – it is a
private dispute between two builders about the manner of dealing with
development of the land. The land covered by their agreement forms subject
matter of another agreement, which is alleged to have been executed when
their agreement subsisted. There is nothing sensitive about the content that
would impinge on public interest, necessitating hiding of the same.
43. Therefore, in my view, the Learned Arbitral Tribunal was deprived of a
full picture by the manner of redacting of the Oberoi MoU. It is only
appropriate that the Learned Arbitral Tribunal and Atul should know what is
in the Oberoi MoU, since the contents speak for themselves. There are
provisions in it that actually relate to the Atul Transaction Documents.
3
Madhyamam Broadcasting Ltd. Vs. Union of India – (2023) 13 SCC 401
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Perusal of these provisions would have enabled Atul to make submissions on
the state of mind of the Respondents and the appropriate interlocutory
measures necessary in the circumstances. The Learned Arbitral Tribunal
would have benefitted from the contents of the Oberoi MoU to discern the
precise factual position involved and the Respondents’ own position on
whether Atul had any rights over the Subject Land or the Larger Land. All of
this has escaped adjudicatory attention because of the approach adopted.
44. Another facet of the Oberoi MoU is whether it could have at all been
executed without violating a requirement of law. This facet is integrally
connected to whether the 2002 SCN posed a fetter on free and marketable
title to the Larger Land. I have dealt with that facet where I deal with the
import of the 2002 SCN, which in turn is directly linked to whether the DB
Judgement resulted in free, marketable and clear title to the Larger Land. All
of these have been dealt with in the next section.
Did the 2002 SCN Constitute a Fetter on Title?
45. It is apparent that under the Atul Transaction Documents, until the
cloud over Nima’s title to the Subject Land was lifted, no further payments in
addition to the monies already paid, were due. Equally, the Atul Transaction
Documents were incapable of termination only after the title became free and
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marketable and the parties registered a proper development agreement.
46. The key issue that arises for consideration is whether the DB
Judgement comprehensively enabled free and marketable title to the Subject
Land in Nima’s possession as a sub-lessee. Clause 4 of the Confirmation Deed
(executed on November 2, 2015) has weighed with the Learned Arbitral
Tribunal. Clause 4 is a follow-on provision to Clause 3, which provides that
Nima has undertaken work to clear the title to the Subject Land such that
possession of the entire land with title would be clear for submissions to be
made to the MCGM for the redevelopment. For carrying out such work (to
have title cleared), Atul was to pay Rs. 2 crores on execution of the
Confirmation Deed and Rs. 3 crores ” against almost work of title by revenue
department and / or by court is clear”. Clause 4 goes on to say that Nima has
promised that the procedure would be completed in six months with clear
title and then the parties would execute registered documentation for the
development.
47. The DB Judgement indeed struck down the earlier view of the
Collector, which had been endorsed in the Revenue Minister Order, that in
terms of the factual matrix set out in these instruments, the Lease Deed had
been violated. The DB Judgement, however, restored the 2002 SCN. In
doing so, the DB Judgement did not effect any carve-out to the terms on
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which the 2002 SCN stood entirely revived.
48. A careful reading of the 2002 SCN would show that apart from it being
a show cause notice, it also doubled up as an interim order that contained
prohibitions on alienating any portion of the Larger Land without the
consent of the Government of Maharashtra. Therefore, it would not be
possible to state that the DB Judgement emphatically cleared all cloud over
title. It did clear the cloud arising of the Collector’s original view that had
been expressed on April 26, 1993 and had culminated in the Revenue
Minister Order of May 18, 1998. However, the DB Judgement revived the
2002 SCN. Indeed, the 2002 SCN dealt with alienation that arose by way of
creation of encumbrances on the land in favour of Indian Bank, without
permission of the Government of Maharashtra. On this ground too, the
Lease Deed could have been cancelled, as indeed occurred later, in fact,
contemporaneously with the September 7, 2020 Notice to Atul asserting that
the title was clear. However, the 2002 SCN having doubled up as interim
order containing prohibitions on dealings in the land, and specifically having
been revived by the DB Judgement, contained a direction, which too was
revived, not to deal freely with the Larger Land. Therefore, in my opinion, it
would not be possible to hold with any certitude that the DB Judgement
cleared all cloud over title to the Subject Land.
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49. The language of the Confirmation Deed has to be seen in the light of
the aforesaid facts. The usage of the words ” almost work of title….is clear”
would indicate that the commercial agreement between the parties was that if
a substantial element of the title being clear was achieved, the payment under
Clause 4 would be triggered. This is the nature of the language used through
the Atul Transaction Documents (in one place “lapse” is spelt as “laps”) and
the authors of these instruments have presented the Learned Arbitral
Tribunal with a serious challenge in interpreting their true intent just as they
did with their WhatsApp chats.
50. It would be a plausible and reasonable prima facie finding that while
the DB Judgement did not result in a full, free and clear title to the Larger
Land, it did potentially present a situation where the title was almost clear,
triggering the payment instalment due under Clause 4 of the Confirmation
Deed. However, the payment of Rs. 12 crores due under Clause 7 of the Atul
MoU was linked to “obtaining absolute clear title”. Certainly, the DB
Judgement, which revived the 2002 SCN could not be regarded as conferring
absolute clear title. Prima facie, the Confirmation Deed supplemented the
Atul MoU and did not override the Atul MoU. This facet of nuance does not
appear to have been presented to the Learned Arbitral Tribunal and analysis
of this nature is not found in the Impugned Order. Therefore, the view that
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the DB Judgement rendered absolute clear title appears to me as being
summary in nature, particularly since the 2002 SCN containing a prohibition
on dealing with the land was explicitly revived by the DB Judgement.
51. In the ordinary course, it would be trite to say that the mere issuance of
a Show Cause Notice is not a fetter unless an adjudication is made on such
notice. However, where the Show Cause Notice doubles up as an interim
order, and what is revived by an explicit Court Order (that remained
unchallenged) is the entire Show Cause Notice without pruning the fetter on
free and marketable title, with the greatest respect to the Learned Arbitral
Tribunal, it would not be possible to concur that the DB Judgement led to
conferment of absolute and clear title on Nima for the Larger Land, and
thereby the Subject Land.
52. Indeed, the 2002 SCN could be said to have been pruned in its content
in relation to its basis – the creation of encumbrance in favour of banks
without consent of the Government of Maharashtra. On the remaining facts
that formed subject matter of the Revenue Minister Order, there was an
adjudication already by the DB Judgement. However, it is reasonable to
attribute the retention of the directions (not to transact in the land without
government approval) to the remaining basis i.e. the creation of
encumbrance without consent. That residual basis too could still have led to
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cancellation of the Lease Deed (as it indeed would later). In short, at this
stage, the factual developments that transpired later would show that Atul
had made a fair point – that the amount of Rs. 12 crore under the Atul MoU
was not due since absolute title had not been obtained.
53. When the first purported termination letter dated July 28, 2020 was
issued, the situation had not changed. Similar was the case on September 7,
2020, when Nima hoped better sense would prevail and again called upon
Atul to perform on the Atul Transaction Documents. Worse, an adverse
order was actually passed by the Collector on September 18, 2020, ten days
after the letter dated September 7, 2020, calling upon Atul to perform the
payment obligation. In fact, it is an admitted position that on September 23,
2020, the State officials attempted to take physical possession even while
they took paper possession by making mutation entries actually changing the
title to the Larger Land to the name of the Government of Maharashtra.
54. Looking at these contemporaneous developments, it would be
impossible to hold that in July 2020 or in September 2020, Nima and India
Farmers had clear title to the Larger Land. On September 24, 2020, this
Court had directed in WP 3607 that status quo be maintained. While it is
trite law that a mutation entry would not necessarily be determinative of title
in a conclusive manner, and admittedly, physical possession was in the hands
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of the Respondents, the status quo that was to continue would at best have
been the status quo obtaining after giving effect to the DB Judgement.
Therefore, it cannot be said that absolute and clear title in favour of the
Respondents was in existence.
55. The Oberoi MoU and the self-executed tripartite Sub-Lease
Termination Deed of October 16, 2023 would follow three years later. The
final clearance of the fetter on free and marketable title would cease only on
September 19, 2024 when the then incumbent Revenue Minister would
discharge the 2002 SCN and hold emphatically in favour of the Respondents.
Curiously, this Order of the Revenue Minister putting a final end to the
controversy (for the first time) was not even placed before the Learned
Arbitral Tribunal, which only had the DB Judgement and the redacted Oberoi
MoU to go by.
56. There has been a dispute during this Appeal about Atul’s access to the
Order of the Collector passed on September 18, 2020. This document was
indeed handed in by the Respondents as part of their Compilation of
Documents in the course of the arbitration proceedings. Mr. Khambata
would place strong reliance on the fact that Atul did not rely on the aforesaid
Order dated September 18, 2020 despite it being available during the
arbitration. In my opinion, at worst one could draw a conclusion of poor
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strategy or even folly for not relying on that Order in the proceedings.
However, that instrument and the consequential action to take possession
and the direction to maintain status quo are all part of the record. Whether
Atul failed to make a better argument in the arbitral proceedings by relying
on this Order would not change the legal position and status of whether there
was absolute clear title when the Oberoi MoU was executed. The Order of
September 18, 2020 was to the knowledge of the Respondents on September
24, 2020, when they informed this Court in WP 3607 that the Order had not
even been served on the Respondents. Atul was not informed about these
developments at that time. Had he been informed and yet kept quiet, the
analysis would change. Yet, the Respondents had contended before the
Learned Arbitral Tribunal that they had validly terminated the Atul
Transaction Documents on July 28, 2020 for non-payment of the Rs. 12
crores, which was payable against absolute and clear title being available.
57. The Order of September 18, 2020 and the attempt at taking possession
on September 23, 2020 and the Order in WP 3706 on September 24, 2020
are all part of one continuum of events and form an integral part of the
material on record. Atul not having made submissions based on these
developments, which only came in through a Compilation of Documents,
cannot render this Court handicapped when dealing with whether there was
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absolute and clear title. If Atul did not rely on them in the proceedings and
only relied on the revival of the 2002 SCN, these developments were a
consequence of the revived 2002 SCN.
58. Indeed, the sequence of events set out by Mr. Khambata in his written
submissions are instructive. After the status quo order in WP 3706, the
Additional Commissioner, Konkan Division passed an Order dated October
15, 2020 staying the Collector’s Order dated September 18, 2020. This Order
staying the Collector’s Order was set aside by the Divisional Commissioner on
June 25, 2021. In fact, the Collector was directed to hear the matter afresh
and take into account a Government Resolution dated June 26, 2018 to
examine if unauthorised mortgages could be regularised by paying twice the
prescribed charges.
59. On January 19, 2022, the Collector ruled that such Government
Resolution would not apply. This Order was upheld by the Additional
Commissioner on July 4, 2022. The matter meandered on without there
being absolute and clear title until October 31, 2023, when the then
incumbent Revenue Minister passed the New Revenue Minister Order to
aside the Additional Commissioner’s Order dated July 4, 2022, thereby
bringing to an end the Collector’s Orders dated January 19, 2022 and
September 18, 2020. This was a comprehensive closure for the first time to
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the cloud on the title. The events of this period explain the silence on the
Respondents’ part, with Atul, from following through on the letters dated
July 28, 2020 and September 7, 2020.
60. What is piquant is that the New Revenue Minister Order was passed a
fortnight after the Oberoi MoU was executed on October 16, 2023. Therefore,
when the Oberoi MoU was executed, the cloud had continued, but within a
fortnight of the execution of the Oberoi MoU, immediately after its execution,
this new position was secured by way of the New Revenue Minister Order
dated October 31, 2023. Therefore, prima facie, it can be said that the cloud
posed by the 2002 SCN came to an end on October 31, 2023 while the truly
effective termination by the Respondents, with the refund cheque of Rs. 5.51
crores took place only thereafter, on December 18, 2023.
61. By this time, indeed it could be said that there was absolute and clear
title for the first time, although a review petition was also filed before the
Revenue Minister, which was disposed of finally on September 19, 2024. It is
this Order of September 19, 2024 that was not at all available to the Learned
Arbitral Tribunal and was given to Atul for the first time on December 3,
2024.
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Conclusions and Directions:
62. Based on the aforesaid analysis, a conspectus of the inter-play of the
various findings, and their relevance for the final outcome, would be
necessary. Needless to say, every single observation set out above is prima
facie in character. In my opinion, on a number of facets the Impugned Order
contains summary findings, primarily because the Learned Arbitral Tribunal
appears to have been handicapped by not having had access to the Oberoi
MoU. Therefore, I have been persuaded that the Impugned Order deserves to
be set aside by way of a remand, with the provision of the Oberoi MoU,
appropriately redacted. This is the only course that would be appropriate
and meet the ends of justice and fairness. In my opinion, the summary nature
of many critical findings that have come about, would warrant a remand. I
have given my anxious consideration as to whether this Court could itself
take a view, but I am constrained to note that a number of inter-connected
facets have emerged in this case, not all of which can appropriately be dealt
with for the first time by the appeal court without the benefit of analysis and
findings from the forum of the first instance.
63. In my opinion, the Oberoi MoU must necessarily be handed over in an
appropriately redacted form (as directed below) to the Learned Arbitral
Tribunal. As regards commercial interests of Oberoi, I have taken care to
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stipulate below what must be redacted in the Oberoi MoU, and what must
not be redacted:-
A) Nothing in the Recitals A to O shall be redacted;
B) Nothing in the Definitions Section shall be redacted;
C) Nothing in Clause 2 (Transaction) shall be redacted;
D) In Clause 3.1 (Clause 3.1.1 to Clause 3.1.9) the
amounts denominated in rupees in figures and words
shall be redacted, and nothing else shall be redacted;
E) In Clause 3.2 (Clause 3.2.1 to Clause 3.2.7) the
references to the percentages of revenue sharing shall be
redacted, and nothing else shall be redacted;
F) In Clause 4 (Clause 4.1 to Clause 4.6.4) and in
Clause 5 (Clause 5.1 to Clause 5.6) all amounts
denominated in rupees in figures and words, and to
percentages of revenue sharing shall be redacted, and
nothing else shall be redacted;
G) In Clause 6 (Clause 6.1 to Clause 6.8), nothing shall
be redacted except for the percentages of expense
sharing, which corresponds with the percentage of
revenue sharing. It is made clear that the percentages
relating to anything other than the aforesaid shall not be
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H) Nothing in Clause 7 and Clause 8 shall be redacted.
64. An authenticated copy of such redacted Oberoi MoU conforming to the
foregoing shall be filed before the Learned Arbitral Tribunal by the
Respondents and a copy shall be served on Atul within a period of four weeks
from the upload of this judgement on the website of this Court. Atul shall be
entitled to file an application seeking interim reliefs of such nature as advised
on the basis of its review of such redacted Oberoi MoU having become
available to it, and the Learned Arbitral Tribunal shall consider the same and
deal with such application, uninfluenced by whatever has been held in the
Impugned Order.
Summary of Conclusions:
65. A summarisation of my findings, to provide a comprehensive prima
facie thesis underlying my opinion that setting aside coupled with a remand
is necessary, is set out below:-
A) The land leased by the Government of Maharashtra to India
Farmers was over ~114 acres, of which India Farmers leased
100 acres to Nima, which in turn executed the Atul
Transaction Documents for 12.5 acres towards residential
development;
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B) It is difficult to conclude in the manner done in the
Impugned Order that there was no earmarking whatsoever
of the 12.5 acres of land that constituted the Subject Land.
The Confirmation Deed in particular, refers to a plan. The
Atul Transaction Documents entail involvement of an
architect. Atul has annexed a map at Exhibit J and claims
that inadvertently the plan was not annexed to the Section 9
Petition, which was converted into the Section 17
Application. The Respondents contest the very existence of
such a plan. This dichotomy in positions would have led to
a triable issue and that would have to be dealt with in the
arbitration proceedings after examining evidence. However,
the Respondents have persuaded the Learned Arbitral
Tribunal to conclusively hold that there was no plan
whatsoever. In my opinion, such a firm conclusion even on
a prima facie basis would not tenable. It would not be
possible to conclude that the Atul Transaction Documents
were an inchoate set of instruments with no clarity
whatsoever on where the Subject Land was meant to be
located within the Larger Land, with serious monies
changing hands. For dealing with the Section 17
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Application, in my opinion, a greater scrutiny of this issue is
warranted – the conclusion appears to be summary;
C) The Notice of termination dated July 28, 2020 called upon
Atul to pay Rs. 12 crores within 14 days, failing which
termination would take place. That very letter called for a
conversation. Atul denied the contents of that letter on
August 24, 2020. On September 7, 2020, yet another letter
was issued by Nima calling upon Atul to perform and
hoping better sense would prevail to avoid unnecessary
litigation. This letter, inherently calling for performance,
would indicate at least prima facie, that the July 28, 2020
letter was not a conclusive termination. The copious
deliberations on the purported absence of a pleading on
waiver of the termination are, in my opinion, unnecessary.
These two letters speak for themselves. The Respondents
did not have an evident intent to terminate the Atul
Transaction Documents at that time, and could have even
sued for specific performance, particularly when the
September 7, 2020 letter actually called upon Atul to
perform. In their eventual termination letter dated
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December 18, 2023, the Respondents claim to have
terminated the Atul Transaction Documents “once again”
and with “immediate effect”. This is untenable. For the
reasons set out above, the clear and comprehensive
termination took place only on December 18, 2023, when a
cheque for refund of Rs. 5.51 crores was enclosed. It is
evident that this firm step of termination was taken only
after securing the New Revenue Minister Order, which too
had followed a fortnight after the Oberoi MoU was
executed;
D) The DB Judgement of October 1, 2019 revived the 2002
SCN, which was not merely a Show Cause Notice but also a
direction prohibiting dealing with the Larger Land without
government approval. This is clearly not consistent with a
position of absolute and clear title. The Atul MoU required
payment of Rs. 12 crore only on obtaining absolute and
clear title. The Confirmation Deed used the ambiguous
“almost….clear” language, which has led to an inference by
the Learned Arbitral Tribunal that the DB Judgement
conferred clear title. Be that as it may, on neither of the two
dates competing for the termination date, namely, July 28,
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exist. Therefore, the obligation to pay Rs. 12 crores on either
of these dates cannot be said to have arisen;
E) The actual termination was effected on December 18, 2023,
with a refund of Rs. 5.51 crores being enclosed. However,
by this time, the Oberoi MoU was already executed on
October 16, 2023. Therefore, prima facie, the Oberoi MoU
was executed before the Atul Transaction Documents were
effectively terminated. This would have necessitated a
closer examination of what kind of interim relief would be
appropriate. However, with the Oberoi MoU not having
been given to the Learned Arbitral Tribunal except in such a
redacted form that rendered it meaningless in substance,
the range of facts that ought to have been analysed has
missed adjudication;
F) The cloud over title appears to have been truly lifted on
September 1, 2023 and eventually on October 31, 2023.
Indeed, the Oberoi MoU was executed on October 16, 2023,
and the clearing of the cloud took place in a fortnight
thereafter. The Learned Arbitral Tribunal not having had
the benefit of seeing any provision worth its name in the
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Oberoi MoU, the Impugned Order has no analysis on the
validity of executing the Oberoi MoU. Such execution was
effected during the subsistence of the Atul Transaction
Documents as also during the subsistence of the status quo
order of this Court passed in WP 3607. The Impugned
Order has simply recorded that the Learned Arbitral
Tribunal has accepted the statement made by Respondents’
counsel, on instructions, that third party rights had already
been created. After the Oberoi MoU, redacted as above, is
made available, the Learned Arbitral Tribunal would be able
to revisit this facet and take a clear view;
G) The Oberoi MoU, with the specific redacting directed earlier
in this judgement must be released to Atul and to the
Learned Arbitral Tribunal within a period of four weeks
from the upload of this judgement on the website of this
Court. Atul shall be entitled to file an application seeking
appropriate reliefs after having examined the Oberoi MoU
as directed above;
H) Whether the NDZ classification of the Larger Land has an
inexorable necessary implication of no residential
development at all being possible is a question that the
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Learned Arbitral Tribunal has to consider. The finding that
the NDZ could never entail residential development at all
appears to be inaccurate. Indeed, the DCPR 2034 enables
residential development although incidental to development
for IT and ITES units. Indeed, the Oberoi MoU entails
elements of non-IT and non-ITES development and indeed
residential development. These facets would need a non-
summary examination and towards this end, the provision
of the Oberoi MoU would enable the Learned Arbitral
Tribunal to examine how residential development is still
possible and has actually been envisaged;
I) The WhatsApp chat transcript does indicate that on October
17, 2019, Atul appears to have expressed apprehension
about having to pay Rs. 12 crore and was willing to prune
the size of his entitlements under the Atul Transaction
Documents. However, at this stage, absolute and clear title
had not been obtained – the DB Judgement revived the
2002 SCN and with it, the fetter on dealing with the Larger
Land. There is nothing wrong with the Learned Arbitral
Tribunal seeking to interpret the WhatsApp chat and it
cannot be totally dismissed as “gibberish”. However, the
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very same WhatsApp chat transcript also contains Atul’s
assertion that the milestone to pay the Rs. 12 crores had not
been reached. Therefore, the parties were engaged in a fluid
conversation, and greater scrutiny of the factual position
obtaining then would be necessary, without which the
adverse inference drawn from the WhatsApp chat transcript
would be summary in character. In view of the other
findings such as the implication of the DB Judgement, this
facet would need to be revisited more comprehensively.
66. I have given my anxious consideration to the standard of review to be
adopted in exercise of the jurisdiction under Section 37 when considering a
challenge to an Order passed under Section 17 of the Act. I am conscious of
the light-touch approach necessary in this jurisdiction. The state of the law
has been summarised succinctly by a Learned Single Judge of this Court
(Manish Pitale J.) in Paragraph 27 to Paragraph 29 of Max Healthcare
Institute Ltd. Vs. Touch Healthcare Private Ltd. & Ors. 4 Even while the scope
for interference would be tempered and measured, also bearing in mind the
legislative objective of limited interference by the Court under the Act, if the
Impugned Order misses considering material facets of the matter, or
4
Commercial Arbitration Petition (L) No. 20533 of 2023.
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considers what must not be considered, the scope of review would lend itself
to examining the perversity that may emerge from the Order impugned.
67. For the reasons set out above, it is apparent that on multiple counts,
the views taken in the Impugned Order are implausible. The contents of the
multiple termination letters from the candidates speak for themselves, and
yet a firm view has been arrived at that the Atul Transaction Documents were
terminated on July 28, 2020. The Oberoi MoU, presented in the manner it
was, clearly indicates that there was significantly more than what met the
eye. The full document now having been seen by me, I would be remiss if I
did not take note of its contents and refrained from taking the consequential
action from what is disclosed in it. The status quo directed by this very Court
having been in operation when the Oberoi MoU was signed, also cannot be
ignored. The sweeping conclusion about residential development being
impossible on NDZ land adds to the mix above. Therefore, for the various
reasons articulated in this judgement, I am of the view that there is no option
but to interfere with the Impugned Order.
Oberoi’s Intervention Application:
68. I am also conscious that the Learned Arbitral Tribunal has held that it
has no jurisdiction to hear contentions of Oberoi, which would be necessary
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for considering the Oberoi MoU. Oberoi has sought to be impleaded in these
appellate proceedings, which have led to a remand. Therefore, Oberoi is
willing to subject itself to the proceedings so that it can be heard and the
manner of impact on its interests can also be considered. Curiously, Atul has
opposed allowing impleadment of Oberoi stating that it is not a party to the
arbitration agreement – curious because Atul seeks reliefs that would have an
impact on Oberoi, and it would only be appropriate that Oberoi is heard.
69. Meanwhile, the law on the power of the Learned Arbitral Tribunal to
join veritable parties has made a significant forward movement in a recent
judgement of the Supreme Court in ASF Buildtech5. It has been made clear
even that the Learned Arbitral Tribunal can implead a non-signatory party,
without the role of a reference court, on its own motion, if the requisite
factors are found.
70. In the instant case, the Oberoi MoU has interceded into the subject
matter of the Atul Transaction Documents before they were terminated. The
execution of the Oberoi MoU has been followed by the resolution of the
dispute with the Government of Maharashtra as envisaged therein, within a
fortnight. This is precisely the approach that had been envisaged in the Atul
Transaction Documents as well, but with a six-month expectation from Nima,
5
ASF Buildtech Pvt. Ltd. Vs. Shapoorji Pallonji and Co. Pvt. Ltd. – 2025 INSC 616 – See
Section C(ii)
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the deadline being extendable by Atul.
71. Oberoi has volunteered to be impleaded in this Appeal, and disposal of
this Appeal has led to a remand. Therefore, this is not a case where an
arbitral tribunal is seeking to bind a third party to its proceedings – instead,
the third party is volunteering to join the proceedings.
72. The Oberoi MoU is being directed to be introduced into the evidence
before the Learned Arbitral Tribunal, with appropriate redacting as directed
above. The Learned Arbitral Tribunal would have the benefit of getting a
complete and holistic picture with Oberoi’s participation. In any case,
Oberoi’s entry into the fray has led to Oberoi’s interests being aligned with
the interests of the Respondents in the very same subject matter of the
arbitration agreement. The Oberoi MoU makes many references to the Atul
Transaction Documents and to Atul – not just recitals of history. Therefore,
making Oberoi a party, and directing the Oberoi MoU to be considered
without the inhibition of Oberoi being a non-signatory, would meet the ends
of justice and would also not hurt Atul. Atul, of course, is dominus litis. If
the impleadment had been permitted by this Court, Oberoi would have been
heard in these appellate proceedings. Oberoi not having participated in the
Section 17 proceedings, and coming in the appellate stage would have skewed
the position. However, going by the same framework in which the Learned
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Arbitral Tribunal considered the matter, this judgement has been rendered.
Since a remand is being directed, it is only appropriate that the Learned
Arbitral Tribunal considers Oberoi’s Impleadment Application too and takes
an appropriate view.
73. Section C(ii) in ASF Buildtech is a comprehensive summary of the law
on the subject, but in this regard, just the following extracts are noteworthy :-
123. What can be discerned from the above is that the
recourse to doctrine of implied powers would be permissible,
if without it, it is impossible to effectuate a final power, and
such exercise of implied power would effectuate and advance
the object of the legislation.
124. Cox and Kings (I) (supra) has elaborately acknowledged
the unique complexities posed by contemporary business
transactions to the traditional framework of arbitration.
Historically, arbitration gained prominence in the context of
straightforward and linear bilateral transactions under the
mercantile system of law. While over the past century, the
nature of modern commercial transactions has undergone a
profound transformation with the involvement of
multifaceted obligations between multiple parties and
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complex contractual structures more sophisticated than the
linear parent- subsidiary type of organization, that has
rendered the traditional dyadic paradigms of business
obsolete, particularly in areas such as construction contracts,
financing transactions, reinsurance contracts, the framework
of arbitration has, to a significant extent remained
unchanged, leading to a mismatch between procedural form
and commercial substance.
125. For arbitration to remain a viable and effectively
alternative mechanism for dispute resolution, it is
imperative to ensure that commercial reality does not
outgrow this mechanism. The mechanisms of arbitration
must be sufficiently elastic to accommodate the complexities
of multi-party and multi-contract arrangements without
compromising foundational principles such as consent and
party autonomy. The approach of courts and arbitral
tribunal in particular must be responsive to the emerging
commercial practices and expectations of the parties who
submit themselves to it.
[Emphasis Supplied]
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74. In view of the foregoing, in my opinion, this is a fit case for the
Impugned Order to be set aside with a remand for a reconsideration on
merits on the basis of the findings rendered above. On remand, with the
benefit of the Oberoi MoU, to be redacted in the manner directed above, the
Learned Arbitral Tribunal would be in a better position to consider whether
and what appropriate interim reliefs are warranted.
75. With the aforesaid conclusions and directions, this Appeal is finally
disposed of. I am conscious that the parties will need some time to assess the
findings in this judgement and consider their respective positions. Therefore,
I have provided a period of four weeks from the upload of this judgement on
this Court’s website for the Oberoi MoU, redacted as directed above, to be
provided by the Respondents to Atul and to the Learned Arbitral Tribunal.
76. The protective arrangement obtaining as of today in favour of Atul
shall continue for a further period of two weeks from the expiry of the
aforesaid four-week period, within which the appropriately redacted Oberoi
MoU is required to be sent to Atul. This would enable Atul to review the same
and make an appropriate application to the Learned Arbitral Tribunal within
such period.
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77. The issue of costs for this round of litigation is deferred for
consideration by the Learned Arbitral Tribunal when it hears the arbitration
proceedings finally.
78. All actions required to be taken pursuant to this order, shall be taken
upon receipt of a downloaded copy as available on this Court’s website.
[ SOMASEKHAR SUNDARESAN, J.]
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