THE PANTNAGAR INDRAYANI CHS LTDversusSHAGUN REALITY

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                                                                             Sayali


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                ORDINARY ORIGINAL CIVIL JURISDICTION

                                ARBITRATION PETITION NO. 45 OF 2026

SAYALI             Pant Nagar Indrayani Chs. Ltd              … Petitioner
DEEPAK                       V/s.
UPASANI
                   Shagun Reality and Others                  … Respondents
Digitally signed
by SAYALI
DEEPAK
UPASANI
Date: 2026.09.23   Mr. Mohit Jadhav with Mr. Manish Shirke i/b Mohit
18:43:47 +0530
                   Jadhav, for Petitioner.
                   Ms. Lizum Wangdi with Mr. Aniket Mokashi, Mr.
                   Aneesh Shahade, Mr. Kaustubh Bhosale i/b Aniket
                   Mokashi, for Respondent nos. 1 and 2.


                                              CORAM     : AMIT BORKAR, J.

                                              DATED     : SEPTEMBER 23, 2026

                   P.C.:

                   1.      The Petitioners seek directions against the Respondents
                   and/or any person claiming through them to enter into and
                   execute an agreement with each of the members/flat owners in
                   respect of the additional carpet area of about 72 sq. ft. and to
                   register such agreement before the Registrar of Assurances.

                   2.      On 29 June 2006, the Petitioners entered into registered
                   Development Agreements with the Respondents. Thereafter, on
                   10 September 2010, the parties executed a registered Deed of
                   Rectification of the Development Agreement. Subsequently, on 30
                   August 2011, the Petitioners and the Respondents entered into a



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registered Supplementary Agreement. On 8 January 2023,
Respondent No. 2 attended the Managing Committee meeting of
the Petitioner and assured that the terms of the Development
Agreement would be complied with. Thereafter, on 12 July 2024,
the Petitioners, through their Advocate, issued a notice calling
upon the Respondents to comply with the terms of the
Development Agreement. According to the Petitioners, the
Respondents have, till date, failed to comply with the said terms.
The Petitioners have, therefore, filed the present Arbitration
Petition.

3.    Mr. Mohit Jadhav, learned Advocate appearing for the
Petitioners, submitted that under the Development Agreement,
Respondent No. 1 had principally agreed to provide Self-
Contained    Permanent      Alternate    Accommodation          (PAA)
admeasuring about 323 sq. ft. to the original 30 members. He
submitted that Respondent No. 1 had agreed to pay compensation
of Rs.45,00,000/- to the Petitioners. According to the Petitioners,
Respondent No. 1 had agreed to fulfil the other obligations and
commitments set out in the Development Agreement. The
Petitioners have placed before the Court a tabular statement
setting out the relevant terms and features of the Development
Agreement dated 29 June 2006. Learned Advocate submitted that
the Petitioners rely upon the statement showing the monthly rent
compensation    payable    by    the    Respondents     under      the
redevelopment    agreements.    According    to   the   Petitioners,
substantial amounts towards such monthly compensation remain



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unpaid. The Petitioners claim the outstanding amount from the
Respondents together with interest at the rate of 18% per annum
until the date of payment. Learned Advocate submitted that in
January 2023, the Petitioners received a Property Tax Notice from
the MCGM demanding payment of arrears. The Petitioners,
therefore, by their letter dated 30 January 2023, called upon the
Respondents to pay the said arrears. Thereafter, by a letter dated
8 December 2023, the Petitioners again called upon the
Respondents to pay all amounts payable to the competent
authorities and to furnish the receipts evidencing such payment.
According to the Petitioners, despite the assurances given by the
Respondents under the agreements and in the meetings held
between the parties, the Respondents failed to discharge their and
statutory obligations. Being aggrieved by such failure, the
Petitioners issued a notice invoking arbitration under Clause 64 of
the Development Agreement dated 29 June 2006. The said notice
was sent by Registered Post A.D. The postal record indicates that
Respondent Nos. 1 and 2 refused to accept the notice, while
Respondent No. 3 had left the address.

4.   The Respondents had agreed under the Supplementary
Agreement dated 30 August 2011 to provide each member a flat
having a carpet area of 484 sq. ft. in the redeveloped building.
According to the Petitioners, the Respondents have in fact
constructed and provided flats having a carpet area of 556 sq. ft.
Thus, there is an additional carpet area of 72 sq. ft. According to
the Petitioners, the Respondents are required to execute an



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agreement recording the said additional carpet area of 72 sq. ft.
in favour of each member/flat owner and to register such
agreement before the Registrar of Assurances. The Petitioners
have relied upon various statements of accounts in support of
their claim. According to the Petitioners, these statements show
that the Respondents are jointly and severally liable to pay a sum
of Rs.6,01,98,113/- to the Petitioners. On this basis, the
Petitioners seek an order directing the Respondents to secure the
said amount of Rs.6,01,98,113/- before this Court, in such
manner and within such time as this Court may consider
appropriate.

5.   Ms. Lizum Wangdi, learned Advocate appearing for the
Respondents, submitted that Respondent No. 1 had made
substantial payments towards transit rent to the original members
of the Petitioner Society from the time when the respective
members vacated their premises for redevelopment. According to
her, these payments commenced around May 2010 and
continued, in the case of the concerned members, until around
December 2018. She submitted that around December 2018, the
financial position of Respondent No. 1 was brought to the notice
of the members of the Petitioner Society. The members were
informed that Respondent No. 1 was facing financial difficulties
and was no longer in a position to continue making transit rent
payments at the existing rate while at the same time arranging
the funds required for completing the redevelopment project. She
submitted that Flat No. 401 was allotted to Mr. Prakash Kundalia



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under an allotment letter dated 18 May 2010. Subsequently, due
to changes in the sanctioned plans and the configuration of the
redevelopment project, the allotment was changed and Mr.
Prakash Kundalia was allotted Flat No. 901. She submitted that
Flat No. 1002 was allotted to Mr. Ashok B. Vadalia (HUF) under
an allotment letter dated 14 August 2021. Flat No. 1503 was
allotted to Mrs. Arti Asit Kothari and Mr. Maulik Asit Kothari
under an allotment letter dated 14 October 2019. Flat No. 1602
was allotted to Mr. Maulik Asit Kothari and Mrs. Arti Asit Kothari
under an allotment letter dated 22 September 2021.

Reasons and Findings

6.    I have considered the pleadings and what is submitted by
both sides. I have gone through the documents and agreements
relied upon by the Petitioners and the Respondents. The reliefs
claimed by the Petitioners are arising from the obligations of the
Respondents under the Development Agreement dated 29 June
2006, the Deed of Rectification dated 10 September 2010 and the
Supplementary Agreement dated 30 August 2011.

7.    The first relief claimed by the Petitioners is regarding the
additional carpet area of 72 sq. ft. The Petitioners are relying
upon the Supplementary Agreement dated 30 August 2011. Their
case is that under the said agreement the Respondents were
required to give 484 sq. ft. carpet area to each concerned member.
According to the Petitioners, the flats constructed and given are of
556 sq. ft. carpet area. Therefore, there is an additional area of 72




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sq. ft. The Petitioners have stated this part of their case. They say
that the Respondents "agreed that they would be providing a Flat
admeasuring 484 sq. ft. carpet area in the redeveloped building,
but constructed and provided a Flat admeasuring 556 sq. ft.
carpet area." Thus, when 484 sq. ft. is deducted from 556 sq. ft.,
the difference is 72 sq. ft. The basis of the Petitioners' claim is
seen from the figures themselves.

8.    The Petitioners seek a direction to the Respondents to
execute and register an agreement showing this additional area in
favour of each member/Flat Owner. In this view, prayer (a) is not
asking for some entirely new right which has no connection with
the Development Agreement. The Petitioners are asking that the
additional carpet area which, according to them, has already been
constructed and provided, should be recorded by a registered
agreement.

9.    The Respondents have not placed sufficient material before
the Court to explain why, if the flats provided are having 556 sq.
ft. carpet area, an agreement recording such area should not be
executed and registered. There is no material before the Court to
show that the additional 72 sq. ft. is unauthorised. There is no
material showing that the Petitioners are claiming an area which
is against the sanctioned plan or against the agreement between
the parties.

10.   The main defence of the Respondents is about their
financial difficulties. Ms. Lizum Wangdi, learned Advocate




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appearing for the Respondents, submitted that Respondent No. 1
had made substantial payments towards transit rent from around
May 2010 and these payments continued for the concerned
members till around December 2018. This shows that Respondent
No. 1 had made payments for a considerable period. However,
this submission does not answer the particular claim of the
Petitioners about the additional 72 sq. ft. carpet area. It was
submitted on behalf of the Respondents that around December
2018 the members were informed that Respondent No. 1 was
facing financial hardship. It was stated that Respondent No. 1 was
not in a position to continue paying transit rent at the same level
and arrange the funds needed to complete the redevelopment
project. This may explain the difficulty in making some payments.
But financial difficulty alone cannot change an obligation which is
contained in a registered agreement. For changing such
obligation, there should be a valid agreement between the parties.
No such agreement regarding the additional 72 sq. ft. has been
shown before the Court.

11.   The earlier history of the transaction is important. The
parties first entered into the registered Development Agreement
dated 29 June 2006. Thereafter, the registered Deed of
Rectification   dated   10    September     2010   was     executed.
Subsequently,    the    parties   entered   into   the    registered
Supplementary Agreement dated 30 August 2011. These
documents are the basis of the relationship between the parties.
They cannot be put aside. The rights and obligations of the parties



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have to be seen from these documents and the terms contained
therein.

12.   The Respondents have stated that some flats were allotted
to different persons at different times. Flat No. 401 was allotted
to Mr. Prakash Kundalia under an allotment letter dated 18 May
2010. Subsequently, because of changes in the sanctioned plans
and the configuration of the redevelopment project, the allotment
was changed to Flat No. 901. Flat No. 1002 was allotted to Mr.
Ashok B. Vadalia (HUF) under an allotment letter dated 14
August 2021. Flat No. 1503 was allotted to Mrs. Arti Asit Kothari
and Mr. Maulik Asit Kothari under an allotment letter dated 14
October 2019. Flat No. 1602 was allotted to Mr. Maulik Asit
Kothari and Mrs. Arti Asit Kothari under an allotment letter dated
22 September 2021.

13.   The Respondents have relied upon these allotments while
opposing prayer (b). I have considered the submission. The fact
that allotment letters have been issued in favour of certain
persons does not bring an end to the claim of the Petitioners. In
fact, when these allotments are relied upon, it becomes necessary
that no rights are created in respect of these flats which may
make the claim of the Petitioners more difficult to enforce.

14.   Prayer (b) relates to four flats, namely Flat Nos. 901, 1002,
1602 and 1503 in Pantnagar Indrayani CHS Ltd., Building No. 13,
Pantnagar, Ghatkopar (East), Mumbai. The Petitioners seek an
injunction restraining the Respondents and persons claiming




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through them from dealing with these flats, parting with
possession, creating any third-party right, title or interest,
alienating or encumbering the said flats.

15.   The Petitioners have placed their statements of accounts
before the Court. According to them, Rs.6,01,98,113/- is payable
by the Respondents jointly and severally. They have relied upon
unpaid transit rent compensation and other amounts claimed
under the redevelopment arrangements. According to the
Petitioners, they had called upon the Respondents to perform
their obligations and make the payments which were required.

16.   The Petitioners have relied upon the Property Tax Notice
received from the MCGM in January 2023. According to them, by
letter dated 30 January 2023, they called upon the Respondents
to pay the arrears. Thereafter, by another letter dated 8 December
2023, they again called upon the Respondents to pay the amounts
payable to the competent authorities and to provide the receipts.
Therefore, it cannot be said that the grievance was raised by the
Petitioners for the first time only when the present proceedings
were filed.

17.   The Petitioners have relied upon the Managing Committee
meeting held on 8 January 2023. According to them, Respondent
No. 2 attended the meeting and assured that the Development
Agreement would be complied with. Thereafter, on 12 July 2024,
the Petitioners, through their Advocate, issued a notice calling
upon the Respondents to comply with their obligations. According




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to the Petitioners, even after this notice the obligations were not
complied with.

18.   The Petitioners thereafter invoked the arbitration clause
contained in Clause 64 of the Development Agreement dated 29
June 2006. The notice was sent by Registered Post A.D. According
to the postal record relied upon by the Petitioners, Respondent
Nos. 1 and 2 refused to accept the notice and Respondent No. 3
had left the address. The mere refusal to accept the notice cannot
be treated as compliance with the obligations under the
Development Agreement.

19.   I have considered the submission regarding transit rent. The
Respondents' case is that Respondent No. 1 had made substantial
payments from around May 2010 till around December 2018.
This submission is required to be considered. It shows that
payments were made for a long period. At the same time, the
Respondents themselves state that after December 2018 the
payments could not continue because of financial difficulties. The
plea of financial difficulty cannot change the rights of the
Petitioners. A party which has undertaken obligations under
registered agreements continues to be bound by those obligations
unless a valid arrangement changes them. No such arrangement
has been shown before the Court regarding the additional 72 sq.
ft. or the relief sought in prayer (a).

20.   There is another aspect which is required to be considered.
The Petitioners are not at this stage seeking an order for sale of




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the flats. They are not seeking a final money decree for the entire
amount claimed by them. Prayer (b) is for protecting the
properties. The purpose is to prevent the identified flats from
being transferred, encumbered or otherwise dealt with in a
manner which may make the rights claimed by the Petitioners
difficult to protect during the proceedings.

21.   If third-party rights are created in these flats, the dispute
may become more difficult. Persons who are not parties to the
present proceedings may acquire rights in the flats. The
Petitioners may then have to take proceedings against such
persons. Such a situation is required to be avoided when the
Petitioners have shown a basis for their claim and have identified
the particular properties for which protection is sought.

22.   I have considered the submission of the Respondents
regarding the allotment of Flat Nos. 901, 1002, 1503 and 1602.
Even if the allotment letters have been issued, that fact alone does
not show that the Respondents are free to create rights or
encumbrances in these flats contrary to the rights claimed by the
Petitioners under the Development Agreement and the registered
documents. The exact effect of each allotment can be considered
in the arbitration proceedings. For the present, it is necessary to
preserve the properties. The Petitioners have relied upon their
claim of Rs.6,01,98,113/-. At this stage, I am not recording a final
finding that the Petitioners are entitled to recover the entire
amount.    The        actual   amount      payable   will   depend    upon
examination      of     the    accounts,   the   obligations under       the



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agreements, the payments already made and the other material
relied upon by both sides. These issues can be examined in the
arbitration proceedings. However, merely because the amount
claimed by the Petitioners is disputed, the properties cannot be
allowed to be dealt with in such a manner that the claim of the
Petitioners may become ineffective. The Court is required to
preserve the subject matter of the dispute so that, if the
Petitioners succeed, the relief granted to them does not become
ineffective.

23.   On considering the material placed before me, I find that
the Petitioners have shown a basis for their claim regarding the
additional 72 sq. ft. carpet area. The Respondents have not shown
sufficient reason as to why the additional area, which according
to the Petitioners has already been constructed and provided,
should remain without being recorded in a registered document.
Therefore, the relief sought in prayer (a) deserves to be granted.

24.   I find that the four flats mentioned in prayer (b) require
protection during the pendency of the proceedings. The
injunction is confined only to the four flats mentioned in the
prayer. The Respondents are not restrained from dealing with any
other property in accordance with law. The order is limited to
what is necessary for protecting the rights claimed by the
Petitioners.

25.   The submission of the Respondents regarding the payments
made towards transit rent and the financial difficulties faced by




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Respondent No. 1 has been considered. These matters may have
relevance while deciding the final monetary liability of the
Respondents. However, they do not answer the claim of the
Petitioners regarding the additional carpet area. They do not give
sufficient reason to permit creation of third-party rights in the
four identified flats during the pendency of the proceedings.

26.   In view of the above discussion and the material placed
before the Court, I find that the Petitioners are entitled to the
reliefs sought in prayer clauses (a) and (b). Grant of these reliefs
does not finally decide all the monetary claims made by the
Petitioners. The rights and liabilities of the parties regarding the
disputed monetary claims will remain open for adjudication in
accordance with law. The relief granted at this stage is confined to
recording the additional carpet area and protecting the four
specified flats from dealing with or encumbrance.

27.   In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:

      (i)     Prayer Clause (a) is allowed. The Respondents and/or
      any person claiming through or under them shall execute an
      agreement in respect of the excess carpet area admeasuring
      72 sq. ft. in favour of each of the concerned members/Flat
      Owners and shall register the said agreement before the
      Registrar of Assurances.

      (ii) Prayer Clause (b) is allowed. Pending the hearing and
      final     disposal   of   the        arbitration   proceedings,     the



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Respondents and/or any person claiming through or under
them are restrained from dealing with, parting with
possession of, creating any third-party right, title or interest
in, alienating, transferring or encumbering, in any manner
whatsoever, Flat Nos. 901, 1002, 1602 and 1503 situated in
Pantnagar Indrayani CHS Ltd., Building No. 13, Pantnagar,
Ghatkopar (East), Mumbai 400 052.

(iii)     It is clarified that the observations made in the
judgment and the present order concerning the claim of
Rs.6,01,98,113/- and other monetary claims are only for
the purpose of deciding the present Petition. The final rights
and liabilities of the parties in respect of such monetary
claims shall be decided in the arbitration proceedings in
accordance with law.

(iv)    The present order shall not prevent the Respondents
from dealing with any property other than the four flats
referred to in clause (ii) above, in accordance with law.

(v)     The Arbitration Petition is accordingly disposed of in
the above terms.

(vi)    All contentions of the parties which are not decided
herein and which are required to be adjudicated by the
Arbitral Tribunal are kept open.

( vii) There shall be no order as to costs.


                                          (AMIT BORKAR, J.)



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