Kings Empire Heights Pvt. Ltd. v. Nilesh Laxmikant Kudalkar And Another

Arun

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION NO. 1 OF 2019 IN ARBITRATION PETITION NO. 268 OF 2019 Andand Dham Cooperative Housing Society Ltd ...Applicant In the matter between Kings Empire Heights Private Limited

...Petitioner

Versus

Nilesh Laxmikant Kudalkar And Anr

...Respondents

WITH NOTICE OF MOTION (L) NO. 261 OF 2019 IN ARBITRATION PETITION NO. 268 OF 2019 Mr Rajiv Narula, i/b Mehul Shah, for the Petitioner. Ms Tanmayee Rajyadhaksha, with Amit Karle, i/b Amit Karle, for the Applicant in IA/1/2019 and NMSL/261/2019.

Ms Shirin Shaikh, i/b Vivek Patil And Asso, for Respondent No. 2 in IA/1/2019 And NMSL/261/2019.

Mr Sagar Patil, for MCGM.

CORAM:

G.S. PATEL, J.

DATED:

PC:-

1.

I have briefy heard both sides. Parties agree that the order of 29th November 2018 disposing of the arbitration petition itself in accordance with Consent Terms tendered that date may be recalled and set aside, and the arbitration petition restored to fle. 2.

So ordered.

3.

The MCGM (which was not a party to the arbitration petition but against whom directions were issued) will not act under that order or the Consent Terms.

4.

A singular issue that arises is that in the arbitration petition itself I fnd no record of a vakalatnama on behalf of the contesting 2nd respondent (the present applicant in the notice of motion). Ms Rajadhyaksha on behalf of the applicant-2nd respondent society will need some time to obtain instructions and authority for a vakalatnama.

5.

Having regard to the nature of the controversy, I am making it clear that a vakalatnama signed merely or only by the managing committee members will not sufce in the facts and circumstances of this case. The society will call an Extraordinary or a Special General Body Meeting. In that meeting there will be only one agenda item, viz., to authorise persons of the General Body's choice to represent the society in the arbitration petition, in the arbitration proceedings and in all connected proceedings arising therefrom. That authority must be comprehensive and must include the authority to compromise or settle the disputes on such terms as the

nominated persons may deem ft. The choice of advocate is also left to the General Body.

6.

This has become necessary for I fnd that although on 29th November 2018 the 2nd respondent was represented by an advocate whose appearance was noted, there appears to be no vakalatnama fled by that advocate in the arbitration petition. The only vakalatnamas (and there are several) are in various interim proceedings, including a contempt petition, a chamber summons, the present notice of motion and interim applications. This is unacceptable. The advocate engaged by a party arrayed in a litigation must enter a vakalatnama in the main proceeding. A vakalatnama cannot be fled by a principal contestant only in some interim or interlocutory proceeding. There is no vakalatnama properly fled in the arbitration petition. . Therefore this order. 7.

All parties will maintain the present status quo, viz., the MCGM is not to issue any certifcates, irrespective of whether the petitioner-builder claims it is entitled to them or not, until the next date of hearing.

8.

All contentions are specifcally kept open.

9.

The present notice of motion and interim application will not survive since, by this order, I have restored the arbitration petition to fle.

10. List the arbitration petition itself, high on board, on 27th November 2019.

11. Ms Rajadhyaksha points out that the society by-laws require at least seven days' notice to call a meeting. The matter cannot be delayed. The Society is before me. It will act in accordance with this order, and on the strength of this order, the notice period will be curtailed. A copy of this order will be placed before the General Body. None will be heard to complain of insufcient notice, or notice not according to the rules, since the Special General Body meeting is not called by the society or its managing committee, but is required by the court.

(G. S. PATEL, J)