Bindu Raheja And Sons Llp vs Stephen Francis Coutts And Ors
- Court
- Bombay High Court
CNR No : HCBM020269332026
2026:BHC-OS:22713
carbpl26932-2026-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM ARBITRATION PETITION (L) NO.26932 OF 2026
Bindu Raheja & Sons LLP
… Applicant
Vs.
ATUL
GANESH
KULKARNI
1. Stephen Francis Coutts
Digitally signed
by ATUL GANESH
KULKARNI
Date: 2026.10.19
14:41:09 +0530
2. Lalita Mary Remedios
3. Virendra Coutts
4. Walter Coutts
5. Patrick Devindra Coutts
6. Eric H. Coutts
7. Clarence P. Coutts
8. Nalini Rebeiro
… Respondents
Mr. Hasmit Trivedi with Mr. Indra Kumar Lahoti i/by
Praxis Legal for the Applicant.
Mr. V. Mannadiar i/by Mannadiar & Co., for the
Respondents.
CORAM : AMIT BORKAR, J.
RESERVED ON : OCTOBER 14, 2026.
PRONOUNCED ON : OCTOBER 19, 2026
JUDGMENT:
1. I have considered the arguments made on behalf of the
Petitioner and the Respondents, along with the material referred to
in the Petition. The present Petition is filed under Section 9 of the
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Arbitration and Conciliation Act, 1996, in respect of the registered
Development Agreement dated 29 November 2024. The Petitioner
wants to protect its rights under this Agreement and prevent the
Respondents from creating difficulties in the redevelopment of the
property known as “Delana”, situated at Chembur, Mumbai.
2. The Respondents have opposed the Petition mainly on three
grounds. First, they say that no notice under Section 21 of the Act
was issued before filing the Petition. Second, they say that the
Petitioner has not shown any real intention to refer the disputes to
arbitration. Third, they contend that granting the reliefs asked for
would amount to giving the final relief at the interim stage.
3. The first objection of the Respondents is that the Petitioner
did not issue a notice under Section 21 of the Act before filing this
Petition. In my view, the Petition cannot be rejected as not
maintainable only because such notice was not issued before
approaching this Court. Section 9 of the Act allows a party to
approach the Court for interim protection even before the
arbitration proceedings have started. The Supreme Court in
Sundaram Finance Ltd. v. NEPC India Ltd. , (1999) 2 SCC 479, and
Firm Ashok Traders v. Gurumukh Das Saluja , (2004) 3 SCC 155,
has explained that arbitration need not be pending and that a
notice invoking arbitration need not always be issued before filing
a Petition under Section 9. What is necessary is that there should
be a valid arbitration agreement and that the party approaching
the Court should genuinely intend to refer the disputes to
arbitration. Therefore, the absence of a notice under Section 21,,
cannot be a ground to reject this Petition. At the same time, the
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objection of the Respondents cannot be ignored merely because
the law allows a party to file a Section 9 Petition before arbitration
begins. The Petitioner must show that it genuinely wants to refer
the disputes to arbitration and has not approached the Court only
to obtain interim orders without taking any further steps towards
arbitration. Section 9 is intended to protect the subject matter of
the dispute and to ensure that the arbitration remains effective. It
cannot be used as a permanent remedy in place of arbitration.
4. The second objection of the Respondents is that the
Petitioner has not shown any real intention to refer the disputes to
arbitration. In paragraph 61 of the Petition, the Petitioner has
stated:
“The Petitioner submits that the dispute/s between the
parties may be referred to Arbitration at an appropriate
stage. In such arbitration the Petitioner shall inter alia pray
for specific performance of the said Development
Agreement.”
5. The words “may be referred to Arbitration at an appropriate
stage” do not clearly show that the Petitioner intends to start
arbitration immediately. The Petitioner has not clearly stated when
it proposes to take the necessary steps. Therefore, the Respondents
have some basis for saying that the intention to arbitrate must be
genuine and should not remain merely a statement made in the
Petition. However, this sentence cannot be read without
considering the other statements in the Petition. In the same
paragraph, the Petitioner has stated that it will seek specific
performance of the Development Agreement in arbitration. Clause
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85 of the Agreement contains an arbitration clause. The Petition
has been filed because disputes have arisen regarding the
performance of the Agreement and the alleged breach of its terms.
The Petitioner is seeking protection of its rights under the
Agreement and has stated that the main relief of specific
performance will be sought before the arbitral tribunal.
6. In these circumstances, I am not inclined to reject the
Petition at the beginning on the ground that the Petitioner has no
intention to arbitrate. The Petitioner has shown that a dispute has
arisen which can be referred to arbitration under Clause 85.
However, the intention stated in paragraph 61 must now be acted
upon. The Petitioner cannot obtain interim protection from the
Court and then continue postponing arbitration indefinitely by
saying that it will start arbitration at an appropriate stage. Section
9(2) of the Act provides that, where interim measures are granted
before the arbitration proceedings begin, the arbitral proceedings
must commence within ninety days from the date of the order, or
within such further time as the Court may allow. Therefore, if
interim protection is granted before arbitration begins, the
Petitioner must be directed to take the necessary steps to
commence arbitration within the period permitted by law.
7. I now turn to the dispute between the parties and the terms
of the Development Agreement. The Petitioner relies upon the
registered Development Agreement dated 29 November 2024.
Under Clause 6, the Petitioner was given the right to redevelop the
land and the existing building. Clause 11 provides that the
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Respondents would receive eight flats, each having a carpet area of
600 square feet, along with four car parking spaces in the new
building. The same clause provides that the Petitioner would settle
the claims of the non-consenting members at its own cost. Clause
125 states that the Development Agreement would replace the
earlier understandings, writings, and agreements between the
parties. Clause 128 provides that the Agreement contains the
entire understanding between the parties regarding the
development. Clause 129 further states that the Respondents
would not be entitled to monthly compensation, shifting charges, a
security deposit or a corpus fund. At this stage, the registered
Development Agreement is an important document for considering
the Petitioner's case. According to the Petition, the parties
discussed and negotiated the terms over a period of time,
exchanged correspondence, executed an earlier notarised
agreement and thereafter entered into the registered Development
Agreement. Paragraph 23 of the Petition refers to a letter dated 29
November 2024 addressed by the Respondents to the Society.
Through this letter, the Respondents informed the Society about
the important terms of the proposed redevelopment. The Petitioner
states that the letter mentioned that the Respondents would
together receive 4,800 square feet in the redeveloped project. This
area is equal to eight flats of 600 square feet each, as stated in
Clause 11. At this stage, the letter supports the Petitioner's case
that the area to be given to the Respondents was recorded after
negotiations and was not added later by the Petitioner on its own.
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8. The case of the Respondents, as understood from the
submissions made before me, is that the Development Agreement
does not correctly record the commercial understanding between
the parties and that granting the reliefs would amount to giving
final relief at the interim stage. The Petition refers to emails dated
6 and 7 November 2025, in which Respondent No. 1 is stated to
have questioned the terms of the Agreement and claimed that the
Petitioner had agreed to provide flats of 900 square feet each. The
Petitioner denies having given any such assurance. It relies on the
registered Agreement and says that the Respondents are now
asking for benefits beyond what was agreed. At this stage, this
Court is not required to finally decide whether any oral assurance
was given during the negotiations or whether the parties had
arrived at a different commercial understanding. If such disputes
arise under the arbitration agreement, they will have to be decided
by the arbitral tribunal after considering the evidence produced by
both sides. However, for the limited purpose of deciding this
Petition under Section 9, the registered Agreement, when read
with the letter dated 29 November 2024, supports the Petitioner's
case that the entitlement of the Respondents was recorded in
writing.
9. The Petitioner has relied upon the steps taken, and the
money spent after the Development Agreement was executed.
Paragraphs 25 to 30 of the Petition refer to settlements concerning
Flat Nos. 4, 5, 6 and 9 and the arrangements relating to Flat Nos. 7
and 8. The Petitioner states that it paid Rs.2.75 crore for Flat No.
5, Rs.3.13 crore for Flat No. 6, Rs.1.55 crore for Flat No. 4 and one
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garage, and Rs.2.50 crore for Flat No. 9. According to the Petition,
the necessary documents were executed and possession of these
premises was handed over to the Petitioner. The Petitioner has
referred to the arrangements made in respect of Flat No. 3 with
Christine Marian Dias, including the consent terms dated 18 June
2026 and the payments made towards her temporary alternate
accommodation. It has further stated that it paid more than Rs.13
lakh to Shawn Monteiro and is continuing to pay monthly
compensation under the relevant agreements. In paragraph 38 of
the Petition, the Petitioner states that it has invested more than
Rs.15 crore in the redevelopment project. This is a substantial
amount. However, merely stating that money has been spent does
not prove the entire case of the Petitioner or establish that the
Respondents have committed a breach of the Agreement. The
amount spent will have to be considered along with the
agreements, payment records and other evidence. Even so, at this
interim stage, the Petition refers to transfer documents, possession
of several premises, arrangements for alternate accommodation
and permissions obtained from the Society and the Municipal
Corporation. These circumstances show, at least prima facie, that
the Petitioner has acted on the basis of the Development
Agreement and that the dispute arose after considerable steps had
been taken towards redevelopment. This is an important factor
while deciding whether the Petitioner should receive protection
until the arbitration takes place.
10. The Petitioner relies upon Clause 85 of the Development
Agreement. The relevant portion, as reproduced in paragraph 52
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of the Petition, reads:
“The Developer shall not stall the work of construction nor
shall the Developer be called upon to stall the construction of
the Proposed Building in any such Arbitral Proceedings for
any dispute that arises in the circumstances and covenants as
agreed herein between the parties.”
11. The clause further states:
“It is further clarified that the Developer may stall the
construction of the Proposed Building upon receiving any
claim pertaining to the title to the said Residential Property.”
12. These terms are important for deciding the present dispute.
It appears that the parties had expected that disputes might arise
during redevelopment and had agreed that ordinary disputes
arising under the Development Agreement should not, by
themselves, stop the construction work. An exception was made
where a claim relating to the title of the residential property is
raised. The Petitioner relies on this clause to argue that the
Respondents cannot stop the redevelopment merely because they
are now asking for different benefits under the Agreement. From
the material placed before me, the dispute about the size of the
flats and additional benefits is not shown to be a dispute relating
to title. Therefore, this clause supports the Petitioner's request that
redevelopment should not be stopped merely because the parties
have a dispute regarding their contractual rights.
13. The next question is whether the Respondents have, as
alleged by the Petitioner, created obstruction to the
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redevelopment. In paragraphs 32 to 35 of the Petition, the
Petitioner refers to a communication dated 17 December 2025
addressed by the Respondents to the Society, asking the Society to
withhold further permissions required for redevelopment. The
Petitioner states that the Respondents had explained that this
communication was issued because of the dispute between the
Petitioner and Christine Marian Dias. They had assured the
Petitioner that the communication would be withdrawn after that
dispute was settled. The Petitioner further states that the dispute
with Christine Dias was later resolved, but the communication was
not withdrawn. According to paragraphs 44 to 46 of the Petition,
the Society subsequently informed the Petitioner that the final
NOC was being held up because of the communication dated 17
December 2025. The meeting held at the Society's office on 17
July 2026 did not resolve the matter. As described in the Petition,
the minutes recorded that the parties would try to settle the
disputes amicably, but the Respondents had not taken a final
decision about withdrawing their communication. These
allegations are important because the Petitioner is not seeking
interim relief only because the Respondents have asked for larger
flats. Its case is that the Respondents sent a communication to the
Society which resulted in the final NOC required for the next stage
of redevelopment being withheld. The Petitioner has relied upon
the legal notice dated 16 July 2026, which, according to it,
demands eight flats of about 1,000 square feet each and two
garages or parking spaces for every flat. The Petitioner replied to
that notice on 1 August 2026 and stated that the Respondents
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were trying to renegotiate an Agreement which was binding on
them. When these events are considered together, they provide
prima facie support to the Petitioner's case that the dispute is not
only about how the Agreement should be understood, but has
affected the progress of redevelopment.
14. I am conscious that the allegations made by the Petitioner
have not yet been finally decided. This order should not be
understood to mean that every communication sent by the
Respondents to the Society was unlawful. The Respondents cannot
be prevented from raising a genuine issue concerning their legal
rights. Similarly, the Society cannot be compelled to grant an
approval which it is not legally required to grant. However, when a
registered Development Agreement is in force and the parties have
agreed to resolve their disputes through arbitration, one party
cannot use correspondence with the Society merely to force the
other party to accept fresh commercial terms. Therefore, interim
protection must be granted in a limited manner so that the agreed
redevelopment is not obstructed, while both sides remain free to
place their claims before the arbitral tribunal.
15. The Respondents have argued that the reliefs sought by the
Petitioner would amount to granting final relief at the interim
stage. This objection needs careful consideration. Section 9 is
intended to provide temporary protection to the rights in dispute
and to prevent the arbitration or the final award from becoming
ineffective. In ArcelorMittal Nippon Steel India Ltd. v. Essar Bulk
Terminal Ltd. , (2022) 1 SCC 712, the Supreme Court explained
that interim relief is granted to support the final relief, so that the
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arbitration does not become useless and the final award does not
remain only a paper order. The Court explained that the usual
considerations are whether the applicant has a prima facie case,
whether the balance of convenience is in its favour and whether
refusal of relief would cause irreparable injury.
16. The reliefs claimed in paragraph 69 of the Petition are not all
of the same kind. Prayer clauses (a), (c) and (d) seek to prevent
obstruction, creation of third-party rights and further
correspondence which may stop the redevelopment. If these reliefs
are properly limited, they are protective in nature. Their purpose is
to ensure that the project is not frustrated before the disputes are
decided in arbitration. Prayer clause (b), which asks the Court to
direct the Respondents to cooperate, requires more care. A
direction to cooperate cannot mean that the Respondents must
accept every step which the Petitioner may propose, without any
question. Such cooperation can be directed only in relation to the
steps required under the Development Agreement and subject to
the permissions required under law. The Respondents will still
have the right to raise their contractual claims before the arbitral
tribunal.
17. Prayer clause (e) is different from the other reliefs. It asks
the Court to direct the Respondents to withdraw their
communication dated 17 December 2025 so that the Society may
issue the final NOC. A direction to withdraw an existing
communication is a mandatory interim order because it requires
the Respondents to take a positive step. Its effect is stronger than
an ordinary order which only restrains a future act. Therefore, the
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Court must be careful before granting such relief. In Dorab Cawasji
Warden v. Coomi Sorab Warden , (1990) 2 SCC 117, the Supreme
Court held that an interim mandatory injunction ordinarily
requires a stronger case than an ordinary prohibitory injunction.
The Court must consider whether the applicant has a strong case
for trial, whether the relief is necessary to prevent serious or
irreparable injury, and whether the balance of convenience
supports granting it. Applying these principles, the present case is
not one in which the Petitioner is asking the Court to compel the
Respondents to perform the entire Development Agreement at the
interim stage or to finally decide what area of flats they are
entitled to receive. The immediate grievance concerns the
continued effect of the communication dated 17 December 2025,
which, according to the Petitioner, is holding up the final NOC. The
Petitioner states that the Respondents had earlier assured that this
communication would be withdrawn after the dispute with
Christine Dias was settled. That dispute was later resolved through
consent terms dated 18 June 2026. However, according to the
Petition, the communication continued to remain in place and
affected the progress of the project. The registered Agreement and
the events which followed provide a sufficient basis, for the limited
purpose of interim protection, to prevent the communication from
being used to stop redevelopment merely to obtain additional
contractual benefits. Still, the direction must be limited to
removing this particular obstacle and must not be treated as a final
decision on any disputed contractual claim.
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18. For these reasons, I am unable to accept the Respondents'
argument that every relief sought by the Petitioner would
necessarily amount to granting final relief. An order preventing
obstruction, protecting the property and requiring the parties to
act according to their existing Agreement does not, only because of
that reason, finally decide the Petitioner's claim for specific
performance. At the same time, the Court cannot grant relief in
such wide terms that all the rights and obligations of the parties
are decided before the arbitral tribunal considers them. The
direction relating to the communication dated 17 December 2025
must be understood only as a temporary measure to prevent the
redevelopment from being stopped because of the demands which
are in dispute. Whether the Respondents are entitled to additional
area, parking spaces or other benefits will remain open for
decision in arbitration.
19. The balance of convenience must be considered. The Petition
states that the Petitioner has settled the claims of several
occupants, taken possession of certain flats, made payments
towards alternate accommodation and obtained provisional
permission from the Society and an Intimation of Disapproval from
the Municipal Corporation. These steps affect not only the
Petitioner and the Respondents, but the occupants and other
persons whose arrangements are connected with the
redevelopment. If the project remains stopped because of the
communication in question, the delay may affect the commitments
made by the Petitioner towards those persons. On the other hand,
the Respondents can pursue their claim about the correct meaning
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of the Development Agreement before the arbitral tribunal.
Granting limited protection to the redevelopment will not take
away their right to pursue that claim. On the material available,
the balance of convenience is in favour of preventing obstruction
which is not based on a title dispute or a lawful requirement.
20. The question of irreparable injury is connected with these
circumstances. The Petitioner says that further delay would affect
the construction schedule, the rights, and expectations of the
occupants and the further permissions required for redevelopment.
The money spent by the Petitioner is a relevant factor, although
expenditure alone is not enough to establish irreparable injury. The
more important point is that redevelopment involves several
connected steps, including possession, alternate accommodation,
approvals and construction of the new building. If the required
permissions remain withheld for an indefinite period, the
consequences may be more serious than a simple claim for money.
Even if the Petitioner succeeds in arbitration, it may become
difficult to bring the parties and other persons connected with the
project back to the same position. I am satisfied that limited
interim protection is necessary to ensure that the arbitration
remains effective and meaningful.
21. I find that the prayer seeking to restrain the Respondents
from creating third-party rights cannot be understood so widely
that it prevents the redevelopment or stops the Petitioner from
taking lawful steps under the Development Agreement. The
Petitioner wants to prevent the Respondents from creating rights
which may make it more difficult to deal with the land or the
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subject-matter of the dispute during arbitration. Such protection is
justified, but it must be limited to acts by the Respondents which
are inconsistent with the Development Agreement or may affect
the subject matter of the dispute. The order should not prevent the
Petitioner from carrying out redevelopment according to the
Agreement and the permissions granted by the competent
authorities. At the same time, the rights of the Society, including its
power to consider and grant permissions, cannot be taken away by
an order passed in a Petition in which the Society is not shown as a
Respondent.
22. Having considered all these circumstances, I find that the
registered Development Agreement contains an arbitration clause
and that the Petition discloses a genuine dispute regarding the
performance of the Agreement. The Petition cannot be dismissed
only because a notice under Section 21 was not issued before filing
it. The material in the Petition gives a sufficient basis to conclude
that the Petitioner intends to seek specific performance in
arbitration, although the intention stated in paragraph 61 must
now be acted upon within the period allowed by law. The
Petitioner has made out a prima facie case for protection against
obstruction to redevelopment. The balance of convenience
supports granting limited protection, and refusal of such protection
may cause harm which cannot be adequately compensated only by
awarding damages in the future. The Respondents' objection that
the reliefs are final in nature has some force to the extent that each
relief must be carefully limited. However, this objection does not
require the Court to refuse all interim protection.
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23. For these reasons, I find that the Petition deserves to be
allowed in part, subject to the safeguards stated below.
24. The interim order will not decide whether the Respondents
are entitled to larger carpet areas, additional parking spaces or any
other benefits beyond what is stated in the Development
Agreement. These questions will remain open for arbitration. The
Petitioner must now take clear and timely steps to commence
arbitration. The interim protection will remain subject to Section
9(2) of the Act and any suitable order which may be passed by the
arbitral tribunal under Section 17.
25. The Commercial Arbitration Petition is allowed in part in the
following terms:
(i) Until the arbitral proceedings commence and continue,
the Respondents are restrained from obstructing the
redevelopment of the property under the registered
Development Agreement dated 29 November 2024, except
by pursuing remedies available to them in accordance with
law;
(ii) The Respondents shall cooperate in taking the steps
required from them under the Development Agreement,
subject to the terms of the Agreement and the permissions
required from the Society and the competent authorities;
(iii) The Respondents shall not create third-party rights in
respect of the land or their leasehold rights in any manner
which is inconsistent with the Development Agreement or
may affect the subject matter of the arbitration. This
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direction shall not prevent the Petitioner from carrying out
redevelopment in accordance with the Agreement and the
applicable permissions;
(iv) The Respondents are restrained from sending
communications to the Society for the purpose of stopping
the redevelopment or forcing the Petitioner to renegotiate
the Development Agreement. However, this shall not prevent
them from sending a genuine communication required to
protect a lawful right or to raise an issue which the Society
or a competent authority is required to consider;
(v) Within seven days from the date of this order, the
Respondents shall withdraw their communication dated 17
December 2025, to the extent that it asks the Society to
withhold further permissions merely because of the
contractual disputes between the parties. Such withdrawal
shall not prevent the Respondents from raising their claims
in arbitration. No direction is issued to the Society to grant
the final NOC, as the Society must take its decision according
to its rules and the applicable law;
(vi) The Petitioner shall invoke the arbitration agreement
by issuing a notice under Section 21 of the Arbitration and
Conciliation Act, 1996, within fourteen days from the date of
this order. The Petitioner shall take the necessary steps to
commence arbitration within the period provided under
Section 9(2) of the Act;
(vii) The interim measures granted above shall remain in
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force for ninety days from the date of this order, subject to
the Petitioner commencing arbitration within that period.
After the arbitral tribunal is constituted, either party will be
free to seek suitable interim measures under Section 17 of
the Act. The parties may seek further appropriate directions
regarding continuation of protection until the tribunal
considers such an application;
26. All the observations made in this order are only prima facie
observations for deciding the present Petition. The arbitral tribunal
shall decide the disputes independently, on the basis of the
evidence and submissions placed before it, without being
influenced by these observations.
27. The Arbitration Petition stands disposed off in above terms.
There shall be no order as to costs.
28. At the time of pronouncement of Judgment, it is informed
that after the matter was fixed for judgment, the Respondents
terminated Petitioner’s agreement. Therefore, it shall be open for
the Petitioner to take out appropriate proceedings for appropriate
reliefs.
(AMIT BORKAR, J.)
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