M/S Gcd Prime vs Dcm Limited
- Court
- Delhi High Court
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 19.03.2026
Judgment pronounced on: 28.07.2026
+ O.M.P.(I) (COMM.) 472/2025
M/S GCD PRIME .... Petitioner
Through: Mr. Ravindra Shrivastava, Sr. Adv.,
Manish Sharma, Sr. Adv. with Mr.
Abhishek Sharma, Mr. Tarun
Bhagchandani, Mr. Adya Rao,
Advs.
versus
DCM LIMITED .... Respondent
Through: Mr. Rajiv Nayar, Sr. Adv. with Mr.
Karun Mehta, Ms. Pratiksha Mishra,
Mr. Ambuj Sachan, Ms. Manjira
Dasgupta, Advs.
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
J U D G M E N T
1. By way of this petition filed under Section 9 of the Arbitration and
Conciliation Act, 1996 (“the Act”) , the petitioner has approached this
Court seeking interim directions, including, inter alia, a stay on the
effect and operation of notice dated 31.10.2025 (“impugned notice”) ,
along with other reliefs which read as under:
“a. Issue interim and ad-interim directions to stay / restrain
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SRIVASTAVA
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the operation of Said Notice dated 31.10.2025 issued by the
Respondent to the Petitioner and to restrain the Respondent
and/ or their agents/ representatives/ servants/ employees or
anyone acting for and on behalf of them, from taking any
steps in furtherance to the said notice, which may in any
manner prejudice the rights of the Petitioner on the Said
Land under the Term Sheet and the Joint Development
Agreement till the pendency of the present petition.
b. Issue interim and ad-interim directions to restrain the
Respondent and/ or their agents/ representatives/ servants/
employees or anyone acting for and on behalf of them, or
claiming under or through them, from acting in any manner
interfering with the Petitioner‟s legal rights on the Said
Land and/ or selling/ conveying / transferring / assigning /
mortgaging / alienating / creating any third-party interest
or rights whatsoever on the Said Land or any part thereof
or on the rights/entitlements/ interest of the Petitioner on
the Said Land, or from otherwise disturbing in any manner
the present status of the Said Land, till the pendency of/the
present petition;
c. Direct the Respondent to maintain status quo with respect
to the ownership, possession, title, rights, and development
of the Said Land and not to create any third-party rights,
interest, encumbrance, charge, license, development rights
or concessions of any nature over the Said Land;
d. Direct the parties to maintain status quo with respect to
Signed By:ANSH
SRIVASTAVA
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the terms and performance of the Joint Development
Agreement dated 11.08.2022, until the conclusion of the
Arbitration proceedings by the Arbitral Tribunal. …”
FACTUAL BACKGROUND AS PER THE PETITIONER
2. The petitioner namely, M/s GCD Prime is a registered partnership firm
having its registered office at Basement, Villa No. MAR-BL-040,
Marbella, Sector-65/66, Gurugram, Haryana-122008 and undertakes
real estate development business (also referred to as “GCD”).
3. The respondent i.e., DCM Limited is a company incorporated in India
and having its registered office at Unit No. 2050 to 2052, 2nd Floor,
Plaza-II, Central Square, 20, Manohar Lal Marg, Bara Hindu Rao,
Delhi, engaged in the business of real estate (also referred to as
“DCM”), and owning land admeasuring approximately 68.35 acres,
situated at Village Bir, Sector-23, Hisar, Haryana (“subject land”) .
4. The respondent, in 2022, being desirous of developing the subject land
under the Deen Dayal Jan Awas Yojana-2016 (“DDJAY”) and owing
to its inability to do the same solely by itself, approached the petitioner
firm for the proposed development and construction.
5. Accordingly, a term sheet dated 18.05.2022 was executed between the
petitioner and the respondent, wherein the respondent (land owner)
agreed to contribute land and petitioner undertook an obligation to
develop, construct and market the project at its own cost.
6. Pursuant thereto, a detailed joint development agreement (“JDA”) was
executed between the parties on 11.08.2022 (registered on 24.08.2022),
wherein the respective obligations of the parties, revenue sharing
mechanism and dispute resolution mechanism were set out.
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SRIVASTAVA
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7. The JDA has vested the petitioner with substantial rights qua the
subject land including the authority to design, develop, construct,
market, and sell units or plots, along with entitlement to retain 45% of
the net sales revenue, thereby creating a distinct asset in the form of a
composite bundle of development rights conferred by the respondent.
8. Pursuant thereto, the petitioner paid Rs. 50 crores in advance and took
active measures in order to obtain license from the Directorate of Town
and Country Planning, Haryana (“DTCP”), and duly obtained a letter
of intent dated 18.08.2022 and the process culminated with issue of
license bearing No. 179 dated 07.11.2022 for setting up affordable
residential plotted colony under the DDJAY scheme on 67.275 acres of
the subject land.
9. After the execution of JDA, the petitioner states that it has incurred
expenses and has started performing its obligations as per the JDA, and
the details of the expenses incurred read as under:
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SRIVASTAVA
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SRIVASTAVA
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10. However, vide order dated 18.04.2023, the Director General, Town and
Country Planning, suspended the aforesaid license on account of an
enquiry initiated against the respondent regarding alleged unauthorized
sale of land and illegal change of use of land as the land was allotted
solely for the purpose of development of a mill. By the said order, all
development activities were directed to be ceased and the creation of
third-party rights were prohibited.
11. Since then, DCM made several representations against the said
suspension of the license and the proceedings qua the suspension are
pending before the relevant authorities.
12. Meanwhile, since the project was at a standstill, on 22.09.2025, the
respondent served a notice to the petitioner alleging “events of default”
on part of the petitioner under the JDA in ensuring validity of license
and sought rectification within 30 days.
13. Consequently, impugned notice dated 31.10.2025 of forfeiture and
termination was issued under Clause No. 11.3 of the JDA providing
that the rights of the petitioner arising out of/under the JDA will stand
forfeited upon the expiry of 15 days from the receipt of the said notice,
and the JDA shall stand terminated. Hence, the present petition.
INTERVENING EVENTS
14. The present petition under Section 9 of the Act was filed on 10.11.2025
and the arguments pursuant thereto were heard in length and substance.
15. Consequently, vide Order dated 19.03.2026 the judgement was
reserved in the present matter and the undertaking of Mr. Nayar,
learned senior counsel for the respondent, recorded in the Order dated
14.11.2025 (i.e., no precipitative action shall be taken pursuant to the
Signed By:ANSH
SRIVASTAVA
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impugned notice dated 31.10.2025) was continued till the
pronouncement of the judgement.
16. During the course of hearing, a notice dated 18.03.2026 was issued
under Section 21 of the Act invoking Arbitration agreement between
the parties contained under Clause No. 14 of the JDA. Accordingly,
Hon‟ble Mr. Justice (Retd.) Badar Durrez Ahmed was appointed as the
Sole Arbitrator to adjudicate the disputes between the parties.
17. Pursuant thereto, the petitioner filed an application bearing I.A. No.
13220/2026 seeking conversion of this petition to an application under
Section 17 of the Act, to be adjudicated by the Sole Arbitrator.
18. Since, the Court after hearing the learned Senior Counsels over a
number of days, had already reserved the judgment, I.A. NO. 13220/26
was dismissed on 08.07.2026.
SUBMISSIONS ON BEHALF OF THE PETITIONER
19. At the outset, Mr. Shrivastava and Mr. Sharma, learned senior counsels
for the petitioner, submit that the petitioner has performed all of its
obligations arising out of the JDA and is not in breach of any of them.
20. The petitioner has complied with all the terms and conditions of the
JDA and more particularly those provided under Clause Nos. 2.1 and
4.4 and it is duly admitted by the respondent in the notice dated
22.09.2025. Hence, there is no breach.
21. It is further submitted that there is no right of termination under Clause
No. 11 of the JDA and no event has happened which can be construed
as conferring such a right on the respondent. In any case, the right to
terminate is not an absolute or unilateral right.
Signed By:ANSH
SRIVASTAVA
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22. There is no “GCD event of default” inasmuch as the JDA only
contemplated the obligation of the petitioner to obtain the license and
relevant approvals but did not include within its ambit, the
reinstatement when the same had been suspended by the statutory
authorities.
23. The respondent is contesting the suspension order issued by the
Director General, DTCP, Haryana, and is also challenging the findings
of the High-Level committee. The license was suspended due to the
allegations of illegal sale of land, change in use and non-disclosure, and
not due to any acts attributable to the petitioner.
24. Even though from the pleadings of the respondent, it seems to be under
a misconception that it was the obligation of the petitioner to get the
order of the suspension revoked, the obligations in the JDA did not and
cannot be construed to contain an obligation that it would be the
petitioner who would be responsible for the reinstatement of a
suspended license.
25. They also submit that the petitioner has a prima facie case with balance
of convenience leaning in its favour and will suffer irreparable injury in
absence of any interim relief.
26. The petitioner has already incurred expenditures and made investments
pursuant to the JDA and the termination of the same at this juncture
would result in unjust enrichment.
27. The impugned notice of termination, in effect, deprives the petitioner of
its vested legal rights in the subject land. Reliance is placed on notice
dated 22.09.2025 and Clause No. 1.1.16 of the JDA.
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SRIVASTAVA
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28. They also submit that the JDA is in its nature not a determinable
contract as Clause No. 12 of JDA stipulates that the agreement is
irrevocable except otherwise provided. Reliance is placed on paragraph
No. 64 of K.S. Manjunath v. Moorasavirappa Muttanna Chennappa
1 2
Batil , and A. Murugan and Ors. v. Rainbow Foundation Ltd. & Ors.
29. Clause No. 14.9 of the JDA contains a stipulation to the effect that
when any dispute is pending between the parties, the parties will
continue to perform their respective obligations. Reliance is also placed
on Innovative Facility Solutions (P) Ltd. v. Affordable Infrastructure &
3
Housing Projects (P) Ltd.
30. The respondent has also failed to establish/explain that any interim
measure in the present petition would lead to delay or create
impediment in fulfilment of infrastructure project. Thus, the ingredients
of Section 20A of the Specific Relief Act, 1963 (“SRA”) are not
satisfied.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
31. At the outset, Mr. Nayar, learned senior counsel on behalf of the
respondent, submits that the petitioner has not established the elements
of Section 9 of the Act entitling it to interim relief.
32. The scope of JDA and the Term sheet were clear and it included the
obligation of the petitioner to procure and maintain all necessary
approvals and licenses. Reliance is placed on Clause No. 4.4.1 of JDA
and Clause No. 2 of the Term sheet.
1
2025 SCC OnLine SC 2378.
2
2019 SCC OnLine Mad 37961.
3
2024 SCC OnLine Del 7542.
Signed By:ANSH
SRIVASTAVA
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33. The petitioner has undertaken due diligence qua the subject land and
the obligation to develop it was undertaken strictly on “as is where is”
basis when the land was found suitable for development under the
DDJAY policy. The same is recorded under the Recital E of the Term
Sheet and Recital F and Clause No. 9.8 of the JDA.
34. He also submits that the contents of the conveyance deed and the fact
of sale of part of land parcel of 400 acres to DCM Nouvelle Ltd. was
within the petitioner‟s knowledge, and the petitioner, of its own
volition decided that no separate approval under Clause No. 7 of the
conveyance deed was required and proceeded to seek approval from
DTCP without even raising any issue at any instance prior to seeking
approval.
35. The order of suspension dated 18.04.2023, issued by DTCP is premised
on the ground of non-disclosure of information, however, it is the
petitioner who had applied for the said license and non-disclosure, if
any, is attributable only to the petitioner. Thus, the same has resulted in
failure of petitioner to fulfil its obligations under Clause No. 4.4.1 of
the JDA.
36. The petitioner‟s stand that it bears no responsibility for reinstatement of
the suspended license is wrong and the same cannot be attributed to the
respondent as the petitioner has contracted to develop the subject land
on “as as is where is” basis. The petitioner did not file the application
for conversion.
37. It is further submitted by Mr. Nayar, learned senior counsel, that the
JDA is in essence a construction contract wherein the petitioner‟s rights
are limited for the purpose of development of the subject land under the
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SRIVASTAVA
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DDJAY policy. The petitioner was entitled only to 45% of net sale
revenue and not ownership of any part of the land. Thus, there cannot
be any specific performance of the JDA.
38. The petitioner as per its obligation has not been able to get
reinstatement of the suspended license.
39. Additionally, the balance of convenience in the present case leans in
favour of the respondent as the possession of the subject land remains
with the respondent and the right of the petitioner was limited only to
the extent of developing the subject land, which had only been carried
out to the extent of construction of boundary wall.
40. In any event, the appropriate remedy against the termination would be
to seek damages and if the effect of impugned notice is stayed it would
deprive the respondent of fructus of its land.
41. He also states that JDA is a contract in its nature determinable and the
same cannot be enforced under Section 14(d) of the SRA. Reliance is
placed on Clause No. 11 to state that in the event of a default, 30 days
period to cure the deficiencies was to be given and on failure to cure,
the amount could be forfeited and the contract could be terminated.
42. The termination clause (Clause No. 11.3) not only confers a unilateral
right to declare an event as default but also makes the decision final
and binding. Thus, the right to determine the contract is vested with the
respondent in the present JDA.
43. It is further submitted that the nature of the relief claimed by the
petitioner by way of the present petition under Section 9 of the Act is
such that the petitioner is seeking specific performance of its rights
under the JDA.
Signed By:ANSH
SRIVASTAVA
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44. It is a settled position that directions under Section 9 of the Act can
only be issued for the very specific purpose of preserving the subject
matter of the dispute and not to direct specific performance. At best,
damages for monetary loss can be claimed by the petitioner which
forms a dispute to be adjudicated by the Arbitral Tribunal.
45. Additionally, no injunction restraining the respondent from continuing
with the development of this infrastructure project can be granted as the
same is barred by Section 41 (ha) of the SRA.
ANALYSIS AND FINDINGS
46. I have heard learned senior counsels for the parties at length and
perused the documents available on record.
SCOPE OF SECTION 9 OF THE ACT
47. The law governing grant of interim reliefs under Section 9 of the Act is
no longer res integra, and its scope has been succinctly explained by
the Hon‟ble Supreme Court in the judgment of Arcelormittal Nippon
4
Steel (India) Ltd. v. Essar Bulk Terminal Ltd. , the relevant
paragraphs of which read as under:
“88. Applications for interim relief are inherently
applications which are required to be disposed of urgently.
Interim relief is granted in aid of final relief. The object is to
ensure protection of the property being the subject-matter of
arbitration and/or otherwise ensure that the arbitration
proceedings do not become infructuous and the arbitral
award does not become an award on paper, of no real
value.
4
(2022) 1 SCC 712.
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SRIVASTAVA
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89. The principles for grant of interim relief are (i) good
prima facie case, (ii) balance of convenience in favour of
grant of interim relief and (iii) irreparable injury or loss to
the applicant for interim relief. Unless applications for
interim measures are decided expeditiously, irreparable
injury or prejudice may be caused to the party seeking
interim relief.
90. It could, therefore, never have been the legislative intent
that even after an application under Section 9 is finally
heard, relief would have to be declined and the parties be
remitted to their remedy under Section 17.”
(Emphasis Supplied)
48. The foundational precept of Section 9 of the Act is undoubtedly the
need for preservation/protection of the subject matter of the dispute
between the parties, so that the Arbitral exercise between the parties is
not rendered otiose.
49. The principles governing interim relief under Section 9 of the Act are
similar to principles governing grant of temporary injunctions under
Order XXXIX of the Civil Procedure Code, 1908, which encapsulates a
three-prong test within its framework, wherein the Court is only
required to satisfy itself as to existence of a good prima facie case in
favour of the applicant, balance of convenience in favour of interim
relief and risk of irreparable injury/loss to the applicant.
50. With the aforesaid position of law in mind, I shall now deal with the
rival contentions.
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SRIVASTAVA
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PRELIMINARY ISSUE QUA PRAYER CLAUSE „A‟ AND „D‟
51. The petitioner under prayer Clause „A‟ and „D‟ of the present petition
has sought directions to restrain the operation of the impugned notice
dated 31.10.2025 and to maintain status quo with regard to the terms
and performance of the JDA, along with consequential reliefs flowing
therefrom.
52. The nature of relief sought by way of the aforesaid prayers is not in the
nature of seeking interim directions, it is in substance, seeking
enforcement of the contractual obligations under the JDA and
effectively specific performance of the JDA. If I were to agree with the
petitioner‟s contentions and grant prayer „A‟ i.e., a stay on impugned
notice and restrain the respondent from acting upon it, the same would
amount to continuing and enforcing the JDA, which has already been
terminated by the respondent.
53. While adjudicating a matter for grant of interim directions under
Section 9 of the Act, I am confined by the limitations of this
jurisdiction, which does not permit me to grant a relief which is in
nature of specific performance/enforcement of the contract itself unless
the same is required to preserve/protect the subject matter of the
Arbitration. A Coordinate Bench of this Court in the judgment of Ariat
5
International Inc. v. Sunglass Palace India (P) Ltd. , has already
made categorical observations with regards to the object of Section 9 of
the Act and the relevant paragraphs of the same read as under:
5
2025 SCC OnLine Del 9488.
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SRIVASTAVA
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“15. The legal position with respect to Section 9 of the Act
remains undisputed. The Supreme Court in the case
of Arcelor Mittal Nippon Steel India Ltd. v. Essar Bulk
2
Terminal Ltd. and Adhunik Steels Ltd. v. Orissa Manganese
3
and Minerals (P) Ltd. has extensively dealt with the scope
of intervention by the Courts while granting interim relief
pending arbitration. It was reiterated that the jurisdiction of
the Court under Section 9 of the Act is aimed at
safeguarding and preserving the subject matter of the
arbitration, so as to prevent frustration of the arbitral
process and to ensure that the arbitral proceedings are not
rendered otiose or inefficacious. It was further observed
that while exercising jurisdiction under Section 9 of the Act,
the Court cannot adjudicate upon the merits of the dispute,
grant final relief, extend contractual obligations, or direct
specific performance. The relief is essentially preservative
in nature and is governed by the settled principles of grant
of temporary injunctions under Order XXXIX of the Civil
Procedure Code, 1908 (hereinafter referred as „the CPC‟)
and the triple test of prima facie case, balance of
convenience and irreparable harm.
16. Moreover, the Division Bench of this Court, recently,
in GTL Infrastructure Ltd. v. S.C. Wadhwa and Sons
4
(HUF), has held that the powers of the Court under Section
9 of the Act are of wide amplitude and are not confined to
the grant of prohibitory or temporary injunctions analogous
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SRIVASTAVA
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to Order XXXIX of CPC. The Court reiterated that Section 9
of the Act empowers the Court to grant such interim
measures of protection as may be just and convenient,
including mandatory injunctions, where such relief is
necessary to protect and preserve the subject matter of
arbitration and to prevent the arbitral proceedings from
being rendered inefficacious. The relevant extract of the
decision is reproduced as under:—
“14. In the given facts, the contention that an order
under Section 9 of the A&C Act could not be passed
directing the appellant to remove the tower is
unpersuasive. It is settled law that powers of a court
under Section 9 of the A&C Act are wide and
encompass such orders as are necessary to protect and
preserve the subject matter of the arbitration, including
issuing mandatory injunctions. The court must adopt a
course, which is least likely to result injustice if the
same is finally found to be wrong…..”
17. Thus, the paramount object underlying the exercise of
jurisdiction under Section 9 of the Act, inter alia, is the
preservation and protection of the subject matter of the
dispute, so as to maintain the equitable balance between the
parties and to ensure that the arbitral proceedings are not
rendered illusory.
(Emphasis Supplied)
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SRIVASTAVA
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54. At this stage, it is pertinent to refer to Section 14(d) and 41(e) of SRA,
which read as under:
“14. Contracts not specifically enforceable.—The following
contracts cannot be specifically enforced, namely:
….
(d) a contract which is in its nature determinable.
….
41. Injunction when refused.—An injunction cannot be
granted—
….
(e) to prevent the breach of a contract the performance of
which would not be specifically enforced;”
55. Qua the determinable nature of the JDA, it is the case of the petitioner
that the JDA is non-determinable in its nature as it contains a
termination clause which makes the JDA terminable for cause with
notice and affords an opportunity to cure the same. Also, the Clause
No. 12 of the JDA states the contract to be irrevocable. Clause No. 12
of the JDA reads as under:
“12. TERM
12.1. Term of this Agreement shall commence on and from
the date of execution of this Agreement and shall come to an
end on the Closure of the Project ("Term"), Save and except
as provided herein or required under Applicable Law, this
Agreement shall remain irrevocable. ”
56. Reliance is also placed by the petitioner on the judgment of K.S.
Manjunath (supra) , wherein the jurisprudence with respect to Section
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SRIVASTAVA
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14 of the SRA particularly regarding the meaning of “in their nature
determinable” has been explained. The relevant paragraphs of the same
read as under:
“64. In this backdrop, it would be useful to advert to the
classification set out in A. Murugan (supra), wherein the
Madras High Court categorised contracts into five broad
classes depending on their ease of determinability. Out of
those, the first two i.e., (i) contracts inherently revocable
such as licences and partnerships at will, and (ii) contracts
terminable unilaterally on a “without-cause” basis, were
held to be determinable in nature. The remaining classes,
namely, (iii) contracts terminable for cause without
provision for cure, (iv) contracts terminable for cause with
notice and opportunity to cure, and (v) contracts without a
termination clause but terminable only for breach of a
condition, were all held not determinable in nature.
65. Further, as laid down in DLF Home (supra), the
question whether a contract is in its nature determinable
lies in ascertaining whether the party against whom specific
performance is sought has the right to terminate the
contract even when the other party is ready and willing to
perform. This means if the contract cannot be terminated so
long as the other party stands willing to perform, it is not
determinable in its nature and would, in equity, be
specifically enforceable. The same reasoning was followed
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SRIVASTAVA
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in Affordable Infrastructure (supra), where it was held that
a contract terminable for breach cannot merely for that
reason be regarded as determinable, otherwise, no contract
could ever be specifically enforced.
66. Applying these principles, the ATS in the present case
cannot be said to be a determinable contract. Viewed in
light of the classification as set out in A. Murugan (supra),
the ATS would squarely fall within category (v) as
mentioned above. The ATS was devoid of any clause
enabling termination for convenience or otherwise
empowering either party to terminate unilaterally. The only
conceivable circumstance in which ATS could be brought to
an end in the present case was upon a breach of a condition
by either of the parties. Thus, the original vendors did not
possess any contractual right to terminate the ATS in the
absence of default by the original vendees. The grounds
cited in the notice of termination dated 10.03.2003, namely,
the subsistence of a status quo order and the death of one of
the original vendors cannot be said to be based on any
default or breach by the original vendees. The original
vendees had performed their part by paying a substantial
amount and were also ready and willing to perform the
terms of ATS.”
(Emphasis Supplied)
Signed By:ANSH
SRIVASTAVA
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57. It is also important to see Clause No. 11 of the JDA, which reads as
under:
“11. EVENTS OF DEFAULT AND CONSEQUENCES
11.1. GCD shall be considered to be in default of its
obligations under this Agreement, in the event of occurrence
of any of the following ("GCD Event of Default"):
…
11.1.2 . failure and/or delay in fulfilling any of its
obligations which are material in the opinion of DCM , as
set out in this Agreement including but not limited to timely
delivery of units/ Saleable Area to the purchasers/ buyers,
ensuring superior quality of the Project as per the Project
Master Plan and in terms of this Agreement; or
11.1.3. any breach or default which are material in the
opinion of DCM, of the representation or warranties
provided by GCD herein; or
…
11.2 Upon occurrence of a GCD Event of Default before the
Effective Date, and GCD failing to rectify and cure such
GCD Event of Default within 30 (thirty) days from the
occurrence of the GCD Event of Default, DCM shall be
entitled to terminate this Agreement and all rights in respect
of development, construction, sale and marketing of the
Project the Said Land of GCD shall stand cancelled and
revert back to DCM with immediate effect. Upon such
termination, DCM shall refund the entire NRD and AD to
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SRIVASTAVA
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GCD received from them without interest within 180 (one
hundred eighty) days from the date of termination, without
any obligation to compensate GCD for any expenses borne
by GCD in furtherance of the Term Sheet or this Agreement,
including any cost incurred towards applications in respect
of LOI, License and other Approvals for the Said Land/
Project. Upon such termination, DCM shall be entitled to
deal with and/or develop the Said Land / Project in such
manner as DCM may, in its sole discretion, deem fit and
GCD shall not have any claim and/or demand of any nature
whatsoever against DCM and/or under this Agreement.
11.3 Upon occurrence of a GCD Event of Default after the
Effective Date, and GCD failing to rectify and cure such
GCD Event of Default within 30 (thirty) days from the
occurrence of the GCD Event of Default, DCM shall be
entitled, subject to a written notice of 15 (fifteen) days to
GCD, to forfeit, without any obligation to compensate
GCD for any expenses borne by GCD in furtherance of the
Term Sheet or this Agreement, including any cost incurred
towards procurement of LOI, License and other Approvals
and/or construction/development in respect of the Said
Land/ Project, all sums paid by GCD to DCM until such
date, including but not limited the NRD and/or AD or any
portion thereof. Upon such forfeiture, this Agreement shall
stand terminated, without any demur, reservation, contest,
protest or without any reference to GCD. Pursuant to such
Signed By:ANSH
SRIVASTAVA
Signing Date:28.07.2026
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forfeiture and termination, DCM shall be entitled to deal
with and/or develop the Said Land / Project in such manner
as DCM may, in its sole discretion, deem fit and GCD shall
not have any claim and/ or demand of any nature
whatsoever against DCM and/or under this Agreement.
GCD shall, immediately upon such termination, be deemed
to have vacated the Said Land and GCD shall accordingly
remove all its machineries, equipment and labour from the
Said Land within 15 (fifteen) days. GCD shall be bound by
such termination and consequent forfeiture and shall not
cause any hindrance in the development of the Project
including the rights of access and easementary rights with
respect to the Said Land and the Project. GCD will be
responsible to compensate DCM for any cost and/or loss
incurred by DCM on account of any delay by GCD to
comply its obligation in case of termination of Agreement.
Additionally, DCM shall have the right to claim from GCD
any amount appropriated by GCD from the Project over
and above the cost incurred by GCD in terms of this
Agreement. Parties agree that this Clause shall survive
expiry/termination of this Agreement.”
58. From a conspectus of the aforesaid, I am of the view that the scheme of
JDA with respect to its termination is amply clear and squarely falls
under category (iv) of the contract as explained in paragraph No. 64 of
the K.S. Manjunath (Supra) i.e., a contract terminable for cause with
notice and opportunity to cure. In the instant case JDA is a contract
Signed By:ANSH
SRIVASTAVA
Signing Date:28.07.2026
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which is terminable for cause i.e., failure and/or delay in fulfilling
obligations by the petitioner, coupled with a cure period of 30 days
after which in case of failure to rectify, the respondent is entitled to
terminate the JDA with a 15 days‟ notice. Thus, it is essentially a non-
determinable contract.
59. Even though Clause No. 11.1.2 confers the power to decide material
breach unilaterally on the respondent, the same cannot be interpreted to
confer a unilateral power to revoke the contract without any cause and
without assigning any reasons. Additionally, Clause No. 11.3 also
contemplates a cure period of 30 days within which petitioner is
required to cure the event of default as ascertained by the respondent.
Thus, the JDA cannot be said to be a contract which is inherently
revocable or unilaterally terminable without any cause, making the
contract non-determinable in its nature. The findings in the judgment of
6
NHAI v. HK Toll Road (P) Ltd. , were in a different factual scenario
and prior to the judgment of K.S. Manjunath (Supra) .
60. However, relief under Section 9 of the Act cannot be automatically
granted merely because the contract is found to be non-determinable in
nature, it has to essentially and mandatorily satisfy the three-prong test
7
for grant of any equitable relief under Section 9 of the Act.
61. Having answered the first preliminary question in favour of the
petitioner, the next question that arises for my consideration is whether
any relief can be granted under Section 9 of the Act. For this purpose, I
6
2025 SCC OnLine Del 2376.
7
QC One Solutions (P) Ltd. v. DMRC, 2026 SCC OnLine Del 4072.
Signed By:ANSH
SRIVASTAVA
Signing Date:28.07.2026
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shall now assess whether a prima facie case exists in favour of
petitioner for grant of any interim relief.
PRIMA FACIE CASE
62. The petitioner has raised multiple submissions to demonstrate a good
prima facie case in its favour like it has duly complied with all the
condition precedents under Clause Nos. 2.1 and 4.4 of the JDA and has
continued to perform its obligations arising out of the contract. Thus,
the impugned notice itself is not only premature but also beyond the
contractual terms.
63. The impugned notice of termination was issued without any event of
default necessitating such notice because as per the JDA, petitioner was
only obligated to obtain the necessary license and approvals but not
reinstatement after it has been suspended in exercise of powers by the
statutory authority on fault attributable solely to the respondent.
64. The Clause No. 4.4.1 of the JDA, which sets out obligations of GCD
qua approvals and compliance, reads as under:
4.4.1. GCD shall be solely responsible for undertaking all
actions required towards liaison and co-ordination with
Governmental Authorities and other third parties, if any, for
procuring and keeping all Approvals for the
conceptualization, execution, implementation, development
and completion of the Project over the Said Land(including
but not limited to registration under RERA and procuring
completion/ occupation certificate in a time bound manner)
valid and subsisting at its own cost and expenses, in the
name of DCM and engagement of GCD as joint developer,
Signed By:ANSH
SRIVASTAVA
Signing Date:28.07.2026
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in terms of this Agreement. DCM shall provide to GCD such
information and execute such documents as are required by
Governmental Authorities in accordance with Applicable
Laws for obtaining, renewing or modifying the Approvals,
provided however that DCM shall not execute any general
power of attorney in favour of GCD. However, DCM shall
provide authority to GCD from time to time as are legally
necessary in the opinion of DCM for achieving the purposes
of this Agreement. GCD shall not submit any document,
render any information or make any representation before
Government Authorities or third parties, without having
sought the written approval of DCM. It is agreed between
the Parties that GCD shall commence the development of
the Project overthe Said Land only upon acquiring all the
Approvals from the Governmental Authority(ies) in
accordance with the Applicable Laws.
(Emphasis Supplied)
65. From a conspectus of the aforesaid Clause No. 4.4.1 of the JDA and a
perusal of the Term Sheet, it is clear, to my mind, that the JDA imposes
a continuing obligation on the petitioner to not only get necessary
approval and licenses but also to keep them subsisting pending the
completion of the project. Clause No. 4.4.1 categorically vests the
petitioner with the sole responsibility to keep the necessary approvals
in place and subsisting.
66. In this view of the matter, the contention of the petitioner that it was
only under an obligation to obtain the necessary approvals and licenses
Signed By:ANSH
SRIVASTAVA
Signing Date:28.07.2026
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but not to ensure their reinstatement, cannot be accepted, as it lacks
merit and is in essence against the express contractual stipulation
contained under Clause No. 4.4.1 of the JDA.
67. The Term Sheet dated 18.05.2022 entered into between the petitioner
and the respondent duly recorded the mutual intent of the parties to
develop the subject land and mutual obligations of the parties were
duly decided therein. The Recital E of the Term Sheet is important and
reads as under:
“E. Party 2 has accordingly carried out detailed title, legal
and technical due diligence with respect to the Said Land,
including but not limited to review, inspection and
verification of all title documents in relation to the Said
Land such as the relevant sale deed, revenue records,
jamabandis and shijra maps etc, and fully satisfied itself in
regard to Party 1's rights over the Said Land and the
development potential thereof. “
68. The Recital F of the JDA also sets out the extent of liability limited by
the use of “as is where is” basis clause, and the same reads as under:
GCD has reviewed and examined the documents and
information furnished by DCM and has also conducted due
diligence with respect to the Said Land and has obtained
independent legal advice, made enquiries and has satisfied
itself in all respects, with regard to the right, title and
interest of DCM in the Said Land and has also personally
conducted physical inspection of the Said Land, ownership
records, and measurement etc. of the Said Land and is fully
Signed By:ANSH
SRIVASTAVA
Signing Date:28.07.2026
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satisfied with right, title and interest of DCM over the Said
Land and/or every part and portion thereof. On the basis of
representations and assurances of GCD as mentioned in
this Agreement, DCM has agreed to grant the Joint
Development Rights in the Said Land on the Effective Date
(as defined herein) for the conceptualization, execution,
implementation, development and completion of a project
over the Said Land, in accordance with the terms of this
Agreement, strictly on “as is where is” basis on the
premises that GCD will undertake its obligations as set out
in this Agreement in a timely and orderly manner as per
Applicable Laws and GCD has agreed to take all necessary
action along with DCM to procure the Approvals (including
but not limited to the License for development) for the Said
Land in the name of DCM and develop the Said Land at its
own cost and expenses, in the manner envisaged under this
Agreement.
69. Further, Clause No. 9 of JDA which contains the “representations and
warranties” as agreed between the petitioner and the respondent, also
contains a sub-clause bearing No. 9.8 which categorically states that
detailed due diligence has been undertaken by the petitioner. Clause
No. 9.8 of the JDA reads as under:
“9.8 . GCD acknowledges and agrees that DCM has
disclosed and provided all material and important
information / documents pertaining to the Said Land and in
light of the transactions contemplated under this Agreement,
Signed By:ANSH
SRIVASTAVA
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based on the requests made by GCD and/or, their advisors,
representatives, agents, etc., from time to time, as part of
the comprehensive due diligences conducted by GCD on the
Said Land and other matters. GCD agrees and
acknowledges that it has conducted a comprehensive and
detailed due diligence on all aspects of the Said Land
including its title and permissibility for development and
has satisfied itself in all respects and agrees and undertakes
that it shall not raise any claims against DCM with respect
to information/ documents disclosed in respect of the Said
Land.”
70. In view of Recital E of the Term Sheet, Recital F and Clause No. 9.8 of
the JDA, it is clear to my mind, that the petitioner has undertaken due
diligence and reviewed the documents of the subject land including the
nature of ownership, title of respondent and its interest in the subject
land.
71. At this stage and under Section 9 of the Act, I am not inclined/required
to undertake a fact-based evidentiary enquiry to adjudicate upon
disputed questions between the parties which are already being
adjudicated by the Sole Arbitrator. I am only required to satisfy myself
as to existence of a good prima facie case, the balance of convenience
and risk of irreparable loss and injury.
72. To my mind, the aforesaid clauses and recitals clearly indicate that the
petitioner‟s contention regarding suppression of factual information is
misconceived. Having undertaken due diligence qua the subject land,
the petitioner now cannot be permitted to disclaim the knowledge of
Signed By:ANSH
SRIVASTAVA
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such factual material information. The JDA was entered into between
the parties for utilization of petitioner‟s technical know-how and
expertise, and from the documents placed on record, it seems that the
relevant information was already within the knowledge of the
petitioner.
73. Additionally, a perusal of Clause No. 4.4.1 of the JDA as reproduced
above suggests that petitioner was to obtain approval and keep them
valid and subsisting during the entire period of the agreement. Hence,
the petitioner at this stage has failed to make out a prima facie case in
its favour.
BALANCE OF CONVENIENCE AND RISK OF IRREPARABLE
INJURY/ LOSS
74. The petitioner has raised a contention that the impugned notice, in
effect, has divested the petitioner of its valuable rights qua the subject
land vested by virtue of the JDA. The relevant Clause No. 1.1.16 of the
JDA, which defines the scope of “Joint development rights” reads as
under:
“1.1.16. "Joint Development Rights" shall mean and refer
to the joint development rights on the Said Land and shall
include, subject to due fulfilment of its obligations by GCD
in terms of this Agreement, the permission to:
(a) enter upon the Said Land in terms of this Agreement, for
the purpose of developing the Project on the Said Land and
marketing the Saleable Area in the Project to be developed
on the Said Land, in accordance with this Agreement.
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SRIVASTAVA
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(b) carry out, in terms of this Agreement, the
conceptualization, execution, implementation, development,
completion of the Project on the Said Land (as provided in
this Agreement) and bear the entire Project Costs.
(c) to apply for and obtain from the Government Authority,
in the manner prescribed under this Agreement, all
registrations and Approvals in the name of DCM, in respect
of the Project to be developed on the Said Land.
…
(e) to deal with, appear before and file applications,
declarations, certificates and submit information as may be
required under Applicable Law, with any Governmental
Authority, jointly along with DCM and/or duly approved by
DCM in the manner agreed to in this Agreement, in relation
to the conceptualization, execution, implementation,
development, completion of the Project on the Said Land.
(f) to carry out and comply with all the conditions contained
in the Approvals as may be obtained from time to time.
(g) manage the Common Facilities / common areas
developed upon the Said Land as may be required under the
Applicable Laws and/or rules made there under, in
accordance with the terms of this Agreement.
…
(i) do all such incidental and ancillary acts as may be
required to give effect to the foregoing for the
Signed By:ANSH
SRIVASTAVA
Signing Date:28.07.2026
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conceptualization and development of the Project on the
Said Land in accordance with the terms of this Agreement.”
75. Also, Clause Nos. 3 and 5 of the JDA pertaining to the vesting of rights
and revenue sharing and distribution, read as under:
“3. VESTING OF JOINT DEVELOPMENT RIGHTS
3.1. DCM has rights, title and interest over the Said Land
and the Said Land is in the vacant and peaceful physical
possession of Company.
…
5. REVENUE SHAREAND DISTRIBUTION WATERFALL
5.1. In consideration of vesting of Joint Development Rights
in GCD to develop the Said Land, DCM shall be entitled to
receive 55% (fifty five percent) of the Net Sales Revenue
("DCM's Entitlement"). The remaining 45% (forty five
percent) of the Net Sales Revenue shall be paid to GCD in
accordance with this Agreement ("GCD's Entitlement"). The
distribution of the Net Sales Revenue between DCM and
GCD in the ration of 55:45 shall hereinafter be referred to
as the "Sharing Ratio".”
76. From a perusal of the aforesaid, I am of the view that as per JDA there
is no proprietary or possessory interest created in the subject land in
favor of petitioner. The said development was to be undertaken on a
profit-sharing model of 45% and 55%, thus, the same cannot be said to
be conferring anything more than a 45% share in the profits.
77. Hence, there is no irreparable loss or injury to the petitioner which
cannot be compensated in terms of money. If the petitioner succeeds
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SRIVASTAVA
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before the Sole Arbitrator, it can always be compensated for 45% of net
sale revenue or whatsoever is its entitlement under the JDA but as per
the terms of the JDA, the petitioner does not get any right with respect
to the subject land.
78. The reliance placed by the petitioner on paragraph No. 19 of Sushil
8
Kumar Agarwal v. Meenakshi Sadhu , is misconceived as it is
distinguishable on facts. Paragraph No. 19 of the aforesaid judgment
itself states that there is no uniform formula by which it can be
determined if a development agreement can be enforced or not, and it
would always depend upon the terms of the individual agreement and
the rights created thereunder. In the present case, the terms of JDA do
not confer any right qua the subject land upon the petitioner.
79. It is also contended by the petitioner that the JDA contains a stipulation
under its Clause No. 14.9, wherein it is stated that the parties shall
continue to abide by their obligations arising out of the agreement
inasmuch as they do not relate to subject matter of the dispute. Clause
No. 14.9 reads as under:
“14.9 While any dispute is pending, the disputing Parties
shall continue to perform such of their obligations under
this Agreement as do not relate to the subject matter of the
dispute, without prejudice to the final determination of the
dispute.”
80. The aforesaid contention of the petitioner raised by placing reliance on
the judgment of Innovative Facility Solutions (Supra) is misconceived
and unfounded as the present case is entirely distinguishable on facts
8
(2019) 2 SCC 241.
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SRIVASTAVA
Signing Date:28.07.2026
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from Innovative Facility Solutions (Supra) . In Innovative Facility
Solutions (Supra) , the relevant Clause therein clearly stated that the
parties will maintain status quo with regards to the “services,
consideration and other obligations”.
81. To the contrary, Clause No. 14.9 of JDA clearly provides for
continuance of performance in so far as it does not relate to the subject
matter of the dispute.
82. The petitioner has also fleetingly raised several contentions regarding
the balance of convenience and risk of irreparable injury, which to my
mind are unfounded. The petitioner having invested substantial money
and labour in a particular project cannot urge the balance of
convenience in its favour, because the remedy to seek damages in such
a case is always available to the petitioner.
83. In view of the aforesaid findings, it is not necessary to deal with the
contentions raised by the respondent by placing reliance on Section
20A and 41(ha) of SRA as the petitioner‟s case fails to satisfy the
three-fold test for grant of interim relief.
CONCLUSION
84. The petitioner has failed to establish a good prima facie case, balance
of convenience in its favour, and risk of irreparable loss and injury.
Accordingly, the petition is dismissed and the interim order stands
vacated.
85. The observations made hereinabove are only for the purpose of
decision in the present petition filed under Section 9 of the Act, and the
Sole Arbitrator shall be at liberty to draw his independent conclusions
after evidence is led in the matter.
Signed By:ANSH
SRIVASTAVA
Signing Date:28.07.2026
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JASMEET SINGH, J
th
JULY 28 , 2026/(SS)
Signed By:ANSH
SRIVASTAVA
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