D.Y. Chandrachud, J.
1. In a petition under Section 9 of the Arbitration and Conciliation Act, 1996, two reliefs have been sought pending the commencement and conclusion of arbitral proceedings: (i) The appointment of a Receiver in respect of a plot of land which forms the subject matter of the dispute, with a direction to the Receiver to take possession and hand over possession to the Petitioner; (ii) An order of injunction restraining the Respondents from alienating or creating third party rights in respect of the plot.
2. Respondent Nos.1 to 7 are the legal heirs of Abdul Hafeez Khairulla Quraishi (Patrawala) who died on 31st July 2005. During his lifetime, the deceased entered into a Memorandum of Understanding of 9th June 2005 under which he is alleged to have agreed to transfer and assign his right title and interest in a plot of land at the Bandra Kurla Complex, bearing CTS No.4207, admeasuring 819.3 sq.mtrs. to the Petitioner. The deceased, the Petitioner and the Eighth Respondent as developer, were parties to the agreement. The MOU contemplates that the Eighth Respondent would construct on the land a building of the required specifications, for consideration. The Petitioner claims to have paid an amount of Rs. 1.15 crores to the deceased and an amount of Rs. 2.16 crores to the Eighth Respondent. Prior to the execution of the MOU, the deceased had entered into a Development Agreement dated 27th July 2004 with the Eighth Respondent. In the circumstances, the Eighth Respondent was a party to the subsequent MOU executed in June 2005 in favour of the Petitioner.
3. The case of the Petitioner is that a joint meeting was held at the office of its Advocate. Parties agreed that three originals of the MOU, all duly executed, would be kept in escrow with the Advocates for the three parties until such time as the formalities contemplated in accordance with the schedule set out in Clause 9 of the MOU were completed. According to the Petitioner, until such time, the original title deeds were to be kept in escrow with Mr.Anil Harish, a partner of D.M. Harish & Co., a firm of Advocates representing the Petitioner. None of the parties retained a copy of the MOU which at that stage was not stamped or registered, it being in the contemplation of the parties that the MOU may have to be redrafted in the form of several documents while keeping the basic terms intact and binding.
4. The Petitioner has averred that it arranged a Pay Order of Rs. 1.74 crores in favour of the Mumbai Metropolitan Regional Development Authority (MMRDA) which had granted leasehold rights in respect of the plot of land to the deceased. However, the payment was not completed on account of the failure of the Eighth Respondent to obtain a letter of offer for the Transferable Development Rights (TDR) from MMRDA at the prevailing value.
5. After the death of the predecessorintitle of Respondent Nos.1 to 7 on 31st July 2005, the Petitioner claims to have approached the legal heirs to complete formalities such as obtaining letters of administration to facilitate an assignment and transfer of the plot to the Petitioner. Upon the instructions of Respondent Nos. 1 to 3, the Petitioner paid Rs.2,35,635/on 30th March 2006 to the Municipal Corporation for Greater Mumbai.
6. The MOU contemplates, according to the Petitioner, that the consideration payable by the Petitioner was to be computed on the basis that an FSI of two would be available. However, parties agreed that since the then prevailing FSI was one, if the higher FSI of two was not available, the consideration would stand proportionately reduced. The contention of the Petitioner is that the actual value of the property was to be either Rs.23 crores (in the event of the FSI of two being available) or Rs. 11.5 crores, in the event of an FSI of one being available.1
7. According to the Petitioner, Respondent Nos.1 to 7 had informed them that there were disputes between the legal heirs. On 2nd December 2006, a letter was addressed by the Petitioner's Advocate calling upon Respondent Nos.1 to 6 on the one hand and Respondent No. 8, the developer on the other to comply with their obligations. These included, in so far as Respondent Nos.1 to 6 are concerned, an application for the grant of Letters of administration, intimation to MMRDA and a direction to the Advocates to release the MOU from escrow. In so far as the Eighth Respondent is concerned, a direction was sought for the initiation of steps for the purchase of TDR , for obtaining the permission of statutory authorities including 1 Paragraph 6 of the Rejoinder the BMC and MMRDA and a direction to the Advocate to release the MOU from escrow.
8. By a letter dated 14th December 2006, the Eighth Respondent claimed that the MOU stood terminated. The First Respondent by its letter dated 24th January 2007 declined to comply with the requisitions contained in the letter of the Petitioner's Advocate dated 2nd December 2006, while the Sixth Respondent by a letter dated 18th December 2006 offered to hold talks for an amicable settlement. The Seventh Respondent was stated, in the aforesaid letter of the Sixth Respondent, to be a daughter of the deceased and this Court was informed during the course of the hearing that the Sixth Respondent is stated to be the second spouse under a marriage contracted by the deceased.
9. On 23rd January 2007, the Petitioner issued a notice recording that a dispute had arisen under the MOU, consequent upon which the arbitral provisions in Clause 22(ii)(h) were being invoked. The Eighth Respondent responded on 21st February 2007 claiming that the agreement had been terminated. There was no reply to the notice invoking arbitration from Respondent Nos.1 to 7. The Petitioner claims to be ready and willing at all material times to discharge its obligation under the MOU and on that foundation relief has been claimed in the petition under Section 9 of the Act.
10. A reply has been filed to the Arbitration Petition by the Second Respondent. The principal defence is that there is no concluded contract 'as the terms have not been complied with or certain terms were to be agreed upon and also there is no mention of the consideration amount entitling the Petitioner to enforce the same.' The contention of Respondent Nos.1 to 5 is that since the MOU was kept in escrow, it was not to be acted upon until certain conditions and other terms were agreed upon between the parties and there was, therefore, no concluded contract. The Second Respondent has stated that she is not aware and, therefore, denies that the Petitioner paid a sum of Rs. 1.15 crores to the deceased towards the consideration, for the reasons as alleged and the contention is that the amount was to be treated as a security deposit to establish the bona fides of the Petitioner pending negotiation of the terms of the agreement. The execution of the agreement has not been denied, but the defence is that the deceased was forced to sign MOU without legal advice 'and without understanding the legal implication of the terms agreed upon.' Respondent Nos.6 and 7 have adopted the submissions urged on behalf of Respondent Nos.1 to 5. A rejoinder has been filed on behalf of the Petitioner, the contents of which would be adverted to at the appropriate stage, when the submissions are considered.
11. The principal defence to the petition which has been instituted under Section 9 of the Arbitration and Conciliation Act, 1996 is that (i) The averments in paragraphs 2 and 3 of the Arbitration Petition demonstrate that admittedly the MOU was lodged in escrow, with each of the three Advocates representing the three parties to the MOU being in custody of a duly executed original; (ii) A document which is placed in escrow is still born and has no legal effect whatsoever unless the conditions subject to which the document was to be released are fulfilled; (iii) The Arbitration Agreement is contained in a document which was placed in escrow and that consequently, no Arbitration Agreement came to exist in the first place because the MOU has no legal effect so long as it continues to remain in escrow with the Advocates.
12. On the other hand it has been submitted on behalf of the Petitioner that (i) The execution of the MOU by the deceased is not disputed by the Respondents, but the defence is that the deceased was deceived into executing the agreement; (ii) In other words, the arbitrability of the disputes which have arisen between parties is not denied. Clauses 9 and 21 of the MOU which is annexed to the petition, would in fact, prima facie show that the escrow relates to the contract of assignment and not the arbitrability of the disputes that have arisen between the parties; (iii) The intention of the parties was never to keep the Arbitration Agreement out of the purview of enforceability but it was the parent contract in regard to enforceability of the assignment which was to be lodged in escrow; (iv) A written contract containing an arbitral agreement can under subsection ( 4) of Section 7 be contained inter alia in letters and communications. The affidavit in reply filed by Respondent No. 1 to 7 in the petition under Section 11 of the Arbitration and Conciliation Act, 1996 filed by the Petitioner would demonstrate beyond doubt that the existence of the arbitration clause has not been denied and it is only the invocation of the arbitration agreement which has been disputed; (v) The Scheme of the Act of 1996 particularly Sections 7 and 16 would establish that a dispute of the nature would be arbitrable and that the arbitration clause would survive even if it was the contention of one of the parties that the condition precedent which would release the document from escrow had not been fulfilled; and (vi) In the present case an interim measure of protection was warranted under Section 9 particularly in view of the fact that acting in pursuance of the MOU the Petitioner has paid an amount of Rs. 3.31 crores - Rs. 1.15 crores to the deceased and Rs. 2.16 crores to the Eighth Respondent.
13. Now in view of the judgment of the Supreme Court in SBP and Co. v. Patel Engineering Ltd. : AIR2006SC450 it is a settled principle of law that where in the course of the hearing of a Petition under Section 9 of the Arbitration and Conciliation Act, 1996, the existence of an arbitration agreement is disputed by a party against whom relief has been claimed or where such a party contends that the dispute is not arbitrable, the Court has the jurisdiction to decide whether there exists a valid arbitration agreement or whether the dispute is arbitrable in terms of the agreement. The principle which has been formulated by the Supreme Court is as follows :
Section 9 enables a Court, obviously, as defined in the Act, when approached by a party before the commencement of an arbitral proceeding, to grant interim relief as contemplated by the Section. When a party seeks an interim relief asserting that there was a dispute liable to be arbitrated upon in terms of the Act, and the opposite party disputes the existence of an arbitration agreement as defined in the Act or raises a plea that the dispute involved was not covered by the arbitration clause, or that the Court which was approached had no jurisdiction to pass any order in terms of Section 9 of the Act, that Court has necessarily to decide whether it has jurisdiction, whether there is an arbitration agreement which is valid in law and whether the dispute sought to be raised is covered by that agreement. There is no indication in the Act that the powers of the Court are curtailed on these aspects. On the other hand, Section 9 insists that once approached in that behalf, 'the Court shall have the same power for making orders as it has for the purpose of and in relation to any proceeding before it'. Surely, when a matter is entrusted to a Civil Court in the ordinary hierarchy of Courts without anything more, the procedure of that Court would govern the adjudication.
In view of the provisions of Section 9, as interpreted in the judgment delivered by a Bench consisting of seven Judges of the Supreme Court, the basic postulate for the purpose of the present case is that since the existence of an arbitration agreement has been disputed it is for this Court to determine whether there exists a valid arbitration agreement to refer disputes to arbitration. The submission which has been urged on behalf of the Respondents is that the entire agreement constituted by the MOU executed in June 2005 has been placed in escrow and, that an agreement which lies in escrow does not become a deed in the eyes of law until the condition subject to which the document was to be released is fulfilled.
14. When parties to an agreement or the executants of a document place the agreement or, as the case may be, the document in escrow, parties intend that pending the fulfillment of certain conditions which they stipulate, the document will be held in custody by the person with whom it is placed. Notwithstanding the execution of the agreement or the execution of the document, the act of placing the instrument in escrow evinces an intent that the document would continue to lie in escrow until a condition which is precedent to the enforceability of the document comes to exist. The instrument becomes valid and enforceable in law only upon the due fulfillment of a prerequisite and often the parties may stipulate the due satisfaction of a named person on the fulfillment of the condition. An Escrow agent may be appointed by the parties as the person who will determine whether a promise or condition has been fulfilled so as to warrant the release of the document from escrow. In Wharton's Law Lexicon, the effect of an escrow is stated thus:
Escrow, a writing under seal delivered to a third person, to be delivered by him to the person whom it purports to benefit upon some condition. Upon the performance of the condition it becomes an absolute deed; but if the condition be not performed, it never becomes a deed. It is not delivered as a deed, but as an escrow, i.e. a scrowl, or writing which is not to take effect as a deed till the condition be performed.
In Halsbury'sLaws of England, there is the following elaboration of the principle which underlies the placement of a document in escrow:
1332. Escrow. An intended deed may, after sealing and any signature required for execution as a deed, be delivered as an escrow (or scroll), that is as a simple writing which is not to become the deed of the party expressed to be bound by it until some condition has been performed. Thus, a conveyance on sale or a mortgage or a surrender discharging a mortgage may be delivered in escrow so as to be binding on the grantor only if the grantee pays the consideration money or only if the grantee executes a counterpart or some other deed or document as agreed with the grantor.
Like delivery as a deed, delivery as an escrow may be made in words or by conduct although it need not be made in any special form or accompanied with any particular words, the essential thing in the case of delivery as an escrow being that the party should expressly or impliedly declare his intention to be bound by the provisions inscribed, not immediately, but only in the case of and upon performance of some condition then stated or ascertained. In the absence of direct evidence whether or not a deed of conveyance was delivered as an escrow, the fact that only part of the purchase price has been paid at the time of delivery justifies the inference that the deed was delivered as an escrow pending payment of the balance.
In Halsbury the effect of the delivery of a document as escrow is explained thus:
1334. Effect of delivery as escrow. When a sealed writing is delivered as an escrow it cannot take effect as a deed pending the performance of the condition subject to which it was so delivered, and if that condition is not performed the writing remains entirely inoperative. If, therefore, a sealed writing delivered as an escrow comes, pending the performance of the condition and without the consent, fault, or negligence of the party who so delivered it, into the possession of the party intended to benefit, it has no effect either in his hands or in the hands of any purchaser from him; for until fulfillment of the condition it is not, and never has been, the deed of the party who so delivered it. When a sealed writing has been delivered as an escrow to await the performance of some condition, it takes effect as a deed (without any further delivery) immediately the condition is fulfilled, and the rule is that its delivery as a deed will, if necessary, relate back to the time of its delivery as an escrow; but the relation back does not have the effect of validating a notice to quit given at a time when the fee simple was not vested in the person giving it.
It follows that, for a deed delivered as an escrow to take effect, the party making it must be fully capable, at the time of its delivery as an escrow, of doing the act evidenced by the deed. Thus, if a minor were to deliver a deed of mortgage as an escrow to take effect on his attaining full age, such delivery would be altogether void.
On the other hand, where the party to be bound by the deed has in all respect full capacity to do the act to be evidenced by it at the time of its delivery as an escrow, it will be no ground for avoiding the deed if he dies or ceases to be sui juris before the condition is performed.
These principles find support in a judgment of Mr.Justice F.I. Rebello in Hira Mistan v. Rustom J. Noble : 2000(1)BomCR716
An escrow has been held to be a document deposited with the third person to be delivered to the person purporting to be benefited by it upon the performance of some condition, the fulfillment of which is only to bring the contract into existence. Oral evidence is admissible under this proviso to show that the Deed was executed or delivered conditionally as an escrow. Escrow has also been explained as an intended Deed after sealing and any signature required for execution as a deed, be delivered as an escrow, that is as a simple writing which is not to become the deed of the party expressed to be bound by it until some condition has been performed. Escrow has also been defined to mean that where an instrument is delivered to take effect on the happening of a specified event or upon condition that it is not to be operative until some condition is performed then pending the happening of that event or the performance of the condition the instrument is called an escrow. The doctrine has been applied in India.
15. Now, in the present case, the argument before the Court is that upon the delivery of the document in escrow parties intended that the document should not be acted upon until the conditions subject to which the document was held in escrow were fulfilled and since the arbitration clause is a part of the main agreement, the arbitration clause is not effective until the document is released from escrow. This submission which has been urged on behalf of the Respondents cannot upon reflection stand scrutiny for three reasons. The first is based as a matter of first principle, on the common law doctrine of escrow, the second reason is founded on the scheme and provisions of the Arbitration and Conciliation Act, 1996, and the third on the facts as they emerged before the Court at the present stage.
16. The first reason can now be taken up. Parties to a deed, by the lodgment of the document in escrow evince an intent that the document shall be released subject to the fulfillment of the condition under which it is held in escrow. Documents which are held in escrow are sometimes delivered into the custody of a stranger while on other occasions, they are held as escrow by an attorney acting for all parties thereto. Halsbury in fact, postulates that a document may be handed over as escrow even to a Solicitor for a party to benefit under the deed provided it is handed over to him as the agent of all parties for the purpose of such delivery. In the present case it is undisputed that three originals of the document have been handed over to each of the Advocates representing the respective parties. Where a dispute arises as to whether the conditions subject to which the escrow has been lodged are fulfilled, parties may agree to abide by the decision of the person who holds the document in escrow as to the fulfillment of the condition, but here again there can be no absolute rule. The conditions which parties stipulate may be something as simple as a payment of a certain part of the consideration which remains in balance but the complexities of business transactions may well involve the determination of a more elaborate set of facts for the ascertainment of compliance. The conditions to be fulfilled may involve the performance of multifold obligations by different parties to the same contract and the condition may involve a reciprocal discharge of obligations between parties. In such a situation, the question as to whether the escrow conditions have been duly fulfilled so as to warrant the release of the document from escrow may involve a complex determination and the Court will not readily assume the exclusion of the jurisdiction of an adjudicatory forum where a dispute arises in regard to the fulfillment of the conditions. Unless the parties have expressly or by necessary implication excluded the jurisdiction of an adjudicatory forum such an exclusion shall not be readily inferred. That must apply with equal force to an arbitration clause which forms part of the agreement. Where a dispute arises between the parties on the question as to whether the conditions requisite to the fulfillment of the escrow have been accomplished, there would be no reason to exclude the determination of that question from the jurisdiction of the Arbitral Tribunal. Where a document has been lodged in escrow, as in the present case, with Advocates for each of the three parties under a tripartite agreement, it would be repugnant to all sense of equity, fair play and business ethics to allow any one party which seeks an undue benefit from the continuance of the document in escrow to prevent an adjudication of the question as to whether the escrow condition was fulfilled.
17. The second principle which must be borne in mind is based on the provisions and scheme of the Arbitration and Conciliation Act, 1996. Under Section 7(2), an arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Subsection (3) postulates that it shall be in writing. Section 7(4) then provided as follows:
(4) An arbitration agreement is in writing if it is contained in
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
Under Section 16(1), the Arbitral Tribunal is empowered to rule on its own jurisdiction including ruling on any objection with respect to the existence or validity of the arbitration agreement. For that purpose, Clause (a) says that an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. Clause (b) provides that a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. These provisions are significant where a dispute such as the one which arises in the present case, on the fulfillment of an escrow condition is raised. The provisions of Section 7(4) when juxtaposed with subsection (1) of Section 16 would lead to a reasonable inference that an arbitration clause can well be treated as a condition independent of the other terms of the contract and that even the nullity of the underlying contract shall not necessarily in the eyes of law, lead to invalidity of the arbitration clause. Any interpretation by the Court must, therefore, fulfill the salutary object of Parliament while enacting these provisions of the Arbitration and Conciliation Act, 1996.
18. The third aspect of the case is the facts as they have emerged before the Court. The Petitioner invoked the arbitration clause by a letter dated 23rd January 2007. Respondent Nos.1 to 7 did not respond to the letter. Respondent No. 8 in his reply dated 21st February 2007 did not contend that there was no arbitration clause at all, but that the MOU 'had been rendered cancelled, invalid, and infructuous'. The next important aspect which requires emphasis is that the Petitioner filed an application under Section 11 of the Act seeking the appointment of Arbitrator. The reply that was filed on behalf of Respondent Nos. 1 to 7 to the Section 11 petition is extremely significant. In their reply, Respondent Nos. 1 to 7 do not deny the existence of the arbitration agreement, but on the contrary, the averment that was made was to the effect that the invocation of the arbitration clause by the Petitioner was premature. The relevant part of the reply reads as follows :
I say that the present Application is a premature application taken out by Applicant. I say that invocation of the arbitration, as per letter dated 21st February 2007 is bad in law and not as per the provisions of the Arbitration and Conciliation Act, 1996.
6. I say that the Applicant is relying upon Clause No. 22II(h) being the arbitration clause for the purpose of approaching this Hon'ble Court. I say that arbitration clause provides for three Arbitrators and in the alternate, if the parties agree then to a sole Arbitrator. I say that Respondent Nos. 1 to 5 has not consented for the appointment of the Sole Arbitrator. If that be the case, as per the said arbitration clause, the dispute or differences are to be referred to three Arbitrators. Keeping this in mind, the notice dated 23rd January 2007 is not proper and as per the said arbitration clause. The arbitration clause provides for three Arbitrators and each party had to appoint one Arbitrator. The applicant themselves have not complied with their part of the obligation to appoint an arbitrator and therefore in my respectful submission, the said notice dated 23rd January 2007 itself is defective and bad in law and not as per the provisions of the Arbitration and Conciliation Act, 1996. It is submitted that the present application is a premature application and not as per the procedure prescribed in the said arbitration clause.' The reply filed to the petition under Section 11 thus clearly demonstrates that there has been an acceptance of the position that
(i) There was a valid agreement between the parties to refer disputes to arbitration; and
(ii) The arbitration clause was enforceable and valid. Respondent No.8, as already noted earlier, has in his reply dated 21st February 2007 not contested the existence or validity of the arbitration clause.
19. In these circumstances, for all the three reasons noted above, it is impossible for the Court to accept the submission which has been urged on behalf of the Respondents that there was no valid and enforceable agreement between the parties to refer their disputes to arbitration.
20. Now in this background, the question that arises before the Court is as to whether a case has been made out for the grant of interlocutory relief pending the disposal of the arbitral proceedings. In my opinion, a prima facie case has been made out so as to warrant the grant of an interim measure of protection under Section 9 of the Act. Firstly, there is no dispute between the parties that the Petitioner has paid consideration amounting in all to Rs. 3.31 crores under and in pursuance of the agreement. An amount of Rs. 1.15 crores was paid to the deceased while the amount of Rs. 2.16 crores was paid to the Eighth Respondent, the developer. The heirs of the deceased have fairly stated before this Court through Learned Counsel that they have received the consideration. The defence is that the payment of Rs. 3.31 crores was a security deposit pending the completion of negotiations. The nature and character of the payment will be decided upon by the arbitral proceedings, but at this stage, it is undisputed that a substantial payment was in fact made. Secondly, the execution of the agreement by the predecessorininterest of Respondent Nos. 1 to 7 and by Respondent No. 8 is not denied. The defence in the affidavit in reply is that the agreement came to be executed by the deceased as a result of an act of deception practised upon him and at that time his Advocate was not available in Mumbai during the period from 7th to 9th June 2005. On the other hand it has emerged from the material placed on record, at this stage, that on 18th May 2005, the deceased had addressed a letter recording that he had no objection to a public notice being issued in the newspapers inviting claims in respect of the immovable property. In pursuance thereof, public notices were issued in the newspapers on 19th May 2005 and 29th May 2005. Thirdly, the Petitioner has relied upon a letter dated 30th March 2006 addressed by Respondent Nos. 1 to 3 to the Petitioner requesting the Petitioner to make payment of Rs.2,35,635/ to the Municipal Corporation. The text of the letter written by Respondent Nos. 1 to 3 reads thus:
Subj: Cheque in favour of M. C. G. M. Ref : GTex Block, Bandra Kurla Complex, Brandra (East), Mumbai 400 051 bearing CTS No.4207 of Village Kole Kalyan, Taluka Andheri.
We request you to kindly make payment of Rs.2,35,635/( Rupees Two Lacs Thirty Five Thousand Six hundred ThirtyFive only) in favour of Municipal Corporation of Greater Mumbai on our behalf and also request you to kindly adjust the same against amount payable to us by your under MOU dated 10th June 2005 towards the above mentioned property.
Prima facie,at this stage, it would, therefore, emerge that Respondent Nos.1 to 3 had, acting on the MOU dated 10th June 2005 requested the Petitioner to make a payment to the Municipal Corporation. Though the aforesaid letter has been produced in the rejoinder filed by the Petitioner on 16th January 2008, the letter has remained to be controverted thereafter on the part of the Respondents.
21. Counsel appearing on behalf of the Petitioner had during the course of the hearing produced a sealed envelope containing the original of the document placed in escrow with Shri Anil Harish, Partner of M/s. D.M. Harish & Co. Learned Counsel had submitted that the Petitioner would have no objection if the Court directs the removal of the seal to facilitate a perusal of the original document that had been executed. An affidavit of Shri Anil Harish was filed in the proceedings. Counsel appearing for the Respondents opposed the unsealing or perusal of the document by the Court. The seal has, therefore, not been opened.
22. For all these reasons, I am of the view that a prima facie case has been made out for the grant of an interim measure of protection. What were the conditions subject to which the document was to be held and released from escrow are evidentiary matters to be decided by the Arbitral Tribunal. At this stage, the interest of the Petitioner would necessitate protection by an order of injunction restraining the Respondents from creating third party rights or alienating the plot of land. This Court is of the view that the ends of justice would be met by passing an order of injunction restraining the Respondents from disposing of, alienating or creating third party rights in respect of the plot of land in question and that in the circumstances, an order for the appointment of a Receiver is not warranted. The balance of convenience is in favour of the Petitioner and the Petitioner has established a prima facie case. Irreparable injury will result unless an interim measures of protection were to be granted. The Arbitration Petition is accordingly made absolute in terms of prayer clause (b) (excluding the words 'or in any manner dealing with'); namely
(b) That pending the commencement, hearing and final disposal of the arbitration proceedings, the Respondents by itself, its officers, employees and servants be restrained by an order and injunction of this Hon'ble Court from disposing of, alienating, selling, creating third party rights on the said plot being land situated at South of Fire Brigade Station and on 24 meter Road in GTex Block, BandraKurla Complex, Bandra (East), Mumbai400 051 bearing CTS No.4207 of Village Kole Kalyan, Taluka: Andheri in favour of any person or persons other than the Petitioner.
23. The Arbitration Petition is made absolute to the aforesaid extent....