Templated Petition’ Misconceives Arbitration Jurisdiction: Bombay High Court Refuses Developer’s Plea, Upholds Decreed Tenancy Rights Against Eviction
Isabella Mariam
The High Court of Judicature at Bombay Single Bench, of Justice Somasekhar Sundaresan, refused to grant interim relief sought under Section 9 of the Arbitration and Conciliation Act, 1996. The case involved a redevelopment dispute concerning protected tenants of a building known as Keni House in Mumbai. The Court declined to permit eviction through interim measures against tenants who held decreed tenancy rights under the Maharashtra Rent Control Act, 1999.
The petition was filed by a developer seeking a Court Receiver's appointment to take possession of the premises occupied by tenants labelled as "non-cooperating" in the context of a redevelopment project. The Court held that such relief could not be granted under the arbitration framework, given the statutory protections and jurisdiction of the rent courts.
The petitioner, SJK Buildcon LLP ("Developer"), entered into a Development Agreement dated February 12, 2024, with the landlords, Respondents No. 1 and 2, namely Ms. Kusum Pandurang Keni and Mr. Ninad Ajay Keni ("Landlords"). The agreement concerned redevelopment of Keni House, a building with 22 tenements, out of which 18 are in possession of tenants and four with the landlords.
The Developer, holder of a General Power of Attorney from the Landlords, approached the Court under Section 9 of the Arbitration and Conciliation Act, 1996, seeking interim relief for possession of tenanted premises. The premises were occupied by two groups of individuals: the legal heirs of Mr. Umanath Saligram Mishra (Respondent No. 3), and Mrs. Supriya Sengupta (Respondent No. 4). The Petition alleged that these parties were illegally occupying garages or premises not entitled to continued possession.
However, Respondent No. 3's legal heirs, referred to as "Protected Tenants," were beneficiaries of a decree passed by the Small Causes Court in RAD Suit No. 1980 of 2004. This decree, dated October 20, 2012, legally recognized tenancy rights over premises operated as Ganesh Flour Mill. The landlords' appeal against the decree (First Appeal No. 278 of 2014) was dismissed by a judgment dated March 13, 2015. The decree thus attained finality.
Respondent No. 4, Supriya Sengupta, succeeded tenancy rights through her predecessors, whose right to possession had been adjudicated in a chain of proceedings beginning in 1983. The final order came from the Supreme Court in SLP (C) 30618 of 2024, which dismissed the appeal and allowed time until January 31, 2025, for her to vacate. As of the date of this judgment, she had not vacated the premises, and contempt proceedings were pending before the Supreme Court.
The Developer contended that redevelopment was stalled due to the Protected Tenants and Sengupta's refusal to vacate, causing financial burden through transit rent obligations. The Petition requested the Court to intervene under Section 9 to ensure possession and facilitate redevelopment.
Justice Somasekhar Sundaresan examined the statutory framework and factual matrix. He observed, "This is yet another templated Petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 seeking appointment of a Court Receiver to take possession of premises from 'occupants' in connection with redevelopment of a building."
The Court recorded that the Protected Tenants were not only lawful tenants but also beneficiaries of a judicial decree affirming their tenancy status. It stated, "The Petition is eloquently silent about one vital fact. The Protected Tenants are not just protected tenants; they are also beneficiaries of a decree with two concurrent findings of the special rent courts."
On the issue of Sengupta, the Court noted, "Sengupta has lost all the way to the Supreme Court and has outlasted the borrowed time granted to her by the Supreme Court for vacating her premises."
Evaluating Section 9 jurisdiction, the Court recorded, "The jurisdiction of Section 9 of the Act is one that is in aid of arbitral proceedings. The measures that the Court may issue are meant to be aimed at protecting the subject-matter of the dispute." It added, "Without such a foundational fact, the Section 9 jurisdiction would not, in my opinion, be available against the world at large to solve every conflict that any party to the arbitration agreement may have against any third party."
Justice Sundaresan remarked that the petition sought "speedy eviction" under the guise of interim relief, which was inconsistent with the protections offered by the Maharashtra Rent Control Act. The Court referred to Section 16 and Section 33 of the Rent Act, noting that eviction in cases of redevelopment must follow procedures outlined therein.
Referring to precedent, the Court cited Bajarang Shyamsunder Agarwal vs. Central Bank of India, Harshad Govardhan Sondagar, and Vishal N. Kalsaria to state that statutory tenancy rights cannot be overridden through alternative legal mechanisms such as SARFAESI or arbitration-related measures.
The Court concluded that no interim measures were warranted in the petition filed under Section 9 of the Arbitration and Conciliation Act, 1996. It held that the issues raised and the reliefs sought fell squarely within the exclusive jurisdiction of the Small Causes Court under the Maharashtra Rent Control Act, 1999. Therefore, it declined to exercise its jurisdiction under Section 9 of the Arbitration Act for the reliefs prayed.
Accordingly, the Court disposed of the petition without issuing any interim measures, observing that the Developer and the Landlords must respect the pre-existing tenancy rights of the Protected Tenants and follow due process of law.
As regards Respondent No. 4 (Sengupta), the Court noted that the time granted by the Supreme Court to vacate the premises had expired and that contempt proceedings were pending before the Supreme Court. In light of this, the Court held it would be inappropriate to set terms or issue directions regarding the contempt.
It was directed that all actions required to be taken pursuant to the judgment shall proceed on the basis of a downloaded copy available on the Court’s website.
Advocates Representing the Parties:
For the Petitioner: Mr. Mayur Khandeparkar, Sarthak Utangale, i/b M/s. Utangale & Co.
For Respondents: Mr. Abhishek Kothari, i/b Rishabh Botadra
Case Title: SJK Buildcon LLP vs. Kusum Pandurang Keni & Ors.
Neutral Citation: 2025: BHC-OS:6397
Case Number: COMMERCIAL ARBITRATION PETITION (L) NO. 20834 OF 2024
Bench: Justice Somasekhar Sundaresan
[Read/Download order]
