ARBITRATION

BEFORE THE LEARNED SOLE ARBITRATOR

____________________________, ADVOCATE

__________________________________, )

a company incorporated under the )

provisions of the Companies Act, 1956 )

and having its registered Office )

at ____________________________, )

_________________________________ ) ... CLAIMANT

VERSUS

_______________________________ )

Co-operative Housing Society )

Limited, a society registered )

under the provisions of _____________ )

having Registration No.____ of _____ )

and having its registered address )

at ___________________________ )

_____________________________ ) ... RESPONDENT

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ARBITRATION

STATEMENT OF CLAIM

1. The Claimant is a company incorporated under the

provisions of the Companies Act, 1956 having its registered

office at the address mentioned in the cause title

hereinabove.

2. The Claimant is a reputed Builder/Developer and is in

business of acquisition, development and construction of

properties/plots of land since the year _______. The Claimant

states that the Claimant and its associate groups have

expertise in construction of buildings and possess adequate

establishment, staff, architects and engineers and resources

for development of immovable properties, inter alia, by

construction of buildings and/or of commercial/ residential

units/premises therein. The Claimant also possess technical

knowledge and long experience in the building-construction

business for executing the works covered by the subject

contract. As on date, the Claimant has already completed

about _____ major projects and about _____ projects are

under development and expected to be completed during the

coming years. A list of the said projects/works of the

Claimant Group is annexed as Exhibit “A” hereto.

3. The Respondent is a Co-operative Housing Society,

(hereinafter referred to as the "Society"), registered under

the _______________________ , having its registered office at

the address set out in the cause title. The Respondent is the

owner of immovable property being a Plot of land bearing No.

______, _________________ and the building standing thereon

known as “ ______________________” occupied by _____

occupants all of whom are members of the Respondent

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ARBITRATION

Society. The said Plot along with the said Building are

hereinafter collectively referred to as “the said property”

and more particular described in the Schedule at Exhibit

“A-1” hereto. As stated hereafter, the Respondent Society,

through its then duly authorised Managing Committee, have

entered into an Agreement with the Claimant recorded in a

Memorandum of Understanding dated ___________ for

redevelopment of their said property by the Claimant.

4. The present Statement of Claim is being filed, inter alia,

seeking specific performance of the said Memorandum of

Understanding dated ___________ by which the Respondent

Society has granted development rights to the Claimant,

coupled with further rights and interest in the said property

and in the circumstances more particularly set out hereafter.

5. The material facts, leading to the filing of the present

Statement of Claim and which are necessary for the

adjudication of issues involved in the present Claim, are as

under –

[NOTE:

(i) Set out all your facts in detail;

(ii) Annex all the relevant documents;

(iii)Also set out how this Arbitral Tribunal came to be

constituted ;

(iv) If there are earlier proceedings before the Hon’ble

High court or any/other court, give reference of the

same.]

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ARBITRATION

6. The Claimant states and submits that the Respondent

Society has, for reasons known best to them, not finalized the

draft Development Agreement nor has the Respondent Society

complied with its obligations under the said MOU dated

__________ to hand over vacant possession of the said buildings

to enable the Claimant to obtain requisite permissions for their

demolition and for redevelopment of the said property.

Therefore, the Claimant is constrained to file the present

Statement of Claim seeking appropriate reliefs including specific

performance of the said MOU, as more particularly set out

hereafter.

6. In the premises, the Claimant states and submits as under:-

(NOTE:- Make all submissions on facts and law depending

on the facts and circumstances of the case. The

submissions in this precedent are only indicative)

(a) That the Respondent Society and its members have

duly resolved and granted redevelopment rights and

authority to the Claimant to carry out redevelopment

of the said property;

(b) That, in pursuance of the said Resolutions, the

Respondent Society has duly executed the said MOU

dated _________ conferring redevelopment rights

thereunder in favour of the Claimant, and the

Respondent Society and all its members are bound by

the terms and conditions stipulated therein;

(c) That the said MOU dated __________, though

termed/titled as a "Memorandum of Understanding", is

a concluded contract between the Claimant and the

Respondent. All the material terms of the agreement

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ARBITRATION

between the Claimant and the Respondent have been

agreed upon, concluded and set out in the said MOU;

(d) That the said MOU is not merely a construction

contract, but a contract whereby rights are created in

the said property in favour of the Claimant. This is

evident from the clauses of the said MOU whereby it

has been agreed that the Claimant shall be, as

consideration for providing permanent alternate

accommodation, entitled to construct and sell in the

open market, flats/commercial premises in the second

building to be constructed on the said property (the

free sale component) and the Claimant is entitled to

sell and appropriate the entire proceeds thereof

without rendering any accounts to the Respondent.

Further, under the said MOU, the Respondent has

agreed to admit the purchasers of the free sale

component as members of the Respondent Society.

Thus, it is submitted that the said MOU transfers

rights in the said property in favour of the Claimant

herein;

(e) That in view of the fact that the said MOU creates

rights and interest in favour of the Claimant in the

said property, the said MOU is capable of specific

performance;

(f) That the execution of the Development Agreement

contemplated under the said MOU was only to

incorporate therein, the said agreed terms and

conditions of the development of the said property as

recorded in the said MOU and was to be executed

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ARBITRATION

between the parties as a formal document and to have

the same registered to enable the Respondent Society

to receive from the Claimant, the balance

consideration/corpus amount agreed to be paid by the

Claimant to them against its execution and was to be a

formal deed and could not affect the validity of the said

MOU. The same, at the highest, it is submitted was a

milestone to enable the Respondent to receive monies

from the Claimant. The same did not alter and/or

affect the rights created in favour of the Claimant. The

rights and obligations between the parties were clearly

delineated and crystallized under the said MOU;

(g) That the Claimant has performed its obligations under

the said MOU by taking various steps, including

payment of various sums to the Respondent; making

applications for obtaining necessary permissions and

sanctions; and expending considerable sums of money

in respect of the said redevelopment. Furthermore, the

Respondent Society has itself accepted the said MOU

and acted pursuant thereto, inter alia, by accepting the

payment and encashing the initial sum of Rs.

___________/- stipulated in Clause _____ thereof, as

well as receiving the sum of Rs. _____________/- paid

on _________ to prevent leakages in the said buildings.

Relying upon the said MOU, the Claimant has taken

steps and altered its position to its detriment as

aforesaid and therefore, the Respondent Society is

estopped from resiling from its obligations under the

said MOU;

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ARBITRATION

(h) The said MOU, entered into for valuable consideration,

is coupled with interest created in favour of the

Claimant in the said property. The Respondent having

acted under the said MOU by vesting the said rights

and interests thereunder in favour of the Claimant is

not entitled to resile from their obligations under the

said MOU;

(i) That the issuance of consent letters by the members of

the Respondent Society further shows that the parties

were not only aware of their respective rights and

obligations, but had also acted in furtherance thereof.

The consent letters issued by the individual members

in terms of the said MOU also constitute a binding

agreement and the Respondent Society cannot be

permitted to purportedly terminate the same. In any

event, consent once granted cannot be revoked;

(j) That under Clauses _____ and ____ of the said MOU,

the Respondent Society was, inter alia, required to

ensure that all the members vacated their existing

tenements and vacant possession of the said buildings

was to be granted to the Claimant to enable the

Claimant to demolish the same and reconstruct new

buildings on the said Plot. However, admittedly, as on

date, the Respondent Society has failed to hand over

vacant possession of the said buildings to the

Claimant. Thus, it is clear that the Respondent has

committed a breach of its obligations under the said

MOU.

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ARBITRATION

(k) Further, as a consequence of the breach on part of the

Respondent in handing over vacant possession of the

buildings, the Claimant has not been able to

appropriate permissions from the concerned

authorities for demolition and redevelopment of the

said buildings;

(l) As set out hereinabove, the Claimant has repeatedly

called upon the Respondent by its various letters to

comply with their obligation to hand over vacant

possession of the said buildings so as to facilitate the

redevelopment but the Respondent have failed to do

so. In light of the aforesaid failure of the Respondent,

and having regard to Clause _____ of the said MOU, the

Claimant cannot under any circumstances be faulted

for having been unable to commence and complete the

redevelopment process within the period specified in

the said MOU. As a matter of fact, the commencement

and completion of the said development was and is to

start only from the date of granting of the

Commencement Certificate by MCGM and upon all the

members of the Respondent Society vacating their

existing premises. The Respondent themselves being in

default of fulfilling their obligations were and are not

entitled to contend that the Claimant had neglected to

take any steps in performance of the said MOU. The

Claimant submits that there is no valid or justifiable

excuse/reason whatsoever for the Respondent Society

to have failed to obtain vacant possession of premises

from all its members and to deliver the same to the

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ARBITRATION

Claimant and/or to have executed the said

Development Agreement incorporating the terms of the

said MOU and to have received the said balance

corpus amount which the Claimant was always ready

and willing to pay. It was incumbent upon the

Respondent Society and its office bearers to ensure

that its members complied with the Resolutions

passed in meetings at which all the members were

present;

(m) That the Claimant further submits that under Clause

__ of the said MOU, it was clearly contemplated that a

Development Agreement would be forthwith executed

between the parties. However, despite numerous

requests and requisitions in this regard, the

Respondent Society has failed and neglected to

approve and execute the Development Agreement and

to get the same registered and thereby failed to fulfil its

obligation; The Claimant further states that, by a

plethora of letters addressed on __________,

__________, __________, __________, __________ and

__________ (all annexed hereto), the Claimant has

called upon the Respondent Society to approve and

finalise the Development Agreement so as to enable the

Claimant to proceed with the redevelopment project.

The fact that the Respondent had already started the

procedure for drafting of the said development

agreement has been admitted by the Respondent in its

letter dated __________ (being Exhibit __ hereto), and

hence there was no justifiable reason whatsoever for

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ARBITRATION

the Respondent to cause delay in finalising and

executing the said Development Agreement. The

aforesaid conduct on the part of the Respondent

constitutes breach of their obligations under the said

MOU;

(n) That from the aforesaid facts, it is clear that the

Claimant was and is always ready and willing to

comply with the terms of the said MOU, including the

requirement to complete the construction within the

agreed period from the date of obtaining vacant

possession of the said buildings. Till date, the

Claimant has complied with all its obligations under

the said MOU. It is the breach of the Respondent that

has prevented the Claimant from proceeding further

with the redevelopment process. The Claimant has

further been ready, willing and eager to execute the

formal Development Agreement with the Respondent

Society as also to pay to the Respondent, the balance

of the agreed corpus amount and also to furnish the

requisite Bank Guarantee contemplated thereunder, as

also to fulfil all the obligations on their part as per the

said MOU including making payment of the amounts

of the monthly rent as mentioned in Clause ____ of the

said MOU. Towards this end, the Claimant has

repeatedly assured the Respondent that the Claimant

was and is always ready and willing to take all

necessary steps for the redevelopment of the said

buildings including expressly stating so in its letters

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ARBITRATION

dated __________ and __________. (being Exhibits __

and __ hereto);

(o) It is pertinent to note that though the said purported

Resolution for the purported termination of the said

MOU is alleged to have been passed on __________, the

same was communicated to the Claimant by the

Respondent for the first time by their said letter dated

__________ (being Exhibit __ hereto), i.e. after the expiry

of a period of ______ months. From perusal of the said

purported Resolution, it is apparent that it is the

members of the present new Managing Committee,

who for extraneous consideration and with improper

motive and to sub-serve their own private ends and

gains, were purporting to undo what the earlier

Managing Committee had validly done and which was

binding on the Respondent Society. The attempt of the

new committee is to procure a new Developer and by

attempting to bribing and blackmailing the members of

“B” building by tempting them into accepting ______ sq.

Ft. additional area (without any cost) provided they

agreed to the new proposal suggested by them. It is

respectfully submitted that there being valid and

binding MOU between the parties, mere change in

Managing Committing members could not undo what

had binding effect on the Respondent Society.

7. In view of what is set out hereinabove, the Claimant states

and submits that the said purported termination of the said

MOU by the Respondent Society is illegal, null and void and

not binding on the Claimant. Accordingly, the Claimant is

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ARBITRATION

entitled to an order and declaration from this Hon’ble

Tribunal that the purported termination of the said MOU by

the Respondent vide the purported termination notice (being

Exhibit __ hereto) is illegal, wrongful and not binding on the

Claimant.

8. Further, as set out hereinabove, the said MOU is a

concluded contract between the parties and the same is

valid, subsisting and binding on the Respondent Society.

Accordingly, the Claimant states and submits that the

Claimant is entitled to an order and declaration from this

Hon’ble Tribunal that the said MOU is valid, subsisting and

binding on the Respondent.

9. The Respondent states and submits that under the said

MOU, rights are vested in favour of the Claimant and an

interest is being created in favour of the Claimant in respect

of the said property. Further, as set out hereinabove, a

perusal of the terms of the said MOU clearly show that the

Claimant has the right to sell the free sale component to

purchasers for consideration. In view of the settled legal

position, the said MOU is, therefore, capable of specific

performance. The Claimant further states and submits that,

as set out hereinabove, the Claimant has always been and is

ready and willing to perform its obligations under the said

MOU. The Claimant states that, from the date of execution of

the said MOU, the Claimant has complied with its

obligations thereunder. In fact, till date, the Claimant has

expended a sum of Rs. _________/- in relation to the

redevelopment of the said property under/pursuant to the

said MOU. Further, it is the Respondent who has breached

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ARBITRATION

its obligations under the said MOU, inter alia, by not

executing the Development Agreement and handing over

vacant possession of the said buildings to the Claimant,

despite being called upon by the Claimant several times.

Thus, it is clear that the Claimant has been and is even

today ready and willing to comply with all its obligations

under the said MOU. In any event, the Claimant is ready and

willing to perform its obligations under the said MOU

according to the true construction of the said MOU as may

be interpreted by this Hon’ble Tribunal. It is submitted that,

in view of the amendments to the Specific Relief Act, 1963

the Claimant is now entitled to specific performance as a

matter of right. Therefore, the Claimant would be entitled to

specific performance of the said MOU as it has always been

ready and willing to perform its part of the obligations and

satisfies all other ingredients required for the grant of

specific performance.

10. In view thereof, the Claimant is entitled to an Award from

this Hon’ble Tribunal directing the Respondent to specifically

perform the said MOU dated __________. Further, the

Claimant is also entitled to an Order from this Hon’ble

Tribunal directing the Respondent to do all such acts, deeds

and things that may be necessary to effectively perform the

said MOU, including by executing the Development

Agreement in terms of Clause ___ of the said MOU and by

handing over to the Claimant vacant and peaceful

possession of the said two Buildings “A” and “B” on the said

property described in the Schedule at Exhibit “A-1” hereto.

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ARBITRATION

11. Furthermore, the Claimant states and submits that the

conduct of the Respondent gives rise to a legitimate

apprehension that the Respondent intends to sell, transfer or

otherwise deal with the said property and the buildings

thereon to the exclusion and detriment of the Claimant. The

Claimant is, therefore, entitled to an order and permanent

injunction restraining the Respondent, its members, officers,

servants, agents or assigns, or any other person claiming by,

through or under it - (i) from in any manner selling,

transferring, alienating, dealing with or creating any third-

party rights in respect of and in the said property more

particularly described in Exhibit A-1 hereto including in the

said Buildings standing thereon; and (ii) from appointing any

person other than the Claimant as the Developer for

redevelopment of the said property.

12. The Claimant states that the claims made in the present

Statement of Claim arise out of the said MOU and therefore,

this Hon’ble Tribunal has jurisdiction to adjudicate the same

in terms of Clause ___ of the said MOU read with the said

Order dated _______ passed by the Hon’ble Bombay High

Court (being Exhibit __ hereto).

13. The Claimant submits that the cause of action in the present

Statement of Claim has arisen upon the purported wrongful

termination of the said MOU dated ______________ by the

Respondent Society, vide the said alleged Resolution dated

__________ which was communicated to the Claimant, vide

the termination letter dated __________. Therefore, no part of

the claim in the present Statement of Claim is barred by the

law of limitation.

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ARBITRATION

14. The Statement of Claim has been verified by

Mr.____________________, the __________ of the Claimant, who

is personally aware of the facts involved in the present

proceedings and is duly authorised to sign the same on

behalf of the Claimant.

15. The Claimant will rely upon documents; a list whereof is

annexed hereto

16. The Claimant, therefore, prays -

(a) That this Hon’ble Tribunal be pleased to declare that

the purported termination of the Memorandum of

Understanding dated _______ (being Exhibit __ hereto)

vide the purported termination notice (being Exhibit __

hereto) is illegal, wrongful and not binding on the

Claimant;

(b) That this Hon’ble Tribunal be pleased to declare that

the Memorandum of Understanding dated _________

(being Exhibit __ hereto) is valid, subsisting and

binding on the Respondent;

(c) That this Hon’ble Tribunal be pleased pass an Award

directing the Respondent to specifically perform the

Memorandum of Understanding dated __________

(being Exhibit __ hereto);

(d) That this Hon’ble Tribunal be pleased to pass an

Award directing the Respondent to do all such acts,

deeds and things that may be necessary to effectively

perform the Memorandum of Understanding dated

_______ (being Exhibit __ hereto), including – (i) by

executing the Development Agreement in terms of

Clause ___ of the said Memorandum of Understanding

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ARBITRATION

dated _______ (being Exhibit __ hereto); and (ii) by

handing over to the Claimant vacant and peaceful

possession of the said two Buildings “A” and “B” on the

said property described in the Schedule at Exhibit “__”

hereto;

(e) That this Hon’ble Tribunal be pleased to pass an order

of permanent injunction restraining the Respondent,

its members, officers, servants, agents or assigns, or

any other person claiming by, through or under it - (i)

from in any manner selling, transferring, alienating,

dealing with or creating any third-party rights in

respect of and in the said property more particularly

described in Exhibit A-1 hereto including in the said

Buildings standing thereon; and (ii) from appointing

any person other than the Claimant as the Developer

for redevelopment of the said property more

particularly described in Exhibit A-1 hereto;

(f) For the costs of the present Arbitral proceedings;

(g) For such other and further reliefs as this Hon’ble

Tribunal may deem fit in the facts and circumstances

of the present case.

Claimant
Advocates for the Claimant

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