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BEFORE THE LD. SOLE ARBITRATOR

MR. SHANAY SHAH, ADVOCATE

In the matter of arbitration between:

Subhash Nagar Chembur Dnyandeep C.H.S. Ltd.
…Claimant / Resp. in Counter Claim
And

G.A. Builders Pvt. Ltd. …Respondent / Counter Claimant

Application of the Respondent for Striking off Evidence

1. The Respondent states and submits the deposition of Mr. Thomas George K,

witness of the Claimant as contained in his Affidavit in Lieu of Examination in

Chief dated 5th January 2023 contains various material not forming evidence,

capable of being adduced in accordance with the principles of Order XVIII R.4

and the principles of the Indian Evidence Act, 1872, being matter that is

irrelevant, inadmissible in evidence, in the nature of arguments, submissions,

reproduction of clauses, prayers and / or heresay as more particularly set out in

the schedule hereinbelow.

2. In these premises the Respondent submit that it is just, necessary and equitable

that this Hon’ble Arbitral Tribunal be pleased to pass an Order and direction

that the evidence / deposition of Mr. Thomas George K, witness of the Claimant,

as set out in the schedule hereto be struck off and / or ignored.

3. The Respondent accordingly prays:

(a) that this Hon’ble Arbitral Tribunal be pleased to pass an Order and

direction that the evidence / deposition of Mr. Thomas George K,

witness of the Claimant contained in this Affidavit in Lieu of

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examination in Chief dated 5th January 2023, to the extent set out in the

schedule hereto be struck off and / or ignored;

(b) for further and other reliefs as this Hon’ble Arbitral Tribunal may deem

fit and proper in the facts and circumstances of the present case.

Dated this 28th day of January 2023

For M/s. AVP Partners

Advocates for the Respondent

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Schedule

i. In Paragraph 9 - “I say that the respondent has raised a belated defence which
is an afterthought in their amended statement of defence that under a
development agreement dated 03rd December, 2009, the members of the
claimant were required to vacate their premises only on receiving the notice
from the respondent and thereafter the claimant will be entitled to rent/
compensation. In this regards, the claimant may point out clause 2(c) of the
development agreement, which provides that the members of the claimant
society will have to vacate their respective tenements and have an alternate
rented accommodation within 30 days from intimation received from the
developer/ Respondent. Therefore, firstly the said clause provides for “an
intimation” and not “a notice”, as contended by the respondent. Secondly. If
the members of the claimant society had not vacated their respective tenement,
as claimed there is no question of members of the claimant society executing
leave and license agreements for alternate accommodations with different
licensors. Thirdly, there is no question of respondent paying to the member of
the claimant rent/compensation for occupying alternate accommodations.”

ii. In Paragraph 16 on the tenth line - “Satisfied with the decision of the Claimant.”

iii. The entirety of Paragraph 18 - “18. I say that the Claimant learnt that the
Respondent had caused stoppage of the process of soil testing in respect of other
Societies owning leasehold rights of the adjoining/adjacent plots of land. These
Societies, like the Claimant, after termination of respective Development
Agreements with the Respondent had entered into fresh Development
Agreements with a new Developer. I further learnt that these bouncers, apart
from stopping the work of soil testing as stated above had physically assaulted
the members of one of the said Societies. In view of the conduct displayed by the
Respondent of taking law in their own hands including threats of dire
consequences, etc. the Claimant apprehended that the Respondent may adopt
all illegal means and measures to obstruct and interfere with the Redevelopment
of the said property of the Claimant by the new developer to the detriments of
the Claimant.”
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iv. In Paragraph 19 - “The arbitration clause reads as under:- “45. This agreement
shall remain in force till the Developers complete construction in its entirely
and the Developers shall have received the entire sales proceeds and the new
purchaser have been admitted as Members of the Society provided further that
in case of default from one of the parties hereto shall be referred to arbitration
under the provisions of the Arbitration & Conciliation Act, 1996 or the law
relating to arbitration for the time being in force in India and such arbitration
shall be conducted in accordance with the said Act and the Arbitration Award
shall be final and binding on all the parties or the other party shall be entitled
to seek for specific performance of this Agreement only, but shall not be entitled
to cancel and or terminate this agreement including the irrevocable Power of
Attorney.”

v. In Paragraph 23 - “The Respondent admitted payment of rents to the members

of the Claimant from 2009 till April, 2105. However, for the first time the
Respondent alleged that after taking the rents from the Respondent, members of
the Claimant did not hand over their respective tenements to the Respondent till
2015 due to which the Respondent could not start redevelopment work. The
Respondent further contended that Respondent had no alternative but to stop
giving rents to the members of the Claimant since some of the members had not
vacated their old tenements in the said building. The Respondent admitted that
they were obliged to pay rents to the members of the Claimant till handing over
possession of permanently constructed premises to the members and that
Respondent defaulted in payment of rents since July 2015. The said defence
taken by the Respondent is bogus and devoid of merit in as much the Respondent
had not complained regarding members of the Claimant not vacating their
respective tenements in the said building.”

vi. In Paragraph 23 - “In fact, even after the receipt of three notices/letters calling
upon the Respondent to complete redevelopment. The Respondent failed to
controvert the contents of the termination notice. The Respondent did not reply
to contend that delay was attributable to the Claimant and communicate to the
Claimant their readiness to complete the redevelopment project and pay arrears
of rent for the period from July, 2015. The Respondent raised no objections to
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the aforesaid public notices as well. In fact, the Respondent had been completely
silent and inactive and were making false grievances for the first time as an
afterthought. In the said reply, the Respondent attempted to justify the delay in
completion of development on also alleged factors stated therein. The
Respondent admitted that they were facing financial crisis and alleged
difficulties in implementation of development work of the said property.

vii. At the end of paragraph 23 - “… and inter alia stated that the Respondents were
guilty of material breaches of the said Development Agreement by not adhering
to the timelines mentioned for completion of construction. Moreover, as there
was gross delay in completion of the redevelopment despite repeated reminders,
the Claimant was justified in termination of the said Development Agreement.”

viii. In Paragraph 27 - “I say that under the Development Agreement dated 03rd
December 2009, the Respondent had agreed to provide to the Claimants, new
flats in the redeveloped building, free of cost and on ownership basis within a
stipulated time period. Under the said Development Agreement, the Respondent
secured from the Claimant society, the rights to construct additional flats, on
the said land by utilizing the development potential as permissible as per then
prevailing provisions of Regulation 33(5) of the Development Control
Regulations, 1991 and thereafter sell the additional free-sale flats to the
members of the public at the prevailing market price/value. Further, under the
Development Agreement, the Respondent had promised to pay monthly
compensation/rent towards temporary alternate accommodation for the
members of the Claimant. The members for the Claimant based on the said
promise, shifted to the temporary alternate accommodation until the new
building was constructed on the said land and the members of the Claimant
were rehabilitated therein. The Respondent were obliged to complete
redevelopment withing 24 months from handing over possession of the existing
tenements to the Respondent.”

ix. In Paragraph 28 - “ I say that had the Respondent discharged its obligations in
a timely manner as per the said Development Agreement, the members of the
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Claimant would have been rehabilitated in their new and bigger homes within
24 months of vacating their respective existing tenements.”

x. In Paragraph 28 - “This together with the fact that the Respondent even failed
to respond to the aforesaid letters calling upon to comply with the said
Development Agreement and public notices indicated that the Respondent were
not serious about and had no interest whatsoever in the completion of
redevelopment of the said property. In other words, that the Respondent had
abandoned the project. In such a situation, the Claimant and its members could
not have been expected to wait indefinitely and see the said building collapsing
as a result of it being in dilapidated and ruinous condition and risking their
members and that of their respective families. Thus, the Claimant were
constrained to terminate the said Development Agreement and Power of
Attorney.”

xi. The entirety of Paragraph 29 - “I say that the Respondent were not ready or
willing to perform their obligations under the said Development Agreement but
were deliberately and willfully acting in breach of its obligations under the said
Development Agreement since at least 2015. In these circumstances, the
Claimant are entitled to and had thus rightly terminated the said Development
Agreement, said POA and consent letters. Even after the Respondent became
aware and had knowledge of the termination of the said documents, the
Respondent took no steps to dispute or challenge the said termination or even
the appointment of the new Developer. Such conduct on part of the Respondent
established that the Respondent had admitted the contents of the termination
and had accepted their defaults and termination of the said documents. It is this
just and necessary that the Learned Arbitrator pleased to declare that the
Respondent have committed default of their obligations under the Development
Agreement dated 03rd December, 2009. The Claimant is further entitled to a
declaration that the documents i.e., the Development Agreement dated 03rd
December, 2009 and the Power of Attorney executed on 9th December, 2009
and the said Individual consent letters are validly terminated, cancelled and
revoked and that the said documents are ineffective and not enforceable or
binding upon the Claimant.”
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xii. The entirety of Paragraph 30 - “The Respondent have no means or interest to

complete the redevelopment of the societies of which they have acquired
development rights. This is apparent from the status of various projects since
the Respondent acquired the development rights. As far as the Claimant is
aware most of the projects are at a stand-still or in limbo for several years after
part construction due to illegalities committed by the Respondent, abandonment
of the project by the Respondent projects being embroiled in litigation or
arbitration proceedings, etc. The Claimant submit that the Respondent are only
interested to stall or block the redevelopment of the said property by new
developer with a view to create nuisance and extort monies. The members of the
Claimant society apprehend that the Respondent, may or through its
shareholders, directors, their servants, agents, or representatives create
obstacles and obstruct the development of the said land, by the Claimant or may
purport to create third party rights of some nature in relation to the said land
or any flat or part thereof to be constructed in the new building which was to
be constructed.”

xiii. The entirety of Paragraph 31 - “The Respondent may have represented to third
party purchasers that the project still continues to be held by the Respondent as
the Developers and may have executed allotment letters in respect of flats which
were proposed to be constructed in the new building in the project. The right to
put up any construction on the said land and sell any flat in any building to be
constructed on the said land and any other rights which were with the
Respondent pursuant to the said Development Agreement dated 03rd December,
2009, no longer remain with the Respondent pursuant to the termination of the
said Development Agreement and Power of Attorney dated 9th December, 2009
vide termination notice dated 28th October, 2020. It is thus imperative that the
Learned Arbitrator be pleased to pass permanent injunction and order
restraining the Respondent, their directors, representative, servants, agents and
all other persons claiming through them, directly and/or indirectly from acting
upon the development Agreement dated 03rd December, 2009, Power of
Attorney executed on 9th December 2009 and/or dealing with and/or
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transferring and/or assigning and/or creating third party rights of any nature
whatsoever in respect of the land admeasuring 721.48 square metres bearing
Survey No. 67 to 71 and CTS No. 829 (part) of village Chembur of which the
Claimant is the lessee, which property is situate lying and being at Subhash
Nagar Road. Chembur in Greater Mumbai and building thereon (since
demolished). It is further imperative that the Learned Arbitrator be pleased to
pass permanent injunction and order restraining the Respondent, their
directors, representative, servants, agents and all other persons claiming
through them, directly and/or indirectly claiming and/or deriving any benefits
arising from the Development Agreement dated 03th December, 2009 entered
into between the Claimant and the Respondent for the redevelopment of the land
admeasuring 721.48 square metres bearing Survey No. 67 to 71 and CTS No.
829 (part) of village Chembur of which the Claimant is the lessee, which
property is situated lying and being at Subhash Nagar Road, Chembur in
Greater Mumbai and building thereon (since demolished).”

xiv. The entirety of Paragraph 32 - “I say that as per the said Development
Agreement, the Respondent are liable to make payments of rents to the members
until the handing over the respective new premises in the new building.
Admittedly, as the Respondent failed to hand over possession of newly
constructed building withing the stipulated time and the delay was not
attributable to the Claimant and its members, the Respondent were liable and
in fact were paying enhanced rent as per the prevailing market rents as per
clause 2 (d) of the said Development Agreement until April, 2015. Admittedly,
the Respondent have not paid rents from May, 2015 and thus are liable to pay
to the Claimant on behalf of its 20 members rents as agreed under the said
Development Agreement for the months from May, 2015 till October, 2020 i.e.,
until the termination of the said Development Agreement per month per person
aggregating to an amount of Rs. 14,04,000/- [Rupees Fourteen Lakhs and Four
Thousand only] as per the prevailing market rates in terms of clause 2 (d) and
as depicted in the statement annexed at Serial No. 32 To the compilation of
documents. The same may be taken on record and marked in evidence. The
Claimants crave leave to refer to relevant documents to show that the rents are
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calculated as per prevailing market rates. Thus, the Claimant submits that the
Learned Arbitrator be pleased to direct the Respondent to pay to the Claimant
on behalf of 30 members rents payable under clause 2(d) of the said
Development Agreement from May 2015 till October 2020 i.e., till date of
termination aggregating to Rs. 4,21,20,000/- [Rupees Four Crore Twenty One
Lac Twenty Thousand only] along with interest at the rate of 18% p.a from the
date of filing the present claim till date of payment and/or realization as per
particulars of claim.”

xv. The entirety Paragraph 33 - “I submit that as per Clause 7 of the said
Development Agreement, the Claimant was entitled to claim liquidated
damages for the period of delay of completion of project at the rate of Rs. 5000/-
per week. As the Respondent have failed to complete the project within
stipulated time, the Claimant is entitled and the Respondent are liable to pay
liquidated damages at the rate of Rs. 5000/- per week for the period of delay
beyond 27 months from the date of handing over possession of the existing
building to the Respondent i.e., from February, 2012 till October, 20220 i.e.,
from the date of termination aggregating to an amount of Rs. 22,30,000/-
[Rupees Twenty Two lakhs Thirty thousand only] along with interest thereon at
the rate of 18% p.a from the date of filing of the present claim till payment/
realization thereon as more particularly set out in the statement annexed at
Serial No. 33 To the compilation of documents. The same may be taken on
record and marked in evidence. I say that the said amount claimed by the
Claimants as and by way of liquidated damages is a genuine and reasonable
pre-estimate of the liquidated damages caused to the Claimant and its members
due to delay in completion of the project within stipulated time. The aforesaid
loss and inconvenience caused to the members of the Claimant was
contemplated by the partied to the said Development Agreement at the time of
the execution of the said Development Agreement. It is thus imperative that the
Learned Arbitrator be pleased to direct the Respondent as per clause 7 of the
said development Agreement to pay to the Claimant liquidated damages of Rs.
5000/- per week from February, 2012 till October, 2020 (i.e., date of
termination) aggregating to an amount of Rs. 22,30,000/-[Rupees Twenty Two
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lakhs Thirty thousand only]or such other document as may be eventually

ascertained by the Learned Arbitrator along with interest thereon at the rate of
18% p.a. from the date of filing the present claim till payment/ realisation
thereon.”

xvi. The entirety of Paragraph 36 - “I say that in addition to the liquidated damages,
I say that the expenses/ costs towards repairs and maintenance incurred by the
members after shifting back to the old tenements are estimated at the rate of Rs.
5,00,000/- per member aggregating to Rs. 1,50,00,000/- [Rupees One Crore
and Fifty Lakhs only] for all 30 members. In section 9 petition, it is inadvertently
stated that part of the expenses was paid by the Claimant. After checking the
records, it is found that contribution was made entirely by the members of the
Claimant and no part of expense was borne or paid by the Claimant. In these
circumstances, the Claimant submits that the Learned Arbitrator be pleased to
direct the Respondent to make good the losses/ reimburse the expenses/ costs
incurred at the rate of Rs. 5,00,000/- per member aggregating to Rs.
1,50,00,000/- [Rupees One Crore and Fifty Lakhs only] to the Claimant on
behalf of 30 members along with interest thereon at the rate of 18% p.a. from
the date of filing of the present claim till payment/ realisation thereon. as more
particularly setout in at Serial No 34 to the compilation of documents. The same
may be taken on record and marked in evidence. The Claimant craves leave to
refer to and rely upon bills, invoices, receipts and other relevant documents
with regard to expenses/costs incurred as stated above.”

xvii. In Paragraph 37 from the eighth line - “Thus, the Respondent are liable to
compensate to the Claimant to the tune of Rs. 30,00,000/- (Rupees Thirty Lakhs
only) for severe inconvenience, hardships, mental harassment and agony
caused to the Claimant on a day-day basis and such further expenses/ costs as
the Claimant may claim at a later date. It is this imperative that the Learned
Arbitrator be pleased to direct the Respondent to compensation Rs. 30,00,000/-
(Rupees Thirty lakhs only) to the Claimant on behalf of 30 members or such
other sum as ascertained by the Learned Arbitrator along with interest thereon
at the rate of 18% p.a. from the date of filing of the present claim till payment/
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realisation thereon as more particularly setout in at Serial No 35 to the

compilation of documents. The same may be taken on record and marked in
evidence.”

xviii. The entirety of Paragraph 38 - “ I submits that it has established a strong case
for the reliefs set out hereunder. I say that the balance of convenience is entirely
in favour of the Claimant and against the Respondent. I say that in the event the
Learned Arbitrator does not grant the reliefs prayed for as under, irreparable
loss and damage will be caused to the Claimant. The Respondent had lost
interest in the project long ago and had in fact, abandoned the project. It is only
when the new Developer started taking steps in pursuance of the new
development with the Society, the Respondent are wrongfully interfering to
block/stall the development of the said property at the hands of the Respondent
to extort monies. I submits that the Respondent cannot be allowed to enjoy fruits
of its gross inaction, delay and negligence and illegal actions.”

xix. The entirety of Paragraph 39 - “In view of the facts as narrated above, the reliefs
prayed for, deserve to be granted to protect the interests of the members of the
Claimant. No prejudice would be caused to Respondent, if the reliefs are
granted, whereas great harm and prejudice would be caused to the Claimant
and its members who have been waiting for their new and bigger homes as
promised to them and who are suffering since 2009.”
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BEFORE THE LD. SOLE ARBITRATOR

MR. SHANAY SHAH, ADVOCATE

In the matter of arbitration between:

Subhash Nagar Chembur Dnyandeep Co-
operative C.H.S. Ltd.
… Claimant / Resp. in C.C.
And

G.A. Builders Pvt. Ltd.

… Respondent / Counter Claimant

APPLICATION OF THE RESPONDENT

FOR STRIKING OFF EVIDENCE
------------------------------------------------------
Dated this 28th day of January 2023

M/S. AVP PARTNERS

ADVOCATES FOR THE
RESPONDENT
301, 3RD FLOOR, JEHANGIR
BUILDING,
133, MAHATMA GANDHI ROAD,
FORT, MUMBAI 400 001