Authority: High Court at Calcutta (Civil Appellate Jurisdiction)

Order Date: 24.09.2026

Case Overview

  • Appellant: Forum Projects Private Limited, developer of the residential complex "Atmosphere – The Luxurious Condominium" located at Municipal Premises No. 1001/A, Eastern Metropolitan Bypass, Kolkata.
  • Respondents: Gaurav Karnani and others (sub‑lessees of Apartment No. B‑205, East Tower) and third‑party owners of the two penthouses and the E‑Deck apartment (Mr. Rahul Saraf, Anvay Warehousing LLP, Dalmia Family Holdings LLP, Ms. Ambica Beri).
  • Lease: The premises were obtained on lease from Kolkata Municipal Corporation (KMC) by a deed dated 17.04.2010.
  • Building plan: Initially sanctioned on 06.06.2021 for B+G+35 floors; revised plan dated 05.11.2018 permitted two penthouses on the 36th and 37th floors and an additional "E‑Deck" level apartment on the first floor between the towers.
  • Sub‑lease: Apartment No. B‑205 (5th‑6th floors, East Tower) was sub‑let to the respondents by an indenture dated 23.09.2022.
  • Construction timeline: Main building completed December 2018; E‑Deck apartment construction started 07.11.2018 and substantially completed 11.12.2018 (partial completion certificate up to 35th floor); penthouses construction started ~12.07.2021 and were substantially complete by June 2024.
  • Transfers of units: E‑Deck apartment (E‑101) transferred to Ms. Ambica Beri on 09.02.2024; East Tower penthouse transferred to Mr. Rahul Saraf on 10.09.2021 and later to Anvay Warehousing LLP on 27.05.2024; West Tower penthouse sub‑let to Dalmia Family Holdings LLP on 16.02.2023.
  • Arbitration: Respondents filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 (Misc. Case (Arb.) No. 89 of 2024) on 21.12.2024 seeking injunctions against further construction and alienation of the penthouses and E‑Deck apartment. Interim order on 10.01.2025; final injunction order on 14.02.2025.
  • Appeal: Forum Projects appealed the arbitral order (FMAT (ARBAWARD) No. 11 of 2025) which was allowed by a Division Bench on 25.02.2025, leading to the appointment of Mr. Ajoy Krishna Chatterjee as sole arbitrator.
  • Statement of Claim filed by respondents on 22.04.2025 sought declarations of unauthorised construction, injunctions, demolition of the penthouses and E‑Deck apartment, and restoration of common areas.
  • Parallel RERA proceedings: Complaint filed before West Bengal RERA on 28.03.2025 against Forum Projects, Rahul Saraf, Vidyut Saraf, and Ajay Kumar Agarwal seeking cancellation of the project's RERA registration, black‑listing, and a monetary award of Rs 15,14,22,306/‑ with interest. RERA ordered inspection of the E‑Deck and penthouses on 23.04.2025; West Bengal Real Estate Appellate Tribunal affirmed on 02.01.2026.
  • Arbitration application under Section 17 (dated 05.02.2026) sought appointment of a surveyor/chartered engineer to inspect the E‑Deck and penthouses and restrain alteration of common areas. The arbitrator granted the surveyor appointment and the restraint.
  • The appellant challenged the arbitral order on grounds of non‑arbitrability (citing RERA and KMC Acts), lack of jurisdiction, non‑joinder of third parties, and procedural impropriety.
  • Respondents argued that the dispute is arbitrable, that the interim measures are neutral fact‑finding steps, and that the arbitrator correctly noted the jurisdictional objection while proceeding under Section 17.

Final Outcome

  • The Calcutta High Court dismissed the appeal, holding that the arbitrator’s interim measures under Section 17 were lawful and did not prejudice the pending jurisdictional objection under Section 16.
  • The court emphasized that the question of arbitrability and maintainability remains for the arbitral tribunal to decide in the final award.
  • All pending applications were disposed of; the interim order dated 05.02.2026 remains in force.

Topics: Arbitration, Real Estate, Court Decision