Authority: High Court of Judicature at Bombay

Order Date: October 1, 2026 (Reserved September 30, 2026)

Case Overview

  • Parties: Applicant – Zoroastrian Radih Society (charitable trust registered under the Societies Registration Act, 1860 and Bombay Public Trusts Act, 1950); Respondent – various Behramshah Shroff Building Co‑operative Housing Societies Limited (building numbers 2,3,4,5,6,7,8,9) registered under the Maharashtra Co‑operative Societies Act, 1960.
  • Nature of Proceedings: Eight Arbitration Applications (Nos. 427, 383, 384, 385, 386, 387, 390 and L‑24556 of 2026) filed under Section 11 of the Arbitration and Conciliation Act, 1996 seeking appointment of a Sole Arbitrator.
  • Background: The Trust owns the larger property at Behram Baug Parsi Colony, Oshiwara, Mumbai and constructed residential buildings for the Zoroastrian community. On 18 May 1999, the Charity Commissioner sanctioned the Trust to complete construction and sell flats to needy members. Individual Agreements for Sale were executed with flat purchasers, containing Clause 36 mandating arbitration for disputes.
  • Disputed Issues: (i) Respondent’s failure to execute the lease deed; (ii) non‑payment of ground lease rent for over two decades; (iii) non‑payment of administrative, maintenance, and parking charges; (iv) alleged unauthorized use of open spaces and parking areas.
  • Correspondence: Between 23 Nov 2020 and 5 May 2026, the Trust sent multiple letters and notices demanding payment. On 4 Oct 2023, the Trust invoked Clause 36 and nominated Advocate Aksh Doctor as Sole Arbitrator. Respondent’s reply on 26 Oct 2023 denied arbitration, arguing the Society was not a signatory to the Agreements.
  • Consumer Forum Matter: The Trust had filed Interim Application No. 5157 of 2023 before the NCDRC (Consumer Complaint No. 1326 of 2016) on 19 Apr 2023, seeking Rs. 11,75,190 plus interest or alternatively Rs. 52,56,720, along with parking charges of Rs. 600 per month and administrative/security charges of Rs. 3,04,920. The Trust later claimed a total of Rs. 72,36,564 in the arbitration petition.
  • Objections Raised by Respondent: (a) Pending consumer proceedings under the Consumer Protection Act, 1986; (b) Society’s non‑signatory status to the Agreements for Sale.

Reasoning and Findings

  • The Court accepted the applicant’s undertaking (via Advocate Cherag Balsara) to withdraw Interim Application No. 5157 of 2023, thereby removing the risk of parallel proceedings on the same monetary claims.
  • The Court held that the mere existence of a pending consumer case does not preclude arbitration where the parties have elected arbitration and the applicant has withdrawn the consumer claim.
  • Relying on Supreme Court judgments (M. Hemalatha Devi v. B. Udayasri) and the Bombay High Court’s decision in Shri Shivranjan Towers Sahakari Griha Rachana Sanstha Maryadit, the Court rejected the argument that the Society, not being a signatory, cannot be bound by the arbitration clause.
  • The Court emphasized that the Society was formed by the same flat purchasers who executed the Agreements; thus the Society represents their collective rights and obligations, making the arbitration clause applicable.
  • The Court concluded that there is a sufficient basis to appoint a Sole Arbitrator under Section 11(6‑A); the merits of the monetary claims (Rs. 59,70,723 or Rs. 72,36,564) are for the arbitrator to determine.

Final Outcome

  • Appointment: Mr. Vikramjit Garewal, Advocate, is appointed as the Sole Arbitrator.
  • Office Address: 102, Oval House, British Hotel Lane, Kalaghoda, Fort, Mumbai – 400023.
  • Procedural Directions:

1. A copy of this order to be communicated to the Sole Arbitrator by the petitioners within one week of upload.

2. The Sole Arbitrator must forward the statutory State of Disclosure under Section 11(8) read with Section 12(1) within two weeks of receipt.

3. Parties to appear before the Arbitrator on a date to be fixed, providing functional email addresses and phone numbers; email service will constitute valid service.

4. All arbitral costs and fees to be borne equally by the parties, subject to the final award.

5. The petitions filed under Section 9 are converted into an application under Section 17 and will be dealt with by the Sole Arbitrator.

  • The order expressly states that no merit determination is made; all issues remain open for adjudication by the arbitrator.

Topics: Arbitration Appointment, Cooperative Housing Dispute