BEFORE THE LD.

SOLE ARBITRATOR
SHRI. AMRUT JOSHI
PURUSUANT TO ORDER DATED : 26th April 2023
IN THE HIGH COURT OF JUDICATRUE AT BOMBAY
ORDINARY ORIGINAL JURISDICTION
ARBITRATION PETITION NO 4101 OF 2023

IN THE MATTER OF:

Nehru Nagar- Ashirwad )

Co-operative Hsg.Society Ltd )
A Registered Co-Op Hsg. Society )
Under MCS Act bearing Registration No. )
B/O/M/(W.L/HSG(O.H)6248-91-92OF1992 )
Through its Chairman/Secretary )
Bldg.No.52, Nehru Nagar, Kurla East., )
Mumbai 400 024 ) ….Petitioner

VERUS

1. Mr.Rajendra Lad )
Through its Legal Heirs )

2. Mrs. Manali Rajendra Lad )

3. Mr.Abhimanyu Rajendra Lad )
4. Mr.Siddhant Rajendra Lad )
All Residents of Office No.2 Aradnana )
Vishram Nivas Shiv Shrushti )
Kurla East, Mumbai 400 024 ) ….Respondents

AFFIDAVIT IN REJOINDER TO THE REPLY FILED BY THE

RESPONDENT’S ON 17th JULY 2023:

MAY IT PLEASE YOUR HONOR:

I, Mr.Prashant More, Secretary of the Petitioner has read and

understood the contents of the reply filed by the Respondents
through its apparent POA ’s Holder’s on 17th July 2023 before this
Hon’ble Tribunal and as I am conversant with the facts and
circumstances of the Petition and issue, I am hereby filing this
rejoinder as under:

1. I say that, the Petitioner is shocked and surprised to see the

contents of the reply filed by the Respondents and nothing shall
deemed to deem to be accepted on behalf of the Petitioner for
any specific denial or traverse, until otherwise accept or
denied..

2. I say that, the Petitioner is surprised and fails to understand if

one Mr.Vishwanath Guruprasad Salian was the Power of
Attorney Holder indeed, of the Respondents herein, asthen
during the pendency of the Arbitration Petition as well as
Arbitration Application, despite having had to be represented
once before the Hon’ble High Court, did not pay heed has to
filenot filed such document / Power of Attorney on record
neither represented the Respondent therein but suddenly
choose to represent the Respondent before this Hon’ble
Tribunal, thus, the chain of events leads to suspicion in the eye
of Petitioner and the Petitioner states that the Respondents
have not approached this Tribunal with clean hands .

3. I say that, in the entire reply the Respondents fail to make out
prima facie case for the reliefs sought by them in their reply
and therefore, only on this sole ground the prayers sought by
Petitioner shall be granted.

4. I say that, in the reply filed by the Respondents, the case of

Respondents is that the present Arbitration Petition is not
maintainable and this Hon’ble Forum has no authority to
adjudicate the present dispute which is nothing but a failed
attempt to jeopardize and challenge the order of Hon’ble High
Court and directions issued by this Hon’ble Tribunal from time
to time.

5. I say that, the Respondents in their reply have challenged the

maintainability of the Arbitration proceedings without giving any
merits or by provand without providing iding any supporting
 documents in those regards, further that, there is not an iota of
evidence / supporting documents produced by the
Respondents, proving or supporting any averments made in
their reply and therefore, prima-facie there is no defense
available with the Respondents in the matter and thus, balance
of convenience is in favor of the Petitioner and alone, on this
ground, the prayers sought by the Petitioner may be granted
on the preliminaryprima-facie issue.

6. Now the Petitioner will deal with the reply of the Respondent in
para wise manner as below:

7. Reply to Para 1 to 4 : The Petitioners states that the contents

of Para 1 dorequire not require any specific traversecomments.
of the PetitionerThat, w, with respect to the contents of Para 2
the Ppetitioner states that the Respondents were duly served in
pursuance served pursuant to the orders of Hon’ble High Court
and one Mr. Manoj Mandvakar (Advocate) appeared initially on
10th April 2023 for Respondent No 1 i.e. M/s Abhimanyu
Developers and for Respondent No 2 i.e. Mr.Vishawanath Salian.
However, it is pertinent to note, thatan but at the relevant time
of hearing, never was once such ‘Power of Attorney’ apparently
been granted by ‘legal heirs’ of Respondent No 1, being Sole
Proprietor to the Respondent No 2, even mentioned, let alone
having brought as evidence or placed before the record of the
court did not disclose of any Power of Attorney being granted by
legal heirs of Respondent No 1 Sole Proprietor and hence, there
stands there was no locus of Respondent No 2 now.,
Tthereafter, Respondent No. 2 was directedsuppose to file their
its reply before Hon’ble High Court but on next date i.e. 21 st
April 2023, but conveniently, no one appeared for Respondent
No 1 and 2 and neither was there any representation on the
next date being thereafte,r on 26th April 2023 also no one
appeared for Respondent No 1 and 2 and on the same day since
there was no privity to contract with Respondent No 2 and
Petitioner, the Hon’ble High Court allowed Petitioner to delete
the name of Respondent No 2 from the Arbitration Petition and
Arbitration Application, accordingly to which the Petitioner
 complied. The above sequence of events has been duly
captured in the order passed by Hon’ble High Court in its order
dated 26th April 2023, the copy of order dated 26 th April 2023 is
marked and annexed herewith as “Exhibit A”. Iit is to imminent
to further state that the Petitioner’s advocates had sent an
email dated 2nd May 2023 to Adv.Manoj Mandvakar keeping CC
to this Hon’ble Tribunal informing about the preliminary
meeting on 6th May 2023 fixed by this Hon’ble Tribunal. The
Copy of email sent by Advocate of Petitioner to Advocate Manoj
Mandvakar dated 2nd May 2023 is marked and annexed
herewith as “Exhibit B”., Tthereafter, Advocate Manoj
Mandvakar replied on 4th May 2023, directly addressing to this
Hon’ble Tribunal and sought adjournment for preliminary
meeting.g ,T the said email of Advocate Manoj Mandvakar
washas been forwarded by this Hon’ble Tribunal to advocate for
Petitioner on 4th May 2023 and this Tribunal was pleased to ask
for the say on Petitione.r, Aaccordingly, the Advocate of
Petitioner concurred to the request made by the Respondent
advocate i.e. Advocate Manoj Mandvakar on 4 th May 2023 and
thereafter, this Tribunal was pleased to issue new directions
undevider its email dated 4th May 2023 directing Respondent to
file its reply by upto 22nd May 2023 and Claimant / Ppetitioner to
file its rejoinder by 10th June 2023 and fixed date for hearing
Section 17 application (originally section 9 petition) on 16 th June
2023. The emails exchanged on 4 th May 2023 collectively are
marked and annexed herewith as “Exhibit C- Colly”.

8. On 22nd May 2023 i.e. on last date when the Respondents were
supposed to file its reply, the Advocates for Respondent i.e.
Advocate Manoj Mandvakar informed Hon’ble Tribunal, slyly and
intentionally not without marking the Advocate for Claimant /
Petitioner in such email, about his inability to file reply as
Respondents does not seem to pursue the present petition and
were was not providinggiving him with instructions.
Subsequently, , this Hon’ble Tribunal was pleased to forward
the email communication dated 22 nd May 2023 of Advocate
Manoj Mandvakar to Advocates of Claimant/Petitioner and
directed the Claimants to serve the Respondents’s in person on
or before 3rd June 2023 and file theirits Affidavit of Service on or
 before 10th June 2023 and extended the time to file reply in the
matter by Respondents tillupto 12th June 2023 and rejoinder by
Claimants / Petitioner on or before 20th June 2023 and fixed the
hearing on 24th June 2023. The emails and correspondences
exchanged on 22nd May 2023 areis collectively marked and
annexed herewith as “Exhibit D-Colly”. Accordingly the
Claimant/ Petitioner advocate has served upon the Respondent
directly through Indian Post as per directions of this Hon’ble
Tribunal on 27th May 2023. The copies of Indian Postal Receipts
dated 27th May 2023 are is marked and annexed herewith as
“Exhibit E”.

9. On 10th June 2023 i.e. 2 days before the schedule day of filing
reply by Respondent , tThe Respondents, apparent POA holder
through theirits email directly informed to this Hon’ble Tribunal
seeking further time of 4 weeks time to file their reply which
was responded back by this Hon’ble Tribunal granting further
time tillupto 17th June 2023 to Respondents to file its reply and
accordingly Claimants/PetitonersPetitioners were directed to file
rejoinder byuntil 22nd June 2023 , Tthis Hon’ble tribunal also
sought email ids’s of the Legal heirs of Mr.Rajendra Lad from
the apparent POA holder , however the same has not been
provided to this Hon’ble Tribunal till date by the Respondent.
The Correspondence / Emails exchanged on 10 th June 2023 areis
collectively marked and annexed herewith as “Exhibit F-
Colly”.

10. On 17th June 2023, finally after seeking so many

adjournments under on one or other pretext the Respondents
through their POA holders filed their its reply. It can be seen
that Respondents haves always possessed the apparent POA as
annexed by them but till date failed to bring the same factual
aspect before the Hon’ble High Court or this Tribunal since filing
of the Petition till 17th June 2023 and sought adjournments
underon one or the other ground to delay this matter despite
the order dated 26th April 2023 of Hon’ble Bombay High Court.
Therefore, it is the conduct of Respondent which is delaying this
present petition from being heard on meritshearing and
evidently, suchas such Section 17 application isare of urgent in
 nature therefore, the same needs to be decided expeditiously.
Accordingly, y but this Hon’ble Tribunal has always followed
principal of natural justice and equity, time and again,
therefore it will be just and proper that the prayers prayed in
the petition by the Claimants may be granted.

11. In regards to Para 3 & 4 , the contents of these Para(s)

are totally denied by the Claimants/Petitioners and the Contents
of the Section 9 Petition / Section 17 Application areis deemed
to be repeated herein by the Claimant/Petitioner.
12.
13.
14. Reply to Para 5: The Claimants/Petitioner deniesy the
contents of this para and put the Respondents to strict proof
thereof.,I I say that, as per the proposal/plans submitted by the
so called architect Mr.R.S. Karnik (who was appointed without
any approval of General Body Meeting) dated 23 rd March 2010
to MHADA, the proposal enlists the construction of 60 New flats
in total i.e. Addition of 12 flats on current flat number 48
Tenements , the copy of proposed plan put up for approval
showing seeking proposed 60 flats is marked and annexed
herewith as “Exhibit G” and not for 4 flats on 7th Floor and one
Garage at ground floor as alleged in the reply by Respondent.,
Ffurther, I say that the contention of Respondent paying
Rs.10,00,000/- in total as price of F.S.I. is based on completely
false, fabricated and is a crystal clear hand-in-glove based
situation, on resolutions which haves already been challenged
by the members of the Claimant society members and whereby
on enquiry the same had been deemed to be invalid and ab-
initio. The Respondents claim that the current secretary of the
Claimant instigated new society members is absolutely false
and incorrect and the same is bad-in-law further, there is no
supporting documents provided by the Respondent to back
their allegations and claims in this Para.
15. Reply to Para 6: TheI deny the contents of this para are
denied in limine., I say that the question about the structure
being dilapidated has not been raised by the Claimant/Petitioner
in the present dispute hence, there is no such report being
attached , the present issue before this Hon’ble Tribunal is
 about the contractual liability and performance of obligation by
the Respondent since 2010 onwards till date. I say that,
categorically there is no progress on the site and Respondent
grossly failed to take steps in respect of construction further the
Respondent has been hand-in-gloves with erstwhile managing
committee of the Claimant society having endeavored tried to
cheat and neglect the interest of Claimant society and
therefore, the Claimant society on the knowledge of these
aspects and factual background had rightly terminated the
Development Agreement and POA given to the Respondent i.e.
Abhimanyu Developers. It is further to state that the
Respondent as hand in glove with erstwhile managing
committee of the Claimant Society did not follow the procedure
of GR dated 3.01.2009.

16.Reply to Para 7 & 8: I say that the averments made in

contents of these Para(s) are baseless, false and without the
application of mindwrong. , I say that the Petition categorically
has averments made out against the Respondent in addition to
bringing the factual aspect of cheating amongst the previous
managing committee members with the Claimant Society in
connivance with Respondent. The issues raised by Respondent
in these Para(s) has no bearing to continue the progress of the
Development work at site. The Respondent failed to provide any
supporting document to prove their allegation and their conduct
to show sincere efforts in the spirit of the Development
Agreement. The unfortunate delay of 13 years has not only
caused mental trauma on the members of the Claimant society
but also caused irreparable loss of money and prestige of the
Claimant society for which the Claimant is entitled to seek
liquidated damages. The Claimants therefore haves rightly
terminated the Development Agreement and POA given to the
Respondent.

17.Reply to Para 9 ,10 and 11 : I deny Tthe contents of these

Para(s) are denied in toto., I say that Mr.Lad has failed to
complete his obligations under the Development Agreement
from time to time and as on date, it is not the case of
Respondent that, they have even paid the members of the
 Claimant society in full, as per their admission in this reply.y,
Ffurther Erstwhile Committee members are not required to be
party to this Proceedings as sought by the Respondent and as
such on the present petition is not illegal as alleged by the
Respondent. It is further to state that in AGM dated 03 rd January
2010, the proposal of Respondents wasere rejected by Majority.

18.Reply to Para 12: It is to state that in AGM dated 03 rd January

2010 the proposal of Respondents wasere rejected by Majorityy.
That,, the development agreement and POA has already been
cancelled by the Claimant/Petitioner.

19.Reply to Para 13 & 14 : I say that, there is no proof of

payment shown by Respondents. , Ffurther that,even on the face
of it if the contents of this para areis deemed to be true, till date
the Respondents haves failed to pay full consideration as well as
commence the actual work on site hence, the
Claimant/Petitioner has rightfully terminated the Development
Agreement and POA. The claim that it was joint decision of
AGM / SGM of the Claimant / Petitioner society is denied in toto.

20.Reply to Para 15: I say that, there is no proof of making any

payment of Rs.2,00,000/- as alleged by the Respondent, further
no payment was received prior to signing of Development
Agreement.

21.Reply to Para 16 & 17: I say that, the Claimant / Petitioner

society once again on the cost of reprepetition,eating deny
receipt of Rs.4,50,000/- as alleged and the Claimant/Petitioner
has disclosed full discloser in the petition about the payment
received from Respondent thus the contents of this para is
denied.

22.Reply to Para 18 & 19: I say that, the Respondent is mis-

interpreting the clause 26 of Development Agreement and the
contention of the Respondent is misplaced. I further say that the
 Claimant / Petitioner has borne more losses thaen the amount
allegedly claimed to be paid by the Respondent and moreover
the admission of Respondent to go for arbitration at any junction
is against the spirit of the Development Agreement and dispute
resolution mechanism,consequently, it further throwing light on
the conduct of Respondent which only gives impression that
Respondent does not value the law and court’s.

23.Reply to Para 20, 21, 22 & 23: I say that, the Claimant /
Petitioner has rightfully terminated the Development Agreement
and POA , further it is important to note that the
Claimant/Petitioner has brought on record the true and correct
story and has not mislead the Hon’ble Bombay High Court or this
Hon’ble Tribunal and as such no loss has occurred to
Respondent as they were entitled to enjoy the benefit of the
Development Agreement if the Respondent would had followed
the proper procedure and has not become hand-in-glove with
erstwhile managing committee of the Claimant/Petitioner to do
illegal acts as listed out in petition / application. I say that, there
are categorical allegations against the Respondent in petition /
application and this Hon’ble Tribunal has absolute jurisdiction to
try and entertain the dispute as per the Orders of Hon’ble
Bombay High Court.

24.Reply to Para 24,25 & 26 : I say that, the Petition /

Application for arbitration filed by Claimant/Petitioner is legal
and valid and the Respondent failed to point out any fabricated
document made out by the Claimant/Petitioner as alleged and
justified cause of action has already been pointed out to Hon’ble
Bombay High Court and the balance of convenience is in favor of
Claimant/Petitioner and not of Respondent as alleged and
therefore the prayers asked by the Respondent must not be
granted.

25.I say that, in the light of the events, circumstances, grounds

mentioned hereinabove as well as in main petition/application
the interim reliefs sought by the Claimants/ Petitioner must be
granted to stop any further losses or damages to the
 Claimant/Petitioner further to secure the Claimant/Petitioner so
as Respondent may not be able to create any third party right.

Dated this 22nd June 2023

Advocate for the Claimant/Petitioner

Claimant/Petitioner
Nehru Nagar
Ashirwad
CHS Ltd through its
Chairman /
Secretary

VERIFICATION

I, Mr. Prashant More, Aged- 51 Years, Indian Inhabitant, Residing at:

Nehru Nagar- Ashirwad CHS Ltd. Bldg. No.- 52, Room No.- 508, 'B'
Wing, Nehru Nagar, Kurla (E), Mumbai, the Authorized
Representative of the Petitioner Society abovenamed, do hereby
declare on solemn affirmation that whatever stated above in the
foregoing paragraphs of the Affidavit is true and correct to the best
of my knowledge belief and information which I believe to be true
and
correct. I also state that all the contents in the paragraphs of the
above Affidavit are in accordance with instructions by the
Claimant/Petitioners and the same have been explained to me in
Marathi and nothing material has been concealed therefrom.

Solemnly declared at Mumbai )

On this 22nd June 2023 )

Claimant/Petitioner
Nehru Nagar
Ashirwad
CHS Ltd through its
 Chairman /
Secretary
Identified by me,
Advocate for Claimant/Petitioner

Chauhan & Associates

Advocates for Petitioner