O.M.P.(I) (COMM.) 138/2026 Page 1 of 56

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 13.04.2026

Judgment pronounced on: 29.05.2026

+ O.M.P.(I) (COMM.) 138/2026

CONSCIENT INFRASTRUCTURE PVT. LTD.

.....Petitioner

Through: Mr. Dayan Krishnan, Senior

Advocate with Mr. Anirudh

Bakhru, Mr. Divyam Agarwal,

Mr. Ayush Puri, Mr. Ranvir

Singh Sisodia, Mr. Kanav

Madnani and Mr. Siddhant,

Advocates.

versus

MR. MAHESH KAPOOR & ANR.

.....Respondent

Through: Mr. Sandeep Sethi, Senior

Advocate with Mr. Manu Bajaj,

Ms. Parul, Mr. Krishna

Gambhir, Ms. Shreya Sethi and

Ms. Riya Kumar, Advocates.

CORAM:

HON'BLE MR. JUSTICE HARISH VAIDYANATHAN

SHANKAR

JUDGMENT

HARISH VAIDYANATHAN SHANKAR, J.

1. The present Petition, filed by Conscient Infrastructure Pvt.

Ltd.

1

under Section 9 of the Arbitration and Conciliation Act, 1996

2

read with Section 151 of the Code of Civil Procedure, 1908

3

, seeks

certain ad interim reliefs and directions against Mr. Mahesh Kapoor

1

Petitioner

2

A&C Act

3

CPC

O.M.P.(I) (COMM.) 138/2026 Page 2 of 56

and Mrs. Usha Kapoor

4

.

2. The disputes between the parties are stated to arise out of an

arrangement termed as “Binding Heads of Terms of the Proposed

Collaboration for Development of the land situated in the revenue

estate of Village Aya Nagar, Mehrauli, Delhi (Jhankar Banquet)”

dated 17.05.2023

5

, executed in relation to the development of the

land admeasuring approximately 6.76 acres situated at Revenue

Estate Aya Nagar, Mehrauli, Delhi

6

.

3. By way of the present Petition, the principal relief sought is a

restraint against the Respondents, their employees, agents,

representatives, or any person acting on their behalf, from creating any

lien, charge, encumbrance, or third-party interest of any nature

whatsoever over the said Collaboration Land during the pendency of

the proceedings.

4. The Petitioner further seeks an order restraining the

Respondents from obstructing, interfering with, or otherwise impeding

the Petitioner in the performance of its obligations arising under the

Binding HoTs concerning the aforesaid Collaboration Land. In

addition thereto, the Petitioner has prayed for ad-interim ex parte

protection in terms of the aforementioned reliefs, with a further

direction that such interim protection be continued upon issuance of

notice to the Respondents.

5. With the consent of parties, this matter has been taken up for

final disposal.

FACTUAL MATRIX:

6. The Petitioner is a private limited company incorporated under

4

Respondents

5

Binding HoT

6

Collaboration Land

O.M.P.(I) (COMM.) 138/2026 Page 3 of 56

the provisions of the Companies Act, 1956 and is engaged in the

business of real estate development.

7. The Respondents, who are husband and wife, are the joint

owners of the Collaboration Land. Being desirous of developing the

said Collaboration Land, the Respondents approached the Petitioner

for undertaking development thereof.

8. Pursuant thereto, the parties entered into discussions and

negotiations in relation to the proposed development of the

Collaboration Land, culminating in the execution of the Binding HoT.

9. Under the Binding HoT, the Respondents agreed to contribute

the Collaboration Land, while the Petitioner was to undertake

development of a Residential Group Housing Project / Mixed Land

Use Project or any other permissible project as may be agreed between

the parties. The Petitioner was vested with the responsibility for

obtaining the requisite sanctions and approvals in relation to the

proposed development.

10. The parties agreed to the revenue-sharing arrangement whereby

42.3% of the distributable revenue was to accrue to the Respondents

and 57.7% to the Petitioner. Additionally, all project costs were to be

borne by the Petitioner.

11. The Binding HoT further contemplated execution of a

Definitive Collaboration Agreement upon receipt of sanctioned layout

plans, subject to a maximum outer limit of 14 months from the date of

the Binding HoT. Further, Clause R of the Binding HoT contained an

arbitration agreement providing for reference of disputes to arbitration

seated at Delhi.

12. The Respondents, while executing the Binding HoT,

represented, inter alia, that they possessed a clear, marketable, and

O.M.P.(I) (COMM.) 138/2026 Page 4 of 56

unencumbered title to the Collaboration Land and that, apart from a

disclosed dispute relating to the placement of an exit gate concerning

M/s Fountainhead Motels Pvt. Ltd., no material litigation affecting the

Collaboration Land subsisted.

13. Pursuant to the execution of the Binding HoT, it is the case of

the Petitioner that it proceeded to undertake steps towards

implementation of the proposed project, including preparation and

submission of layout plans before the concerned authorities. The

requisite fee for the same was deposited with the Municipal

Corporation of Delhi

7

and the layout plans, duly signed by the

Respondents, were submitted on 03.07.2023.

14. During the course of processing the approvals, certain

additional requirements emerged, including procurement of approvals

from the Airports Authority of India

8

and a No Objection Certificate

from the Ministry of Defence, owing to the proximity of the

Collaboration Land to an Air Force Station.

15. It further transpired that a substantial portion of the

Collaboration Land fell within a specified distance from the Air Force

Station. Consequently, the layout/building plans required revision and

were thereafter resubmitted on 29.02.2024.

16. The Petitioner also undertook demolition of the existing

structure operating under the name “Jhankar Banquet”, which,

according to the Petitioner, was necessary for facilitating inspection

and processing by the relevant authorities. The Petitioner alleges that

the said process was delayed on account of requests made by the

Respondents for the postponement of demolition.

7

MCD

8

AAI

O.M.P.(I) (COMM.) 138/2026 Page 5 of 56

17. The Petitioner further asserts that a pending dispute concerning

the Collaboration Land involving M/s Fountainhead Motels Pvt. Ltd.

also requires resolution during the subsistence of the Binding HoT. It

is stated that the Petitioner was constrained to facilitate an amicable

settlement, which was reached on 11.03.2024.

18. Subsequently, the parties executed a First Addendum dated

06.05.2024 extending the validity of the Binding HoT till 17.08.2024.

19. It is the case of the Petitioner that during the relevant period, the

Standing Committee of the MCD, whose approval was necessary for

sanction of the layout plans, remained non-existent for a substantial

duration.

20. The Petitioner further relies upon the imposition of the Model

Code of Conduct during various elections as having contributed to

delays in the approval process.

21. Despite these impediments, the Layout Scrutiny Committee,

MCD

9

, comprising representatives of all concerned MCD departments

and one representative of Delhi Development Authority

10

, agreed to

recommend the project proposal for development of the Collaboration

Land as a Group Housing Project to the Standing Committee. This in-

principle recommendation was made subject to the submission of a

reverification report concerning certain areas under the recreational

plan as per the Zonal Development Plan of Zone-J under MPD-2021.

22. On 18.05.2025, the parties executed a Second Addendum

extending the validity of the Binding HoT till 17.08.2025. Under the

said Addendum, the Petitioner made further payments to the

Respondents and also agreed to pay a sum of Rs. 25 lakhs per month

9

LOSC

10

DDA

O.M.P.(I) (COMM.) 138/2026 Page 6 of 56

during the extended period.

23. Thereafter, a Third Addendum dated 05.08.2025 came to be

executed, extending the validity of the Binding HoT till 17.12.2025 on

substantially similar terms.

24. It is the case of the Petitioner that on 20.10.2025, the

Respondents‟ representative and son, Mr. Virat Kapoor, for the first

time disclosed to the Petitioner the existence of two pending

litigations concerning the Collaboration Land, being appeals filed

under Section 185 of the Delhi Land Reforms Act, 1954. The said

appeals were ultimately dismissed vide Judgment dated 18.12.2025.

25. Since the Third Addendum was nearing expiry, the Petitioner

circulated a draft Fourth Addendum seeking further extension till

17.04.2026. According to the Petitioner, the Respondents suggested

modifications to the draft and continued to assure the Petitioner that

execution of the addendum was a mere formality.

26. It is the Petitioner‟s case that, notwithstanding non-execution of

the Fourth Addendum, both parties continued to act in furtherance of

the Binding HoT even after 17.12.2025. The Petitioner continued to

pursue approvals with statutory authorities, including MCD and AAI,

and claims to have kept the Respondents informed of such

developments from time to time.

27. On 10.02.2026, representatives of both parties are stated to have

jointly appeared before the Commissioner, MCD, in relation to the

pending approvals concerning the project.

28. According to the Petitioner, by February, 2026, the process for

sanction of the layout plans had substantially progressed and only

final approval of the Standing Committee remained pending.

29. On 10.03.2026, the Respondents addressed a communication to

O.M.P.(I) (COMM.) 138/2026 Page 7 of 56

the Petitioner asserting that the Binding HoT had elapsed on

17.12.2025 and calling upon the Petitioner to reconcile financial

aspects between the parties.

30. Thereafter, on 25.03.2026, the Respondents remitted an amount

of Rs. 2,80,00,000/- to the Petitioner and reiterated their position that

the Binding HoT had lapsed.

31. Apprehending the creation of third-party rights in respect of

the Collaboration Land, the Petitioner issued public notices and

thereafter addressed a detailed communication dated 27.03.2026,

asserting that the Binding HoT continued to subsist and calling upon

the Respondents not to deal with the Collaboration Land in derogation

of the Petitioner‟s rights.

32. The Petitioner states that it has paid, in aggregate, a sum of

approximately Rs. 8 Crores to the Respondents under the Binding

HoTs and Addendums, comprising upfront payments of Rs. 3.12

Crores, further payments of Rs. 2.75 Crores, and monthly payments of

Rs. 25 lakhs from 17.02.2025 to 17.03.2026, in addition to incurring

substantial expenditure on consultants, professional fees, surveys, and

approval costs over a period of approximately two and a half years.

33. In the aforesaid factual background, and in apprehension of

imminent adverse consequences likely to prejudice its rights and

interests, the present Petition under Section 9 of the A&C Act has

been instituted seeking the grant of interim measures pending

adjudication of the disputes between the parties.

SUBMISSIONS ON BEHAL F OF THE PARTIES:

34. At the outset, learned senior counsel appearing on behalf of the

Respondents would raise two broad preliminary objections to the

maintainability of the present Petition. Firstly, it would be contended

O.M.P.(I) (COMM.) 138/2026 Page 8 of 56

that the Binding HoT neither constitutes a concluded nor a specifically

enforceable contract in the eyes of the law. Secondly, it would be

submitted that, in the absence of any prima facie enforceable

contractual right, no interim protection as sought by the Petitioner can

be granted under Section 9 of the A&C Act.

35. In respect of the first contention, learned senior counsel for the

Respondents would contend that the Binding HoT does not constitute

a complete, final and concluded contract capable of specific

enforcement in law. It would be submitted that the Binding HoT

merely records a preliminary commercial understanding between the

parties while consciously contemplating execution of subsequent

definitive documentation, inter alia, the proposed Collaboration

Agreement.

36. It would be submitted that the structure, language and scheme

of the Binding HoT itself demonstrate that the parties did not intend

the said document to operate as the exhaustive repository of their

rights and obligations. Learned senior counsel would contend that

several material facets concerning implementation of the project,

operational modalities, reciprocal obligations, regulatory compliances

and commercial structuring were consciously left to be subsequently

negotiated, crystallised and incorporated in the contemplated

Collaboration Agreement.

37. Learned senior counsel would further submit that the Binding

HoT neither transfers any present development rights nor creates any

vested proprietary or contractual interest in favour of the Petitioner.

Accordingly, the document merely contemplated a future

collaborative framework subject to execution of further agreements

and satisfaction of multiple contingencies.

O.M.P.(I) (COMM.) 138/2026 Page 9 of 56

38. In furtherance of the aforesaid submissions, learned senior

counsel for the Respondents would place reliance upon the Judgement

of this Court in Vijay Kumar vs. K.N. Chopra & Ors.

11

, to contend

that where the foundational document itself contemplates execution of

a subsequent Collaboration Agreement and leaves material

stipulations for future negotiation and crystallisation, no concluded

contract capable of specific performance comes into existence. A

similar reliance would be placed upon the Judgement of this Court in

Nikhil Kumar Anand vs. Hridey Vikram Bhatia & Ors.

12

.

39. In view of the foregoing submissions and the reliance placed, it

would be submitted that the Binding HoT, viewed in its entirety,

merely constituted a framework for future collaboration and not a

final, concluded and immediately enforceable development

agreement.

40. Learned senior counsel would, in this regard, specifically place

reliance upon Clauses C, D, E, F, G and J of the Binding HoT to

contend that crucial aspects concerning development obligations,

implementation modalities, commercial structuring, regulatory

compliances, timelines, approvals and operational responsibilities

were left to be comprehensively worked out subsequently under the

contemplated Collaboration Agreement.

41. Learned senior counsel would particularly emphasise upon

Clause O(b) of the Binding HoT to contend that even the pricing and

valuation mechanism concerning the apartments proposed to be

allotted or sold had not attained finality. According to the learned

senior counsel for the Respondents, certainty of consideration

11

2000 SCC OnLine Del 162

12

2026 SCC OnLine Del 1089

O.M.P.(I) (COMM.) 138/2026 Page 10 of 56

constitutes an essential ingredient of a concluded agreement relating to

immovable property and in the absence thereof, no enforceable

agreement can be said to exist.

42. Learned senior counsel appearing on behalf of the Respondents,

in furtherance of the aforesaid submissions, would place reliance upon

the Judgement of this Court in Aggarwal Hotels (P) Ltd. vs. Focus

Properties (P) Ltd

13

, to contend that where material and essential

terms such as consideration, parties, timelines and implementation

modalities remain uncertain or incomplete, no concluded agreement

capable of specific performance can be said to come into existence.

43. Learned senior counsel would additionally submit that the

continued circulation of draft addenda, proposed modifications and

negotiations regarding revised commercial terms itself demonstrates

the absence of consensus ad idem on several material aspects of the

proposed arrangement.

44. It would thus be contended that the Binding HoT falls within

the category of a mere “agreement to agree”, lacking certainty on

essential terms and consequently incapable of specific enforcement in

law.

45. Learned senior counsel appearing on behalf of the Respondents

would further contend that the present arrangement concerns a long-

term and technically complex real estate development project

involving continuous reciprocal obligations, procurement of statutory

approvals, coordination with multiple regulatory authorities,

construction obligations, commercial implementation and continuing

operational supervision.

46. It would therefore be submitted that enforcement of such an

13

1996 SCC OnLine Del 354

O.M.P.(I) (COMM.) 138/2026 Page 11 of 56

arrangement would necessarily require constant judicial supervision

and monitoring over an indefinite duration, thereby attracting the

prohibitions contemplated under Sections 14 and 41 of the Specific

Relief Act, 1963

14

.

47. In support of the aforesaid contention, learned senior counsel

for the Respondents would place reliance upon the Judgment of the

Hon‟ble Supreme Court in Vinod Seth vs. Devinder Bajaj and

Another

15

, to contend that arrangements involving continuing

obligations, uncertain or indeterminate terms, and acts dependent upon

future consensus between the parties are ordinarily not amenable to

specific enforcement. In furtherance of the said submission, reliance

would also be placed upon the Judgments of the Hon‟ble Supreme

Court in Gurbir Kaur vs. BDR Builders & Developers P. Ltd

16

, as

well as the decision of this Court in Davender Kumar Sharma vs.

Mohinder Singh & Ors.

17

.

48. To substantiate the further contention that agreements involving

continuous obligations and requiring constant or ongoing supervision

by the Court fall within the prohibitions contemplated under Sections

14(1)(b) and 14(1)(d) of the Specific Relief Act, learned senior

counsel for the Respondents additionally would rely upon the

Judgment of this Court in Prem Kumar Bansal vs. Ambrish Garg

18

,

as also the Judgment of the Hon‟ble Supreme Court in Her Highness

Maharani Shantidevi P. Gaikwad vs. Savjibhai Haribhai Patel &

Ors.

19

.

14

SRA

15

(2010) 8 SCC 1

16

2017 SCC OnLine Del 7737

17

2012 SCC OnLine Del 3688

18

2015 SCC OnLine Del 8758

19

(2001) 5 SCC 101

O.M.P.(I) (COMM.) 138/2026 Page 12 of 56

49. Learned senior counsel for the Respondents would further

contend that the subsequent conduct of the parties itself demonstrates

the absence of any concluded and enforceable contractual

arrangement. Reliance in this regard would be placed upon the

exchange of draft addenda, proposed modifications, negotiations

concerning revised terms and discussions relating to future

documentation, which, according to the Respondents, establish that

the parties themselves did not treat the Binding HoT as a complete and

final development agreement.

50. It would further be contended that the Respondents, vide

communication dated 25.03.2026, elected to treat the arrangement

between the parties as having come to an end and, in furtherance

thereof, proceeded to refund the amounts received under the Binding

HoT. According to the Respondents, such conduct clearly

demonstrates that no concluded and subsisting contractual relationship

survived between the parties, which could, in law, be made the subject

matter of specific enforcement.

51. In respect of the second aspect concerning the assertion that

interim relief under Section 9 of the A&C Act is not maintainable in

the facts of the present case, learned senior counsel for the

Respondents would submit that the present Petition under Section 9 of

the A&C Act is thoroughly misconceived and amounts to an indirect

attempt to secure specific performance of an alleged agreement which

is itself incapable of enforcement in law.

52. Learned senior counsel would submit that once the final relief

of specific performance itself is legally barred or seriously doubtful,

interim relief preserving such alleged rights cannot be granted and that

Section 9 of the A&C Act cannot be employed as a mechanism to

O.M.P.(I) (COMM.) 138/2026 Page 13 of 56

obtain, at an interlocutory stage, what would virtually amount to

enforcement of the alleged contract itself.

53. In support of the aforesaid submissions, reliance would be

placed upon the Judgement of the Hon‟ble Supreme Court in Arvind

Constructions Co. (P) Ltd. vs. Kalinga Mining Corporation & Ors.

20

,

wherein the Hon‟ble Supreme Court observed that exercise of powers

under Section 9 of the A&C Act remains governed by well-recognised

principles applicable to grant of interim injunctions and cannot be

exercised dehors the restrictions contained under the SRA. To support

this contention, further reliance would also be placed on the

Judgement of the Hon‟ble Supreme Court in Adhunik Steels Ltd. vs.

Orissa Manganese and Minerals (P) Ltd.

21

.

54. Learned senior counsel would further submit that the reliefs

sought by the Petitioner are squarely governed by settled principles

underlying Order XXXIX Rules 1 and 2 of the CPC and Order

XXXVIII Rule 5 of the CPC. It would be contended that the Petitioner

has failed to establish the triple test warranting the grant of an interim

injunction.

55. It would further be contended that the Petitioner is effectively

seeking a freezing order and protection akin to attachment before any

adjudication, without even satisfying the stringent requirements

governing such relief. Learned senior counsel would submit that there

is neither any pleading nor material demonstrating that the

Respondents are attempting to alienate assets dishonestly or defeat any

prospective arbitral award, and therefore no case under principles

analogous to Order XXXVIII Rule 5 CPC is made out.

20

(2007) 6 SCC 798

21

(2007) 7 SCC 125

O.M.P.(I) (COMM.) 138/2026 Page 14 of 56

56. Learned senior counsel appearing on behalf for the Respondents

would place reliance upon the Judgement of the Division Bench of

this Court in Ajay Singh vs. Kal Airways Pvt. Ltd. & Ors

22

, to contend

that while the powers under Section 9 of the A&C Act are broad, the

exercise thereof remains guided by well settled principles governing

interim injunctions and protective orders under the CPC, including

principles analogous to Order XXXVIII Rule 5 CPC.

57. Per contra, learned senior counsel appearing on behalf of the

Petitioner would vehemently contend that the Binding HoT constitutes

a “binding”, as the nomenclature itself suggests, and a concluded

commercial arrangement consciously entered into between

commercial entities with full knowledge of their respective obligations

and liabilities.

58. It would be submitted that the mere contemplation of the

execution of a rather elaborate additional Collaboration Agreement at

a subsequent stage does not dilute the binding nature of the

obligations already crystallised under the Binding HoT. Learned

senior counsel would contend that the law is well settled that where

parties intend to be bound and essential commercial terms stand

sufficiently settled, the contract does not become unenforceable

merely because a formal document remains to be executed.

59. Learned senior counsel for the Petitioner would further submit

that the Binding HoT specifically records the core commercial

understanding between the parties, including identification of the

Collaboration Land, the nature of the proposed development, the

financial obligations inter se the parties, security deposit

arrangements, exclusivity obligations, timelines and the overall

22

2017 SCC OnLine Del 8934

O.M.P.(I) (COMM.) 138/2026 Page 15 of 56

mechanism governing implementation of the project. It would

therefore be urged that all foundational and essential terms stood

sufficiently crystallised.

60. Learned senior counsel would further submit that Clauses C, D,

E, F, G and J relied upon by the Respondents merely contemplate

ancillary, procedural and implementation-related documentation

necessary for operationalisation of the project and cannot be construed

to mean that the foundational agreement itself was incomplete or non-

binding.

61. Learned senior counsel for the Petitioner would submit that

commercial arrangements, like the Binding HoT, involving large-scale

real estate development necessarily require subsequent technical

documentation, approvals, operational agreements and implementation

modalities, none of which dilute the binding nature of the principal

commercial arrangement already executed between the parties.

62. Insofar as Clause O(b) of the Binding HoT is concerned,

learned senior counsel would contend that the Respondents are

reading the said clause in isolation and dehors the overall scheme of

the Binding HoT.

63. According to the Petitioner, the consideration framework and

commercial mechanism between the parties stood sufficiently

identified and determinable under the terms of the Binding HoT itself

and therefore the agreement cannot be invalidated merely because

every component of pricing had not been numerically finalised at the

initial stage. It would also be submitted that in any real estate project

of such magnitude, such intricacies are always left open to be decided

in the future, closer to its completion and operation.

64. It would further be contended that even assuming certain

O.M.P.(I) (COMM.) 138/2026 Page 16 of 56

ancillary aspects remained to be operationalised subsequently, the

same would not render the entire arrangement void or unenforceable

where the essential commercial framework and reciprocal obligations

already stood concluded between the parties.

65. Learned senior counsel would additionally place considerable

reliance upon the subsequent conduct of the parties to demonstrate

that both sides consistently treated the Binding HoT as a valid,

operative and subsisting commercial arrangement.

66. In this regard, reliance would be placed upon the execution of

multiple addenda extending the validity and operation of the Binding

HoT from time to time, which, according to the Petitioner,

unequivocally establishes that the parties themselves proceeded on the

admitted footing that the arrangement was binding and enforceable.

67. Learned senior counsel would further submit that the Petitioner

continuously acted upon the arrangement and discharged its

obligations thereunder, including making substantial payments and

pursuing approvals and clearances for development of the

Collaboration Land over a prolonged period extending nearly thirty

months.

68. It would further be submitted that even immediately prior to

expiry of the third addendum, a draft fourth addendum for further

extension was exchanged between the parties and assurances were

extended on behalf of the Respondents that execution of the formal

addendum was merely procedural in nature.

69. Learned senior counsel would further contend that the

Respondents themselves continuously acted in furtherance of the

Binding HoT till as late as February, 2026, by participating in

meetings with authorities, signing documents submitted before

O.M.P.(I) (COMM.) 138/2026 Page 17 of 56

statutory authorities and negotiating terms of the proposed fourth

addendum, thereby unequivocally acknowledging the continued

subsistence and binding nature of the arrangement.

70. Learned senior counsel for the Petitioner would place particular

reliance upon the Respondents‟ own communication dated

25.03.2026, wherein the Respondents themselves expressly

acknowledged:

(i) The Heads of Terms dated 17.05.2023;

(ii) The extensions granted through multiple addenda;

(iii) The subsisting arrangement between the parties over an

extended duration; and

(iv) Refund of the security deposit in terms of the Heads of Terms

itself.

71. Learned senior counsel would therefore submit that the

Respondents, having consciously acted upon the Binding HoT over a

substantial duration, having derived benefits thereunder and having

permitted the Petitioner to incur substantial expenditure and undertake

extensive development-related activities, cannot now be permitted to

approbate and reprobate by contending that the arrangement was non-

binding or incomplete.

72. It would further be contended that the Respondents‟ plea

regarding uncertainty of terms is clearly an afterthought, raised only

after substantial performance had already taken place on both sides,

and the project had reached an advanced stage of approvals and

implementation.

73. Learned senior counsel appearing on behalf of the Petitioner

would further submit that the Binding HoT was not a mere

exploratory commercial understanding, but in fact created and

O.M.P.(I) (COMM.) 138/2026 Page 18 of 56

transferred valuable and enforceable commercial and development

rights in favour of the Petitioner, although falling short of formal

conveyance of title.

74. Learned senior counsel would further contend that the mere fact

that legal title in the property was not immediately conveyed does not

denude the Binding HoT of enforceability. It would further be

submitted that development and collaboration arrangements frequently

operate upon conferment of valuable development and commercial

rights without immediate transfer of ownership/title and are routinely

recognised as specifically enforceable.

75. In support of the aforesaid submissions, learned senior counsel

for the Petitioner would place heavy reliance upon the Judgement of

this Court in Grovy India Ltd. v. Balbir Singh

23

, to contend that

where a development agreement creates valuable rights in favour of

the developer in the property or constructed area, such arrangements

are capable of specific enforcement. It would further be submitted that

where an owner parts with valuable incidents of ownership and

confers substantive development rights upon a developer, it would be

difficult to hold that such an agreement is incapable of specific

performance.

76. It would additionally be argued that the Binding HoT expressly

contemplated execution of further definitive documents only in

furtherance and implementation of rights already created thereunder

and not as a condition precedent to creation of such rights.

77. Learned senior counsel would therefore submit that the Binding

HoT created valuable proprietary and commercial interests in favour

of the Petitioner capable of protection and enforcement in law and

23

2021 SCC OnLine Del 4783

O.M.P.(I) (COMM.) 138/2026 Page 19 of 56

consequently constitutes a valid and enforceable substratum for the

grant of interim protection under Section 9 of the A&C Act.

78. Learned senior counsel would further contend that the

Respondents‟ objections founded upon Sections 14 and 41 of the SRA

are wholly misconceived and proceed upon a restrictive pre-

amendment understanding of the law.

79. It would be submitted that, after the enactment of the Specific

Relief (Amendment) Act, 2018, the legislative scheme substantially

tilts in favour of the enforcement of commercial contracts and limits

the refusal of specific performance to narrowly construed statutory

exceptions.

80. In support of the aforesaid submissions, learned senior counsel

appearing on behalf of the Petitioner would place reliance upon the

Judgement of the Division Bench of this Court in Global Music

Junction Pvt. Ltd. v. Shatrughan Kumar @ Khesari Lal Yadav

24

, to

contend that the legislative intent post-2018 fundamentally favours

enforcement of consciously negotiated commercial obligations and

contractual certainty.

81. Learned senior counsel, placing reliance upon the said

judgment, would submit that, prior to the amendment, damages

constituted the ordinary rule while specific performance was treated as

an exception; however, the amended statutory framework reverses the

said position by substantially tilting the law in favour of specific

enforcement, subject only to limited statutory exceptions.

82. It would be contended that after deletion of the unamended

Section 14(1)(a) of the SRA, the mere availability of monetary

compensation can no longer constitute a standalone ground to refuse

24

2023 SCC OnLine Del 5479

O.M.P.(I) (COMM.) 138/2026 Page 20 of 56

specific performance and therefore, the Respondents‟ submission that

the Petitioner may be relegated to damages is contrary to the post-

amendment statutory framework recognised in the aforesaid

Judgement.

83. Learned senior counsel would additionally submit that the

present dispute concerns valuable development rights in immovable

property and a unique commercial opportunity incapable of adequate

monetary compensation and therefore preservation of the contractual

arrangement becomes necessary pending adjudication through

arbitration.

84. Learned senior counsel would thus contend that the Binding

HoT is fully capable of specific enforcement and consequently

constitutes a valid substratum for the grant of interim protection under

Section 9 of the A&C Act. It would be contended that the jurisdiction

conferred under Section 9 of the A&C Act is broad, equitable and

intended to preserve the efficacy of arbitral proceedings by

safeguarding the subject matter of dispute pending adjudication before

the learned Arbitral Tribunal.

85. Learned senior counsel would submit that Section 9 of the A&C

Act expressly empowers the Court to grant such interim measures as

may appear “just and convenient” and therefore the provision is

intended to secure the ends of justice and preserve the substratum of

arbitration. It would be contended that once a bona fide arbitral

dispute and a prima facie contractual relationship are demonstrated,

the Court possesses ample jurisdiction to grant protective reliefs

necessary to prevent the frustration of arbitral proceedings.

86. It would further be contended that the Court, while exercising

jurisdiction under Section 9 of the A&C Act, is not finally

O.M.P.(I) (COMM.) 138/2026 Page 21 of 56

adjudicating the maintainability of a claim for specific performance or

conclusively determining the enforceability of the underlying contract,

all of which properly fall within the domain of the learned Arbitral

Tribunal.

87. The Petitioner would further contend that the existence of

disputes regarding completeness, enforceability or interpretation of the

Binding HoT cannot by itself disentitle a party from seeking interim

protection under Section 9 of the A&C Act, particularly where refusal

of protection would result in frustration of arbitral proceedings or

irreversible alteration of the subject matter.

88. Learned senior counsel would additionally submit that the

Respondents are incorrectly seeking to equate the present proceedings

with a prayer for attachment before judgment under Order XXXVIII

Rule 5 CPC. It would be contended that the present Petition

fundamentally seeks preservation of the contractual and commercial

substratum forming the subject matter of arbitration and not recovery

of a money claim simpliciter.

89. Learned senior counsel would further submit that while the

Court may be guided by the underlying principles governing Orders

XXXVIII and XXXIX CPC, the powers under Section 9 of the A&C

Act are not constricted by rigid technical limitations applicable to

ordinary civil proceedings.

90. To fortify the aforesaid submissions, learned senior counsel for

the Petitioner placed heavy reliance upon the recent pronouncement of

this Court in GTL Infrastructure Ltd. v. S.C. Wadhwa and Sons

(HUF)

25

, contending that the powers under Section 9 of the A&C Act

are inherently broad and expressly encompass such orders as are

25

2025 SCC OnLine Del 2081

O.M.P.(I) (COMM.) 138/2026 Page 22 of 56

necessary to preserve and protect the subject matter of arbitration.

91. It would further be contended that denial of interim protection

at this stage would render the arbitral proceedings nugatory and

irreversibly prejudice the Petitioner, whereas the grant of interim

protection would merely preserve the subject matter pending

adjudication by the learned Arbitral Tribunal.

92. Learned senior counsel appearing on behalf of the Petitioner

would submit that time was never intended to constitute the essence of

the Binding HoT executed between the parties. It would be contended

that the nature of the transaction, the conduct of the parties and the

subsequent exchanges inter se the parties clearly demonstrate that the

timelines contemplated under the Binding HoT were merely

facilitative and directory in nature and not intended to automatically

extinguish rights upon expiry thereof.

93. It would further be contended that the execution of successive

addenda extending the validity and operation of the Binding HoT

itself constitutes a clear indication that strict adherence to timelines

had consciously been waived by the parties. Learned senior counsel

would submit that had time truly been intended to be of the essence,

there would have been no occasion for repeated extensions, continuing

negotiations or further performance after expiry of the original

timelines.

94. It would further be contended that the Respondents themselves

continued acting in furtherance of the Binding HoT even beyond the

original timelines, including participating in meetings with statutory

authorities, negotiating further extensions and exchanging draft

documentation. Learned senior counsel would therefore submit that

the Respondents, by their own conduct, unequivocally acknowledged

O.M.P.(I) (COMM.) 138/2026 Page 23 of 56

the continued subsistence of the arrangement and are consequently

precluded from contending that the Binding HoT stood extinguished

merely by efflux of time.

95. In support of the aforesaid submissions, learned senior counsel

appearing on behalf of the Petitioner would place reliance upon the

Judgment of the Hon‟ble Supreme Court in Hind Construction

Contractors v. State of Maharashtra

26

to contend that the question

whether time constitutes the essence of a contract is fundamentally

one of intention to be gathered from the contract as a whole and the

conduct of the parties.

96. Learned senior counsel would further place reliance upon the

Judgment of the Hon‟ble Supreme Court in N. Srinivasa v.

Kuttukaran Machine Tools Ltd

27

to contend that in agreements

concerning immovable property and allied development arrangements,

time is ordinarily not regarded as the essence of the contract unless

expressly and unequivocally stipulated otherwise.

97. Learned senior counsel would therefore submit that the

Respondents are precluded, both in law and equity, from contending

that the Binding HoT stood frustrated, extinguished or rendered

unenforceable merely upon expiry of timelines, particularly when the

Respondents themselves continued acting in furtherance of the

arrangement over a prolonged period of time.

98. In rebuttal to the submissions made by the learned counsel for

the Petitioner, learned senior counsel appearing for the Respondents

would submit that the timelines stipulated under the Binding HoT

constituted an integral and commercially fundamental component of

26

(1979) 2 SCC 70

27

(2009) 5 SCC 182

O.M.P.(I) (COMM.) 138/2026 Page 24 of 56

the arrangement and, therefore, time was clearly intended to be of the

essence of the contract.

99. It would be contended that the Binding HoT itself contemplated

execution of definitive agreements, fulfilment of reciprocal

obligations and achievement of specified milestones within stipulated

periods. According to the Respondents, the very incorporation of

successive timelines and validity periods demonstrates that the parties

intended expeditious culmination of the transaction and not an

indefinite or open-ended commercial arrangement.

100. Learned senior counsel would further submit that the necessity

of repeated extensions and addenda itself establishes that adherence to

timelines was treated as material by the parties. It would be argued

that had time not been significant, there would have been no occasion

for repeated formal extensions of the Binding HoT from time to time.

101. It would additionally be contended that the transaction concerns

a large-scale commercial real estate development involving substantial

financial exposure, market fluctuations, regulatory compliance, and

evolving third-party interests, where commercial certainty and timely

performance constitute the very substratum of the arrangement. In

support of the aforesaid submissions, learned senior counsel appearing

on behalf of the Respondents would place reliance upon the Judgment

of the Hon‟ble Supreme Court in Desh Raj & Ors. vs. Rohtash

Singh

28

.

102. Learned senior counsel appearing on behalf of the Respondents

would further place reliance upon the Judgement of the Hon‟ble

Supreme Court in Saradamani Kandappan vs. S. Rajalakshmi &

28

(2023) 3 SCC 714,

O.M.P.(I) (COMM.) 138/2026 Page 25 of 56

Ors.

29

, to contend that the traditional presumption that time is not

ordinarily of the essence in immovable property transactions stands

considerably diluted in modern commercial transactions involving

escalating property values and commercial certainty.

103. Learned senior counsel would submit that despite repeated

extensions and opportunities, the Petitioner failed to fulfil material

obligations contemplated under the Binding HoT, including

finalisation of definitive documentation and compliance with

commercial obligations within the agreed timelines. According to the

Respondents, a party repeatedly failing to adhere to agreed timelines

cannot subsequently seek equitable protection under Section 9 of the

Act.

104. It would further be contended that the Binding HoT itself

contemplated execution of a definitive Collaboration Agreement and

related documentation within stipulated periods and, therefore, the

arrangement remained contingent upon successful crystallisation of

the contemplated transaction within the agreed timeframe. Upon

failure thereof, no enforceable right survived in favour of the

Petitioner.

ANALYSIS:

105. This Court has heard the learned senior counsel appearing on

behalf of the parties and, with their able assistance, perused the

material placed on record and the Judicial precedents passed across

the Bar.

106. At the outset, this Court notes that it is conscious of the limited

compass of its jurisdiction under Section 9 of the A&C Act. The

29

(2011) 12 SCC 18

O.M.P.(I) (COMM.) 138/2026 Page 26 of 56

power conferred thereunder is interim and protective in nature,

intended to preserve the subject matter of the arbitration and to

safeguard the efficacy of the arbitral process. At this stage, the Court

is required only to examine whether the well-settled parameters

governing the grant of interim relief, namely, the existence of a prima

facie case, the balance of convenience, and the likelihood of

irreparable injury, stand satisfied for the purposes contemplated under

Section 9 of the A&C Act. In ArcelorMittal Nippon Steel (India) Ltd.

v. Essar Bulk Terminal Ltd.

30

, the Hon‟ble Supreme Court has

expounded upon the contours of such jurisdiction in the following

terms:

“88. Applications for interim relief are inherently applications

which are required to be disposed of urgently. Interim relief is

granted in aid of final relief. The object is to ensure protection of

the property being the subject-matter of arbitration and/or

otherwise ensure that the arbitration proceedings do not become

infructuous and the arbitral award does not become an award on

paper, of no real value.

89. The principles for grant of interim relief are (i) good prima

facie case, (ii) balance of convenience in favour of grant of interim

relief and (iii) irreparable injury or loss to the applicant for interim

relief. Unless applications for interim measures are decided

expeditiously, irreparable injury or prejudice may be caused to the

party seeking interim relief.

90. It could, therefore, never have been the legislative intent that

even after an application under Section 9 is finally heard, relief

would have to be declined and the parties be remitted to their

remedy under Section 17.

91. When an application has already been taken up for

consideration and is in the process of consideration or has already

been considered, the question of examining whether remedy under

Section 17 is efficacious or not would not arise. The requirement to

conduct the exercise arises only when the application is being

entertained and/or taken up for consideration. As observed above,

there could be numerous reasons which render the remedy under

Section 17 inefficacious. To cite an example, the different

arbitrators constituting an Arbitral Tribunal could be located at far

away places and not in a position to assemble immediately. In such

30

(2022) 1 SCC 712.

O.M.P.(I) (COMM.) 138/2026 Page 27 of 56

a case, an application for urgent interim relief may have to be

entertained by the Court under Section 9(1).”

(emphasis supplied)

107. This Court is not presently called upon to render a final

adjudication on the enforceability of the Binding HoT, nor to

conclusively determine whether the Petitioner would ultimately be

entitled to a decree of specific performance, as such issues would

appropriately fall within the exclusive domain of the learned Arbitral

Tribunal. The scope of the present examination is, therefore, confined

to assessing whether, upon application of the settled triple test

governing grant of interim measures, an arguable and bona fide

arbitral claim exists warranting preservation of the subject matter

pending adjudication of the disputes through arbitration.

108. The principal objection raised on behalf of the Respondents is

that the Binding HoT is neither a concluded nor specifically

enforceable contract and consequently cannot constitute the

substratum for the grant of interim protection. This Court is, however,

unable to accept the aforesaid submission.

109. A perusal of Clauses B, C, D, E, F, G and J of the Binding HoT

prima facie demonstrates that the parties had consciously identified

the Collaboration Land, recorded the broad development framework,

stipulated reciprocal obligations, financial commitments, security

deposit arrangements, exclusivity obligations and implementation

structure governing the project. The Binding HoT, therefore, cannot at

this stage be reduced to a mere exploratory arrangement or

unenforceable expression of future intent.

110. The contention of the Respondents that the Binding HoT merely

contemplated execution of a future Collaboration Agreement and

therefore lacked contractual finality also does not commend

O.M.P.(I) (COMM.) 138/2026 Page 28 of 56

acceptance at this stage. Commercial transactions of the present

nature, particularly large-scale real estate development arrangements,

frequently contemplate subsequent technical and operational

documentation. The mere existence of a contemplated future

Collaboration Agreement does not, ipso facto, obliterate obligations

already crystallised inter se the parties. The contemplated

Collaboration Agreement appears intended to operationalise and

elaborate the commercial framework already agreed upon under the

Binding HoT rather than create obligations for the first time.

111. In this context, reference may be made to the decision of the

Supreme Court in Trimex International FZE Ltd. Dubai v. Vedanta

Aluminium Ltd., India

31

, wherein the Hon‟ble Supreme Court

recognised that even in commercial transactions contemplating

execution of further formal documentation, a binding and enforceable

contractual arrangement may nevertheless emerge if the essential

commercial terms stand crystallised and the conduct of parties

demonstrates consensus ad idem. The Hon‟ble Supreme Court

observed that the mere fact that a formal contract remained to be

executed would not, by itself, negate the existence of a concluded

arrangement.

112. The Hon‟ble Supreme Court, in the said decision, further

observed that commercial parties may consciously agree to be bound

immediately while deferring certain ancillary or implementation

aspects for later formalisation and that a contract cannot be treated as

non-binding merely because a subsequent detailed agreement was

contemplated.

113. The principles enunciated in Trimex International (supra) lend

31

(2010) 3 SCC 1

O.M.P.(I) (COMM.) 138/2026 Page 29 of 56

support to the Petitioner‟s contention that the Binding HoT constituted

a binding commercial arrangement notwithstanding contemplation of

a subsequent Collaboration Agreement. The relevant paragraphs

thereof read as follows:

“49. In the light of the details which have been extracted in the

earlier paragraphs, I am unable to accept the stand of the

respondent. It is clear that if the intention of the parties was to

arbitrate any dispute which arose in relation to the offer of 15-10-

2007 and the acceptance of 16-10-2007, the dispute is to be settled

through arbitration. Once the contract is concluded orally or in

writing, the mere fact that a formal contract has to be prepared and

initialled by the parties would not affect either the acceptance of

the contract so entered into or implementation thereof, even if the

formal contract has never been initialled.

***

52. The Court of Appeal in Pagnan S.p.A. v. Feed Products

Ltd. [(1987) 2 Lloyd's Rep 601 (CA)] , Lloyd's Law Reports at p.

619 observed as follows:

“It is sometimes said that the parties must agree on the

essential terms and that it is only matters of detail which

can be left over. This may be misleading, since the word

„essential‟ in that context is ambiguous. If by „essential‟

one means a term without which the contract cannot be

enforced then the statement is true : the law cannot enforce

an incomplete contract. If by „essential‟ one means a term

which the parties have agreed to be essential for the

formation of a binding contract, then the statement is

tautologous. If by „essential‟ one means only a term which

the Court regards as important as opposed to a term which

the Court regards as less important or a matter of detail,

the statement is untrue. It is for the parties to decide

whether they wish to be bound and, if so, by what terms,

whether important or unimportant. It is the parties who

are, in the memorable phrase coined by the Judge, „the

masters of their contractual fate‟. Of course, the more

important the term is the less likely it is that the parties

will have left it for future decision. But there is no legal

obstacle which stands in the way of the parties agreeing to

be bound now while deferring important matters to be

agreed later. It happens every day when parties enter into

so-called „heads of agreement‟.”

The above principle has been consistently followed by the English

courts in Mamidoil-Jetoil Greek Petroleum Co. SA v. Okta Crude

Oil Refinery AD, (2001) 2 All ER (Comm) 193, Lloyd's Law

O.M.P.(I) (COMM.) 138/2026 Page 30 of 56

Reports at p. 89; Wilson Smithett & Cape (Sugar)

Ltd. v. Bangladesh Sugar and Food Industries Corpn. [(1986) 1

Lloyd's Rep 378], Lloyd's Law Reports at p. 386. In addition,

Indian law has not evolved a contrary position. The celebrated

judgment of Lord Du Parcq in Shankarlal Narayandas

Mundade v. New Mofussil Co. Ltd. [AIR 1946 PC 97] makes it

clear that unless an inference can be drawn from the facts that the

parties intended to be bound only when a formal agreement had

been executed, the validity of the agreement would not be affected

by its lack of formality.”

(emphasis supplied)

114. The aforesaid conclusion is further reinforced by the subsequent

conduct of the parties themselves. The material placed before this

Court reflects that multiple addenda/extensions were admittedly

executed, extending the operation of the Binding HoT over a

substantial duration. Significant payments were admittedly made by

the Petitioner. Meetings were held with statutory authorities.

Documents and draft addenda continued to be exchanged inter se the

parties even proximate to the alleged termination communication

dated 25.03.2026, which itself acknowledges the Binding HoT, the

extensions granted thereunder and the subsisting commercial

arrangement between the parties over an extended period.

115. In particular, the addenda executed between the parties reflect

repeated extensions of the Binding HoT coupled with continuing

financial obligations undertaken by the Petitioner. The material placed

on record further prima facie demonstrates that substantial payments,

including payments of Rs. 1 Crore, Rs. 1.75 Crores and continuing

monthly payments, were admittedly made by the Petitioner under the

arrangement. The record additionally reflects continuing meetings and

interactions with statutory authorities, including MCD, DDA and

AAI, in furtherance of the proposed development project. Prima facie,

such prolonged and consistent conduct is difficult to reconcile with the

O.M.P.(I) (COMM.) 138/2026 Page 31 of 56

Respondents‟ present contention that the arrangement was merely

exploratory or non-binding in nature.

116. The conduct of the parties, therefore, militates against the

Respondents‟ present contention that the arrangement was merely

tentative or non-binding.

117. Further, the reliance placed by the Respondents upon the

decisions in Vinod Seth (supra), Gurbir Kaur (supra), Vijay Kumar

(supra), Prem Kumar Bansal (supra), Davender Kumar Sharma

(supra) and similar authorities also does not persuade this Court to

decline protection at this interlocutory stage. These decisions

principally arose in materially distinguishable factual contexts where

the agreements under consideration were found to be vague,

incomplete, lacking in consensus on essential contractual terms, or

otherwise incapable of implementation owing to the absence of clarity

regarding the nature of obligations undertaken by parties, or where the

specific performance would require continuous supervision of the

Court.

118. Prima facie, the present case stands on an entirely different

footing. The Collaboration Land herein stands specifically identified.

The Binding HoT records the broad development framework, revenue-

sharing arrangement, reciprocal obligations, financial commitments,

exclusivity stipulations and implementation structure governing the

project. More importantly, the material placed on record prima facie

demonstrates prolonged and consistent performance of the

arrangement by both sides through execution of multiple addenda,

admitted payments running into several crores, continued engagement

with statutory authorities, exchange of draft Collaboration Agreements

and continuing negotiations over an extended duration. Therefore, this

O.M.P.(I) (COMM.) 138/2026 Page 32 of 56

is not a case involving a wholly indeterminate, uncertain or non-

existent arrangement incapable of arbitral enforcement.

119. Further, whether the Binding HoT ultimately satisfies all

requirements necessary for the grant of final relief of specific

performance is itself a matter requiring fuller examination before the

learned Arbitral Tribunal. At the present stage, this Court is only

required to examine whether the Petitioner has disclosed a bona fide

and arbitral claim warranting preservation of the subject matter

pending adjudication.

120. This Court is of the considered view that the Binding HoT

herein cannot, at this stage, be said to be so uncertain, nebulous or

unworkable as to render the Petitioner‟s claim ex facie frivolous or

incapable of arbitral consideration. The project land, being the

Collaboration Land, stands identified. The commercial relationship

between the parties stands admitted. Payments under the arrangement

are admitted. The parties admittedly acted upon the arrangement over

a prolonged period. Therefore, this is not a case where the Petitioner

seeks enforcement of a wholly inchoate or non-existent understanding.

121. Further, this Court cannot overlook the significant legislative

shift brought about by the Specific Relief (Amendment) Act, 2018,

which fundamentally altered the jurisprudential approach governing

the enforcement of commercial contracts. As noticed by the Division

Bench of this Court in Global Music (supra), the amended statutory

framework now substantially tilts in favour of enforcement of

contractual obligations, subject only to limited and narrowly construed

statutory exceptions.

122. The pre-amendment position, wherein specific performance was

viewed as an exceptional and discretionary remedy while damages

O.M.P.(I) (COMM.) 138/2026 Page 33 of 56

constituted the ordinary rule, has undergone substantial dilution

pursuant to the 2018-Amendment. The legislative intent underlying

the amendment unmistakably reflects a conscious policy shift towards

strengthening contractual sanctity, ensuring commercial certainty, and

promoting greater confidence in the enforceability of agreements,

particularly in the context of modern commercial and infrastructure

transactions. The relevant portion of the said judgment reads as

follows:

“AMENDMENT ACT, 2018 HAS MADE SPECIFIC

PERFORMANCE OF A CONTRACT A GENERAL RULE

RATHER THAN AN EXCEPTION. THE LEGIS LATIVE SHIFT IS

TOWARDS STRONGER ENFORCEMENT OF CONTRACTS.

29. Specific performance is an equitable relief given by the Court

to enforce against a defendant the duty of doing what he agreed by

the contract to do. It was in the process of a search for effective

remedial action that Specific Relief emanated from the Equity

Courts in England. Sir Edward Fry in his, A Treatise on the

Specific Performance of Contracts, 6

th

Edn. states “The only

remedy at common law for the non-performance of a contract was

in damages…. The common law treats as universal a proposition

which is for the most part, but not universally true, namely, that

money is a measure of every loss. The defeat of justice which arose

from this universality of the common law principle was met and

remedied in certain cases by the jurisdiction of Courts of Equity to

compel specific performance.”

30. The principles built up by successive Chancellors of England in

this branch of law were borrowed by the Indian Courts and served

to enrich the Indian Law. The Specific Relief Act of 1877 was

modelled on the draft New York Civil Code of 1862 and embodied

in it the relevant doctrines evolved by the Courts of Equity in

England. The Act of 1877 was not exhaustive. For decades this Act

was subjected to judicial interpretations which revealed many

deficiencies and lacunae.

31. On the recommendations of the Law Commission's Ninth

Report, the Specific Relief Act, 1963 was brought into force. The

Act, 1963 as originally enacted, conferred wide discretionary

powers upon the Courts to decree specific performance and to

refuse injunction etc. As a result of wide discretionary powers, the

Courts in majority of cases awarded damages as a general rule and

granted specific performance as an exception.

O.M.P.(I) (COMM.) 138/2026 Page 34 of 56

32. However, it was recently felt that the Act, 1963 is not in tune

with the rapid economic growth happening in our country and the

expansion of infrastructure activities that were needed for the

overall development of the country. India also did not fare well in

the international rankings in „Enforcement of Contracts‟ and „Ease

of Doing Business‟. The World Bank in its „Ease of Doing

Business‟ 2018 report ranked India at 100 out of 190 countries. In

„Enforcement of Contracts‟, India was ranked at 164 out of 190

countries as per World Bank Doing Business indicators.

33. Accordingly, with the intent of promoting public interest, „Ease

of Doing Business‟ and to provide an effective remedy to parties

who have suffered loss due to breach or non fulfilment of a

contract, the Government of India appointed an Expert Committee

under the Chairmanship of Mr. Anand Desai.

34. Acting on the recommendations of the said Committee, the

Government of India decided to amend the Act, 1963 prospectively

(See: Katta Sujatha Reddy v. Siddamsetty Infra Projects Private

Limited, (2023) 1 SCC 355). The Statement of Objects and

Reasons of the Specific Relief (Amendment) Act, 2018 (hereinafter

be referred to as „Amendment Act, 2018‟) is reproduced

hereinbelow:—

“STATEMENT OF OBJECTS AND REASONS

The Specific Relief Act, 1963 was enacted to define and

amend the law relating to certain kinds of specific relief. It

contains provisions, inter alia, specific performance of

contracts, contracts not specifically enforceable, parties

who may obtain and against whom specific performance

may be obtained, etc. It also confers wide discretionary

powers upon the courts to decree specific performance and

to refuse injunction, etc. As a result of wide discretionary

powers, the courts in majority of cases award damages as

a general rule and grant specific performance as an

exception.

2. The tremendous economic development since the

enactment of the Act have brought in enormous

commercial activities in India including foreign direct

investments, public private partnerships, public utilities

infrastructure developments, etc.; which have prompted

extensive reforms in the related laws to facilitate

enforcement of contracts, settlement of disputes in speedy

manner. It has been felt that the Act is not in tune with the

rapid economic growth happening in our country and the

expansion of infrastructure activities that are needed for

the overall development of the country.

3. In view of the above, it is proposed to do away with the

wider discretion of courts to grant specific performance

and to make specific performance of contract a general

O.M.P.(I) (COMM.) 138/2026 Page 35 of 56

rule than exception subject to certain limited grounds.

Further, it is proposed to provide for substituted

performance of contracts, where a contract is broken, the

party who suffers would be entitled to get the contract

performed by a third party or by his own agency and to

recover expenses and costs, including compensation from

the party who failed to perform his part of contract. This

would be an alternative remedy at the option of the party

who suffers the broken contract. It is also proposed to

enable the courts to engage experts on specific issues and

to secure their attendance, etc.

4. A new section 20A is proposed for infrastructure project

contracts which provides that the court shall not grant

injunction in any suit, where it appears to it that granting

injunction would cause hindrance or delay in the

continuance or completion of the infrastructure project.

The Department of Economic Affairs is the nodal agency

for specifying various categories of projects and

infrastructure sub-sectors, which is provided as Schedule

to the Bill and it is proposed that the said Department may

amend the Schedule relating to any such category or sub-

sectors.

5. Special courts are proposed to be designated to try suits

in respect of contracts relating to infrastructure projects

and to dispose of such suits within a period of twelve

months from the date of service of summons to the

defendant and also to extend the said period for another

six months in aggregate, after recordings reasons therefor.

The Bill seeks to achieve the above objectives…”

35. It is settled law that a speech made by a mover of the bill

explaining the reasons for introducing the bill can certainly be

referred to for ascertaining the mischief sought to be remedied and

the object and the purpose of the legislation in question.

In Kalpana Mehta v. Union of India, (2018) 7 SCC 1, the

Supreme Court has held as under:—

“125. In K.P. Varghese v. CIT, (1981) 4 SCC 173 : 1981

SCC (Tax) 293, the Court, while referring to the Budget

Speech of the Minister, ruled that speeches made by

Members of legislatures on the floor of the House where a

Bill for enacting a statutory provision is being debated are

inadmissible for the purpose of interpreting the statutory

provision. But the Court made it clear that the speech

made by the mover of the Bill explaining the reasons for

introducing the Bill can certainly be referred to for

ascertaining the mischief sought to be remedied and the

object and the purpose of the legislation in question. Such

a view, as per the Court, was in consonance with the

juristic thought not only in the western countries but also

O.M.P.(I) (COMM.) 138/2026 Page 36 of 56

in India as in the exercise of interpretation of a statute,

everything which is logically relevant should be admitted.

Thereafter, the Court acknowledged a few decisions of

this Court where speeches made by the Finance Minister

were relied upon by the Court for the purpose of

ascertaining the reason for introducing a particular clause.

xxx xxx xxx

134. From the aforesaid, it clear as day that the Court can

take aid of the report of the Parliamentary Committee for

the purpose of appreciating the historical background of

the statutory provisions and it can also refer to committee

report or the speech of the Minister on the floor of the

House of Parliament if there is any kind of ambiguity or

incongruity in a provision of an enactment.

xxx xxx xxx

144. It is worthy to note here that there is an intrinsic

difference between parliamentary proceedings which are

in the nature of statement of a Minister or of a Mover of a

Bill made in Parliament for highlighting the purpose of an

enactment or, for that matter, a Parliamentary Committee

report that had come into existence prior to the enactment

of a law and a contestable/conflicting matter of “fact”

stated in the Parliamentary Committee report. It is the

parliamentary proceedings falling within the former

category of which courts are enjoined under Section 57,

clause (4) to take judicial notice of, whereas, for the latter

category of parliamentary proceedings, the truthfulness of

the contestable matter of fact stated during such

proceedings has to be proved in the manner known to

law.”

36. The then Minister of Law and Justice and the Minister of

Electronics and Information Technology, Sh. Ravi Shankar Prasad

while moving the Amendment Act, 2018 explained its rationale as

under:-

“Shri Ravi Shankar Prasad : Sir, may I just explain the

rationale for this Bill? The Specific Relief Act was

enacted in the year 1963. And, the Act clearly stated that

damages and monetary compensation shall be the norm

and a specific relief shall be an exception. So much so that

under Section 41 of the Act, no injunction could be

granted in the event an errant party tries to run away. You

take damages. Now, Sir, with the passage of time,

infrastructure has become a big issue in India. A lot of

money is coming and investment is coming. And, many of

them ultimately partake of the contracts which are relevant

as far as the Specific Relief Act is concerned. Now, Sir, in

many cases, errant parties or deviant parties, they are

creating problems. Whenever the parties used to go to the

O.M.P.(I) (COMM.) 138/2026 Page 37 of 56

court, they say, “No specific performance, you take

money”. It was also impacting our standing in the Ease of

the Doing Business. Therefore, ultimately, it was thought

that this matter requires to be addressed. And, ultimately, a

three-member Committee of eminent people was formed

and that Committee recommended - there were people

from the law firms; there were people from the industry -

that this requires proper amendment. And, therefore, we

came with an amendment. What is the purport of the

amendment which we are seeking to move today? It is

basically threefold. First and foremost, now, a specific

performance shall be the rule and damages has been

exception. So, we have reversed the entire focus of the Bill

from 1963 to 2017-18….”

37. From the aforesaid, it is apparent that the primary intent behind

the Amendment Act, 2018 is to introduce greater certainty in the

enforcement of contracts and consequently improve India's ranking

in „Enforcement of Contracts‟ and „Ease of Doing Business‟.

*****

39. This Court is of the view that by virtue of the changes brought

about by the Amendment Act, 2018, the Courts will now grant

specific performance unless the claim for relief is barred under

limited grounds prescribed in the statute. This change is aimed at

providing greater protection of contractual expectations by

ensuring that a non-defaulting party can obtain the performance it

bargained for. The Amendment Act, 2018 intends to discourage

errant parties who may deem it more viable to breach a contract

than perform it, as the cost of damages may still be less than the

cost of the performance.

40. The Amendment Act, 2018 has also brought the Indian Specific

Performance Act in line with the UNIDROIT Principles of

International Commercial Contracts, as it aspires to achieve

harmonization in international law governing commercial

contracts.

*****

42. Consequently, the Amendment Act, 2018 has changed the

nature of specific relief from an equitable, discretionary remedy to

a statutory remedy. It has made specific performance of a contract

a general rule rather than an exception.”

(emphasis supplied)

123. This Court also takes note of the Report dated 26.05.2016

submitted by the Expert Committee constituted under the

Chairmanship of Mr. Anand Desai, which formed the foundational

O.M.P.(I) (COMM.) 138/2026 Page 38 of 56

basis for the 2018 Amendment to the SRA.

124. The Committee emphatically underscored that enforcement of

contractual obligations ought to be treated as the general rule, and

refusal of specific performance or injunctive relief should remain

confined only to limited and specifically enumerated exceptions. The

Committee specifically recommended that specific performance and

injunctions should no longer be treated as exceptional remedies, but

ought ordinarily to be made available to a promisee seeking

enforcement of contractual rights, whether before courts, tribunals, or

arbitral forums.

125. The said Report further emphasized that judicial interference

through discretionary refusal of such reliefs should remain minimal

and restricted to clearly identifiable statutory grounds. Significantly,

the Committee also recognized that where a party seeks specific

performance, its contractual interests ought not to be defeated merely

by passage of time during adjudicatory proceedings, and therefore

appropriate interim protections should be available to preserve the

subject matter pending final adjudication. The relevant portion of the

said report reads as follows:

“11.6 Changes suggested

It is therefore necessary to explore whether specific performance

and injunction should be available as normal, routine and usual

remedies to a promisee who seeks to have them. It is also necessary

to explore in what manner can a promisee be assured of the benefit

of performance to the extent that he has been promised under his

contract.

Three major changes are suggested:-

(i) Specific performance and injunction should no longer be an

exceptional remedy, but should be available to any promisee

who seeks these reliefs, whether through courts,tribunals, or in

arbitration. Interference with these remedy in exercise of

discretionary powers of the court should be minimal, and on

specific grounds only.

O.M.P.(I) (COMM.) 138/2026 Page 39 of 56

(ii) If the promisor refuses or fails to perform his promise, the

promisee should be entitled get the performance completed

through a third party, at the cost of the promisor.

(iii) Where a promisee seeks specific performance, his interests

should not be prejudiced by passage of time during litigation.

His interests should be protected by appropriate interim orders.

11.7 Amendments proposed

The amendments proposed are broadly as given below, and are

dealt with in detail later:

(i) Both remedies of specific performance and Injunction when

sought for breach of contract, will no longer be exceptional

remedies. Section 10 to be amended accordingly.

(ii) A court can refuse these remedies only on the stated grounds.

Such grounds in the current Sections 14 and 20 are merged into

one section, l.e. Section 14. It is expressly stated that these

remedies shall not be refused on any other grounds. These

remedies shall no longer be discretionary.

(iii) A new relief of 'compensation pursuant to substituted

performance' is created in new section 20A.

(iv) Title of Chapter II to be changed to 'Enforcement of

Contracts' to accommodate all these remedies, and other

consequential amendments.”

126. In the backdrop of the legislative history and the underlying

object of the 2018-SRA amendment, this Court is of the considered

opinion that the enforcement of contracts now constitutes the general

rule rather than the exception. Consequently, the submission advanced

on behalf of the Respondents that the Binding HoT is ex facie

unenforceable under Sections 14 and 41 of the SRA cannot, at this

prima facie stage, be accepted in absolute terms.

127. Whether the nature of the obligations contemplated under the

Binding HoT attracts the prohibitions contained under Section 14(b)

of the SRA, or whether the relief sought is barred under Section 41(h)

of the SRA, are issues which would necessarily require a detailed

factual examination and evidentiary appreciation, an exercise more

appropriately undertaken in arbitral proceedings and not within the

O.M.P.(I) (COMM.) 138/2026 Page 40 of 56

limited jurisdiction presently being exercised under Section 9 of the

A&C Act.

128. This court is of the considered opinion that once the statutory

framework itself favours enforcement of contractual obligations, the

exceptions restraining such enforcement cannot be expansively

construed at the threshold stage so as to defeat the very subject matter

of arbitration. Mere invocation of Sections 14 or 41 of the SRA,

without a clear and unimpeachable demonstration that the case

squarely falls within the statutory prohibitions, cannot by itself compel

the Court, at a prima facie stage, to decline protective interim

measures. The Court, while exercising jurisdiction under Section 9 of

the A&C Act, is only required to undertake a limited and tentative

examination to ascertain whether an arguable arbitral claim exists,

warranting preservation of the subject matter pending adjudication.

129. In the facts and circumstances of the present case, this Court

does not, at this stage, find such overwhelming or absolute weight in

favour of the Respondents‟ contention so as to conclusively hold that

Sections 14 and 41 of the SRA completely bar enforcement of an

agreement of the present nature. The Respondents‟ objections, though

raising issues requiring consideration, are matters which remain open

for a detailed adjudication before the learned Arbitral Tribunal. At this

interim stage, this Court is therefore unable to hold that the Binding

HoT is so manifestly unenforceable in law that no interim protection

whatsoever can be granted for safeguarding the subject matter of the

arbitral proceedings pending final adjudication.

130. As is well established, at the stage of considering a Petition

under Section 9 of the A&C Act, the Court is not required to finally

determine the ultimate enforceability of the underlying contract or

O.M.P.(I) (COMM.) 138/2026 Page 41 of 56

conclusively adjudicate the entitlement of parties to specific

performance. It is sufficient if the material placed on record discloses

a bona fide and substantial arbitral claim requiring preservation

pending adjudication before the learned Arbitral Tribunal. Whether

the Petitioner ultimately succeeds in obtaining specific performance or

any other substantive relief would necessarily fall for determination in

arbitral proceedings upon appreciation of evidence and contractual

material.

131. Equally unpersuasive is the Respondents‟ submission that the

Petition effectively seeks final relief at the interim stage. The relief

sought by the Petitioner is essentially preservative in nature. The

Petitioner seeks maintenance of the contractual and commercial

substratum pending adjudication before the learned Arbitral Tribunal.

The same cannot, in the facts of the present case, be equated with the

grant of a final decree of specific performance.

132. The decisions in Adhunik Steels Ltd. (supra), Arvind

Constructions (supra) and Ajay Singh (supra), in fact, recognise the

broad and equitable nature of jurisdiction under Section 9 of the A&C

Act, albeit guided by settled principles governing interim reliefs.

There can be no quarrel with the proposition that the Court must test

the matter on the touchstone of a prima facie case, balance of

convenience and irreparable injury. However, those very principles,

in the considered view of this Court, operate in favour of the Petitioner

in the peculiar facts of the present matter.

133. In this regard, reference may also be made to the decision of the

Supreme Court in Essar House Private Limited v. Arcellor Mittal

O.M.P.(I) (COMM.) 138/2026 Page 42 of 56

Nippon Steel India Ltd

32

, wherein the Hon‟ble Supreme Court

reiterated that while exercising jurisdiction under Section 9 of the

A&C Act, the Court is not strictly constrained by the rigours of the

CPC and possesses broad equitable powers to secure the efficacy of

arbitral proceedings and preserve the subject matter of arbitration.

134. The Hon‟ble Supreme Court further observed that the Court

exercising jurisdiction under Section 9 of the A&C Act ought not to

refuse interim protection merely on technicalities and that the Court

must adopt a course which advances the ends of justice and safeguards

the efficacy of arbitral proceedings. The relevant observations, as

made in the said judgment, read as follows:

“38. In deciding a petition under Section 9 of the Arbitration Act,

the Court cannot ignore the basic principles of CPC. At the same

time, the power of the Court to grant relief is not curtailed by the

rigours of every procedural provision in CPC. In exercise of its

powers to grant interim relief under Section 9 of the Arbitration

Act, the Court is not strictly bound by the provisions of CPC.

***

44. In Jagdish Ahuja v. Cupino Ltd., 2020 SCC OnLine Bom

849, the Bombay High Court correctly summarised the law in para

6 extracted hereinbelow : (SCC OnLine Bom)

“6. As far as Section 9 of the Act is concerned, it cannot

be said that this Court, while considering a relief

thereunder, is strictly bound by the provisions of Order 38

Rule 5. As held by our Courts, the scope of Section 9 of

the Act is very broad; the court has a discretion to grant

thereunder a wide range of interim measures of protection

“as may appear to the court to be just and convenient”,

though such discretion has to be exercised judiciously and

not arbitrarily. The court is, no doubt, guided by the

principles which civil courts ordinarily employ for

considering interim relief, particularly, Order 39 Rules 1

and 2 and Order 38 Rule 5; the court, however, is not

unduly bound by their texts. As this Court held in Nimbus

Communications Ltd. v. BCCI, 2012 SCC OnLine Bom

287 (per D.Y. Chandrachud, J.), as the learned Judge then

was), the court, whilst exercising power under Section 9,

32

(2022) 20 SCC 178

O.M.P.(I) (COMM.) 138/2026 Page 43 of 56

„must have due regard to the underlying purpose of the

conferment of the power under the court which is to

promote the efficacy of arbitration as a form of dispute

resolution‟. The learned Judge further observed as follows

: (SCC OnLine Bom para 24)

„24. … Just as on the one hand the exercise of the power

under Section 9 cannot be carried out in an uncharted

territory ignoring the basic principles of procedural law

contained in the Code of Civil Procedure, 1908, the

rigours of every procedural provision in the Code of Civil

Procedure, 1908 cannot be put into place to defeat the

grant of relief which would subserve the paramount

interests of justice. A balance has to be drawn between the

two considerations in the facts of each case.‟ ”

***

48. If a strong prima facie case is made out and the balance of

convenience is in favour of interim relief being granted, the Court

exercising power under Section 9 of the Arbitration Act should not

withhold relief on the mere technicality of absence of averments,

incorporating the grounds for attachment before judgment under

Order 38 Rule 5 CPC.”

135. The aforesaid principles, when applied to the facts of the

present case, prima facie justify preservation of the contractual and

commercial substratum pending arbitral adjudication. The Petitioner

has demonstrated the existence of a substantial and bona fide arbitral

dispute arising from a commercial arrangement acted upon over a

prolonged duration. In such circumstances, this Court would be failing

in its duty under Section 9 of the A&C Act if, pending arbitral

adjudication, irreversible third-party rights are permitted to be created

so as to render the arbitral proceedings infructuous or ineffectual.

136. Insofar as the issue regarding time being of the essence is

concerned, this Court is also unable, prima facie, to accept the

Respondents‟ submission that the Binding HoT automatically stood

extinguished upon expiry of the stipulated timelines.

137. Undoubtedly, the decisions in Saradamani Kandappan (supra)

and Desh Raj (supra) emphasise that courts must accord due

O.M.P.(I) (COMM.) 138/2026 Page 44 of 56

significance to timelines in modern commercial transactions involving

immovable property. There can be no dispute with the said

proposition. However, the said Judgements themselves recognise that

the question remains one of contractual intention gathered from the

entirety of the arrangement and the conduct of the parties.

138. In the present case, the repeated execution of

addenda/extensions, the admitted continuation of negotiations, the

continued participation of both sides in pursuing approvals and the

exchange of further drafts even after expiry of earlier timelines prima

facie demonstrate that the parties themselves never treated the

arrangement as automatically extinguished upon expiry of the original

periods.

139. Significantly, the material placed before this Court reflects that

negotiations, exchanges of draft addenda and discussions concerning

continuation of the project admittedly continued even after expiry of

earlier timelines. Prima facie, such conduct evidences that the parties

themselves treated the timelines as extendable and the arrangement as

subsisting notwithstanding expiry of earlier periods contemplated

under the Binding HoT. Significantly, the Binding HoT does not

appear, ex facie, to contain any automatic termination or forfeiture

mechanism extinguishing rights immediately upon expiry of timelines.

140. At this stage, therefore, whether time ultimately constituted the

essence of the contract is a matter requiring fuller examination before

the learned Arbitral Tribunal and cannot be conclusively determined

against the Petitioner in proceedings under Section 9 of the A&C Act.

141. Reference may also be made to the decision of the Supreme

O.M.P.(I) (COMM.) 138/2026 Page 45 of 56

Court in B. Santoshamma v. D. Sarala

33

, wherein the Hon‟ble

Supreme Court, while considering the scope of specific enforcement

of agreements concerning immovable property, reiterated the

significant shift brought about by the 2018-SRA amendment and

emphasised that courts must adopt a purposive and meaningful

interpretation so as to prevent a defaulting party from defeating

contractual rights by its own wrongful conduct. The Hon‟ble Supreme

Court further recognised that agreements concerning immovable

property create valuable enforceable rights and that a contracting party

cannot be permitted to frustrate the agreement by creating third-party

complications during the subsistence of contractual obligations. The

relevant observations read as follows:

“70. After the amendment of Section 10 of the SRA, the words

“specific performance of any contract may, in the discretion of the

court, be enforced” have been substituted with the words “specific

performance of a contract shall be enforced subject to …”. The

court is, now obliged to enforce the specific performance of a

contract, subject to the provisions of sub-section (2) of Section 11,

Section 14 and Section 16 of the SRA. Relief of specific

performance of a contract is no longer discretionary, after the

amendment.

71. An agreement to sell immovable property, generally creates a

right in personam in favour of the vendee. [[Ed. : The Supreme

Court in V.K. Sreedharan v. Chandramaath Balakrishnan, (1990)

3 SCC 291, on a harmonious construction of Section 40 Part II and

Section 54 TPA and Section 91 of the Trusts Act, 1882, held that

the vendee under an antecedent agreement to sell gets a good title

in equity despite subsequent attachment of the seller's property, and

this equitable proprietary interest created by the antecedent

agreement to sell can be enforced in priority over the rights of a

subsequent judgment-creditor. The ruling in V.K. Sreedharan

case has been followed by the Supreme Court in Rajender

Singh v. Ramdhar Singh, (2001) 6 SCC 213. The equitable

property right created by an agreement for sale binds the seller and

other third persons, except bona fide transferees without notice of

the prior agreement for sale. This principle is statutorily recognised

in Section 19(b) of the Specific Relief Act, 1963.In fact, the

33

(2020) 19 SCC 80

O.M.P.(I) (COMM.) 138/2026 Page 46 of 56

Transfer of Property Act, 1882 itself envisages a dual structure of

property at law and in equity, as can be seen from Section 5

thereof. Section 5 TPA inter alia provides that a “transfer of

property” means “an act by which a living person conveys property

… to himself”. This express possibility of a transfer to oneself was

brought about by the 1929 Amendment to the TPA. This

amendment seems to make it clear that the TPA itself contemplates

a dual structure of property and ownership in India being the same

as that in England: of legal estates and equitable estates. This is

because it is only in the case of a trust that the concept of transfer

of property to oneself makes any sense, for in case of a trust, where

the settlor appoints himself the sole trustee, he, in his capacity as

the settlor, transfers the legal ownership of the trust property to

himself in his capacity as the sole trustee and transfers equitable or

beneficial ownership to the beneficiaries of the trust. This is

because a “transfer to oneself” is only possible if one transfers the

legal estate to oneself, and the beneficial or equitable estate to

another. It has been so held by a three-Judge Bench of the Supreme

Court in Tulsidas Kilachand v. CIT, (1961) 3 SCR 351. In respect

of an agreement to sell, Section 91 of the Trusts Act, 1882 read

with the definition of “trust” in Section 2(c) of the Specific Relief

Act, 1963, appears to create a constructive trust in respect of the

property which is the subject-matter of(Ed. note contd.)the

agreement to sell, with the seller/subsequent transferees as

constructive trustee holding the legal estate in the sale property on

trust for the vendee who is the cestui que of such trust. The vendee

is the holder of the beneficial estate in equity in the sale property

under such trust. When it is stated that “an agreement to sell

immovable property, generally creates a right in personam in

favour of the vendee”, it would appear that this pertains to the

nature of obligations owed by the trustee holding the legal title to

the property, to the beneficiary who holds the beneficial estate in

equity. It is often said that “equity acts in personam”: this probably

is with reference to the nature of the obligation owed by the trustee

to the beneficiary. However, the beneficial estate created by an

agreement to sell, as explained in V.K.

Sreedharan v. Chandramaath Balakrishnan, (1990) 3 SCC 291

and Rajender Singh v. Ramdhar Singh, (2001) 6 SCC 213, does

exhibit a proprietary character, though in equity.This equitable

proprietary character of the rights created by an agreement to sell is

further evidenced in the following cases. In Hill

Properties v. Union Bank of India, (2014) 1 SCC 635, a share

certificate in a housing company being the equivalent of a contract

for sale, was held to create a “species of property” or “species of

interest”, which was further held to be a mortgageable interest.

In Lakshmi v. E. Jayaram, (2013) 9 SCC 311, the lessee of the

vendee under a contract for sale, thus in fact a lessee in equity with

no legal title, was held to have the right to maintain an action for a

perpetual injunction against the transferor/legal title holder of the

O.M.P.(I) (COMM.) 138/2026 Page 47 of 56

property from interfering with the possession of the lessee in

equity. In CIT v. Podar Cement, (1997) 5 SCC 482, it was held

that a vendee under an agreement to sell was liable to pay capital

gains tax on his interest as the same was proprietary in nature.

In Saraswati Devi v. DDA, (2013) 3 SCC 571, the interest of the

highest bidder in auction of immovable property but before sale

had been executed i.e. at the stage of a contract for sale, was held

to be an interest in property susceptible to acquisition by the

State.The above cases appear to establish that the rights of a

vendee exhibit an equitable proprietary character i.e. a near

complete in rem character. There is one key difference between

legal property rights, estates or interests and equitable property

rights, estates or interests. Legal property rights exhibit a complete

or total in rem character without exception i.e. they bind the whole

world or third parties or subsequent transferees without exception

regardless of notice, knowledge or consent. Equitable property

rights mirror legal property rights, but exhibit a near complete in

rem character i.e. with an exception: equitable property rights bind

the whole world or third parties or subsequent transferees except

bona fide transferees for consideration without notice of the prior

equitable proprietary interests. For a more detailed analysis see the

Editorial note in Venigalla Koteswaramma v. Malampati

Suryamba, (2021) 4 SCC 246, at pp. 252-256.]] The vendee

acquires a legitimate right to enforce specific performance of the

agreement.

***

87. Section 12 of the SRA is to be construed and interpreted in a

purposive and meaningful manner to empower the Court to direct

specific performance by the defaulting party, of so much of the

contract, as can be performed, in a case like this. To hold otherwise

would permit a party to a contract for sale of land, to deliberately

frustrate the entire contract by transferring a part of the suit

property and creating third-party interests over the same.

88. Section 12 has to be construed in a liberal, purposive manner

that is fair and promotes justice. A contractee who frustrates a

contract deliberately by his own wrongful acts cannot be permitted

to escape scot-free.

***

89. After having entered into an agreement for sale of 300 sq yd of

land, with her eyes open, and accepted a major part of the

consideration (Rs 45,000 out of Rs 75,000) it does not lie in the

mouth of the vendor to contend that the contract should not have

specifically been enforced in part, in respect of the balance 200 sq

yd meters of the suit land which the vendor still owned. It is

patently obvious that the vendor did not disclose any earlier

agreement to the vendee, as discussed above. The agreement in

O.M.P.(I) (COMM.) 138/2026 Page 48 of 56

writing dated 21-3-1984, does not bear reference to any earlier

agreement, as noted above.”

142. This Court also finds merit in the submission advanced on

behalf of the Petitioner that the Binding HoT prima facie created

valuable commercial and development rights. The arrangement was

not a mere construction contract simpliciter. The Petitioner was to

derive identifiable commercial entitlements linked to the development

of the project. The decision in Grovy India (supra) prima facie

supports the proposition that development arrangements conferring

valuable commercial entitlements and incidents of ownership may

constitute specifically enforceable rights. The relevant portion of the

said judgment reads as follows:

“4. The dispute relates to a Property Development Agreement

(“PDA”), dated 14

th

January, 2020, executed between the plaintiff

and the defendant. The defendant has admitted this document….

***

17. The plaintiff has, in this suit, sought specific performance of

the PDA and thereby a direction to the defendant to hand over

peaceful possession of the suit property to the plaintiff, produce the

original property papers, handover all the executed documents, and

further execute all such other necessary documents to fulfil the

contemplated terms of the PDA. Additionally, a direction to the

defendant, to have the mortgage, in respect of the suit property,

redeemed, has also been sought.

***

69. The Court was, therefore, in Vinod Seth

2

, dealing with a

vague, imprecise and oral agreement. A reading of the decision

makes it clear that the difficulty which, in the opinion of the Court,

would arise in attempting specific performance of such an

undocumented agreement was one of the main considerations

which compelled the Supreme Court to agree with the view of this

Court that the agreement was incapable of specific performance.

70. In appreciating the law enunciated in Vinod Seth

2

, the Court

cannot, in my view, proceed unmindful of the nature of the

controversy, and, especially, the agreement, which was before the

Supreme Court. Judgements of courts, including the Supreme

Court, it is trite, are not to be treated as analogous to Euclid's

O.M.P.(I) (COMM.) 138/2026 Page 49 of 56

theorems, and followed blindly, without appreciating the fact-

situation in which they came to be rendered.

71. Sushil Kumar Agarwal:

72. As against this, Sushil Kumar Agarwal, also by a Bench of

two Hon'ble Judges of the Supreme Court, involved a suit for

specific performance of a written development agreement. It is

unnecessary to delve into the specifics of the disputes in that case.

Suffice it to reproduce paras 18, 19 and 24.3 of the report, which

read as under:

“18. When a pure construction contract is entered into, the

contractor has no interest in either the land or the

construction which is carried out. But in various other

categories of development agreements, the developer may

have acquired a valuable right either in the property or in

the constructed area. The terms of the agreement are

crucial in determining whether any interest has been

created in the land or in respect of rights in the land in

favour of the developer and if so, the nature and extent of

the rights.

19. In a construction contract, the contractor has no

interest in either the land or the construction carried out on

the land. But, in other species of development agreements,

the developer may have acquired a valuable right either in

the property or the constructed area. There are various

incidents of ownership in respect of an immovable

property. Primarily, ownership imports the right of

exclusive possession and the enjoyment of the thing

owned. The owner in possession of the thing has the right

to exclude all others from its possession and enjoyment.

The right to ownership of a property carries with it the

right to its enjoyment, right to its access and to other

beneficial enjoyments incidental to it. [ B.

Gangadhar v. B.G. Rajalingam, (1995) 5 SCC 238, para

6]. Ownership denotes the relationship between a person

and an object forming the subject-matter of the ownership.

It consists of a complex of rights, all of which are rights in

rem, being good against the world and not merely against

specific persons. There are various rights or incidents of

ownership all of which need not necessarily be present in

every case. They may include a right to possess, use and

enjoy the thing owned; and a right to consume, destroy or

alienate it. [Swadesh Ranjan Sinhav. Haradeb

Banerjee, (1991) 4 SCC 572]. An essential incident of

ownership of land is the right to exploit the development,

potential to construct and to deal with the constructed area.

In some situations, under a development agreement, an

owner may part with such rights to a developer. This in

O.M.P.(I) (COMM.) 138/2026 Page 50 of 56

essence is a parting of some of the incidents of ownership

of the immovable property. There could be situations

where pursuant to the grant of such rights, the developer

has incurred a substantial investment, altered the state of

the property and even created third-party rights in the

property or the construction to be carried out. There could

be situations where it is the developer who by his efforts

has rendered a property developable by taking steps in

law. In development agreements of this nature, where an

interest is created in the land or in the development in

favour of the developer, it may be difficult to hold that the

agreement is not capable of being specifically

performed. For example, the developer may have evicted

or settled with occupants, got land which was agricultural

converted into non-agricultural use, carried out a partial

development of the property and pursuant to the rights

conferred under the agreement, created third-party rights

in favour of flat purchasers in the proposed building. In

such a situation, if for no fault of the developer, the owner

seeks to resile from the agreement and terminates the

development agreement, it may be difficult to hold that the

developer is not entitled to enforce his rights. This of

course is dependent on the terms of the agreement in each

case. There cannot be a uniform formula for determining

whether an agreement granting development rights can be

specifically enforced and it would depend on the nature of

the agreement in each case and the rights created under it.

*****

24.3. In order to determine the exact nature of the

agreement signed between the parties, the intent of the

parties has to be construed by reading the agreement as a

whole in order to determine whether it is an agreement

simpliciter for construction or an agreement that also

creates an interest for the builder in the property. Where

under a development agreement, the developer has an

interest in land, it would be difficult to hold that such an

agreement is not capable of being specifically enforced.”

(Italics and underscoring supplied)

73. Where, therefore, as in the present case, the agreement is not

merely for development or construction on the property, but also

envisages valuable rights enuring, in favour of the developer, in the

constructed edifice, the Supreme Court itself holds, unequivocally,

that it would be difficult to treat the agreement as incapable of

specific performance.

74. The requirement of precision, in the construction contract, as a

pre-condition for its enforceability, is relatable to the erstwhile

Section 14(3)(c)(iii) of the Specific Relief Act. That requirement

no longer figures on the statute book, after the amendment of

O.M.P.(I) (COMM.) 138/2026 Page 51 of 56

Section 14 by the 2018 Amendment Act. In my prima

facie opinion, lack of precision in the construction agreement can

no longer be regarded, by itself, as a sufficient disqualification to

its enforceability by specific performance. Else, it would be re-

introducing, by a side wind, the consideration in the erstwhile

Section 14(3)(c)(iii), which the legislature has consciously

removed from the statute. Such an exercise is necessarily to be

eschewed, as it would militate against the legislative intent.

75. The sequitur would, therefore, be that a construction contract

can no longer be regarded as incapable of specific performance

merely because its terms are imprecise or vague. If, however,

owing to such imprecision or vagueness, any direction for specific

performance would require continuous supervision by the Court,

that would, even now, render the agreement incapable of specific

performance by virtue of Section 14(b). For that, however, the

Court would have to arrive at a finding that, owing to the

imprecision of the agreement, or for any other reason, any direction

for specific performance would require continuous supervision by

the Court. In the scenario of Section 14 as it exists today, and

without the support of the erstwhile Section 14(3)(c) and its

various clauses, this would, in almost every case, be arguable at the

very least.

76. Prima facie, in view of the above legal position, I am unable to

convince myself to hold, prima facie, that the defendant has been

able to make out a case of the PDA being incapable of specific

performance, by operation of Section 14(b) of the Specific Relief

Act, as would justify vacation of the interim direction to

maintain status quo in respect of the suit property.”

143. For the reasons already recorded hereinabove, this Court is

satisfied that the Petitioner has succeeded in establishing a strong

prima facie arbitral claim warranting protection and preservation

pending adjudication of disputes before the learned Arbitral Tribunal.

The existence of the Binding HoT, the repeated extensions granted

thereto, the admitted payments exchanged between the parties, the

continuing negotiations, and the overall contemporaneous conduct of

the parties collectively indicate that serious and substantial triable

disputes arise for adjudication in arbitration. At this stage, the material

placed on record discloses the existence of a bona fide and arguable

contractual dispute which cannot be summarily rejected in

O.M.P.(I) (COMM.) 138/2026 Page 52 of 56

proceedings under Section 9 of the A&C Act.

144. The claims asserted by the Petitioner cannot, at the present

stage, be characterised as illusory, speculative, vexatious, or wholly

devoid of an enforceable legal substratum. On the contrary, the

material presently available prima facie demonstrates that the disputes

raised by the Petitioner are neither sham nor frivolous, but involve

substantive questions requiring fuller examination on facts and law

before the learned Arbitral Tribunal. This Court, while exercising its

limited jurisdiction at the interim stage, is therefore unable to hold that

the Petitioner‟s claims are ex facie untenable so as to deny protective

relief altogether.

145. This Court is further of the considered view that if interim

protection is declined at this stage and the Respondents are permitted

to create irreversible third-party rights, alienate interests, or

fundamentally alter the commercial nature and character of the project

during the pendency of arbitral proceedings, the arbitral process itself

may stand seriously prejudiced and frustrated. In such an eventuality,

any award that may ultimately be rendered in favour of the Petitioner

could be rendered ineffective, illusory, or incapable of meaningful

enforcement. Conversely, the grant of interim protection at this stage

merely serves to preserve the existing state of affairs and safeguard the

subject matter of arbitration pending final adjudication. Such

protection neither results in a final determination of rights nor causes

irretrievable prejudice to the Respondents, whose rights and

contentions shall remain open to be adjudicated before the learned

Arbitral Tribunal in accordance with law.

146. In this context, reference may also be made to the decision of

the Supreme Court in Maharwal Khewaji Trust (Regd.), Faridkot v.

O.M.P.(I) (COMM.) 138/2026 Page 53 of 56

Baldev Dass

34

, wherein the Hon‟ble Supreme Court emphasised that

ordinarily, during pendency of proceedings, courts ought to preserve

the existing status of immovable property and should not permit

alteration of the nature of the property or creation of complications

capable of frustrating the ultimate adjudicatory process. The Apex

Court observed that unless exceptional circumstances are made out,

the nature and status of the property ought to be preserved so as to

avoid multiplicity of proceedings and irreversible prejudice to the

party ultimately found entitled thereto. The relevant observations, as

made in the said judgment, read as under:

“10. Be that as it may, Mr Sachar is right in contending that unless

and until a case of irreparable loss or damage is made out by a

party to the suit, the court should not permit the nature of the

property being changed which also includes alienation or transfer

of the property which may lead to loss or damage being caused to

the party who may ultimately succeed and may further lead to

multiplicity of proceedings. In the instant case no such case of

irreparable loss is made out except contending that the legal

proceedings are likely to take a long time, therefore, the respondent

should be permitted to put the scheduled property to better use. We

do not think in the facts and circumstances of this case, the lower

appellate court and the High Court were justified in permitting the

respondent to change the nature of the property by putting up

construction as also by permitting the alienation of the property,

whatever may be the conditions on which the same is done. In the

event of the appellant's claim being found baseless ultimately, it is

always open to the respondent to claim damages or, in an

appropriate case, the court may itself award damages for the loss

suffered, if any, in this regard. Since the facts of this case do not

make out any extraordinary ground for permitting the respondent to

put up construction and alienate the same, we think both the courts

below, namely, the lower appellate court and the High Court erred

in making the impugned orders. The said orders are set aside and

the order of the trial court is restored.”

147. The Court is also guided by the principle recognised in GTL

Infrastructure (supra) that Section 9 of the A&C Act is intended to

preserve the efficacy of arbitral proceedings and the Court must adopt

34

(2004) 8 SCC 488

O.M.P.(I) (COMM.) 138/2026 Page 54 of 56

the course carrying the lower risk of injustice. The relevant portion of

the said judgment reads as follows:

“17. It is apparent from the above that the powers of the court to

order interim measures of protection under Section 9 of the A&C

Act are wide and are not confined solely to orders that can be

passed under Order XXXIX Rules 1&2 of the Civil Procedure

Code, 1908. However, the court would be guided by the principles

underlying the said Code. Clearly, such orders would also extend

to granting the relief, if such relief is admissible on admitted facts.”

148. The disputes arising between the parties concern valuable

development rights in relation to immovable property and a unique

commercial opportunity which, by its very nature, may not be capable

of exact or complete restitution through monetary compensation alone.

The subject matter of the dispute possesses distinct commercial and

proprietary attributes, and any irreversible alteration thereto, or

creation of third-party rights during the pendency of arbitral

proceedings, may result in consequences incapable of being

adequately remedied merely by an award of damages. In such

circumstances, even if the Petitioner were ultimately to succeed before

the learned Arbitral Tribunal, the prejudice occasioned by a

fundamental change in the character of the project or alienation of

rights therein may render the eventual arbitral award ineffective or

incapable of meaningful enforcement.

149. Conversely, this Court is of the considered view that the

interests of the Respondents can be sufficiently protected and balanced

by imposing appropriate safeguards and conditions aimed at

preserving the equities between the parties during the pendency of the

arbitration. Grant of interim protection, therefore, would not result in

irreparable injustice to the Respondents, particularly when suitable

conditions can be moulded by the learned Arbitral Tribunal at the

O.M.P.(I) (COMM.) 138/2026 Page 55 of 56

relevant stage, if necessary, to ensure that neither party derives an

undue advantage pending final adjudication of their respective rights

and claims before the learned Arbitral Tribunal.

DECISION:

150. Accordingly, having regard to the peculiar facts and

circumstances of the present case, this Court is of the considered

opinion that interim protection deserves to be granted in favour of the

Petitioner so as to preserve the subject matter pending adjudication of

disputes through arbitration.

151. Accordingly, the Respondents are restrained from creating any

third-party rights, alienating, encumbering, transferring, or otherwise

dealing with the Collaboration Land in any manner prejudicial to the

rights and interests claimed by the Petitioner under the Binding HoT,

till such stage as may be considered appropriate upon an application

being moved by either of the parties before the learned Arbitral

Tribunal in accordance with law.

152. It is clarified that all observations recorded herein are purely

prima facie in nature and have been made solely for the purposes of

adjudication of the present petition under Section 9 of the A&C Act.

Nothing contained herein shall be construed as an expression on the

merits of the disputes between the parties, nor shall the same prejudice

the rights, claims, defences, or contentions of either party before the

learned Arbitral Tribunal, which shall adjudicate the disputes

independently and uninfluenced by any observations made

hereinabove.

153. The present Petition, along with pending Application(s), if any,

stands disposed of in the above terms.

O.M.P.(I) (COMM.) 138/2026 Page 56 of 56

154. No order as to costs.

HARISH VAIDYANATHAN SHANKAR, J.

MAY 29, 2026/sm/DJ