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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.1298 OF 2026

M/s. Gagan Ace Developers and Anr. ...Petitioners

versus

M/s. Choice and Ors. … Respondents

Mr. G.S.Godbole, Sr. Advocate with Mr. Sitesh Sharma i/by Mr. Vijay

Upadhyay, for Petitioners.

Mr. Sandesh Shukla with Dr. Milind Hartalkar i/by Mr. Tejas P. Hartalkar, for

Respondent Nos.1 and 2.

CORAM: N.J.JAMADAR, J.

RESERVED ON : 4 MARCH 2026

PRONOUNCED ON : 18 MARCH 2026

JUDGMENT :

1.Rule. Rule made returnable forthwith, and, with the consent of the

learned Counsel for the parties, heard finally.

2.By this Petition under Article 227 of the Constitution of India, the

Petitioners take exception to an order dated 25 September 2025 passed by

the learned District Judge, Pune, whereby the application for stay to the

execution and operation of the award under Section 36 of the Arbitration and

Conciliation Act, 1996 (the Act, 1996) came to be partly allowed, subject to the

Petitioners – Applicants in the application under section 34 of the Act, 1996

depositing the entire award amount along with interest accrued thereon, till

the date of the deposit.

3.The background facts necessary for the determination of this Petition,

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can be summerized as under :

2.1The Bombay Society of Franciscan Sister of Marry (R3) – a trust

registered under the Maharashtra Public Trusts Act, 1950, was the original

owner of the large parcel of land bearing final plot No.153, situated at Village

Ghorpadi, within the limits of Pune Municipal Corporation. Respondent No.3

divided the larger land into 16 sub-plots. On 26 January 1980, Respondent

No.3 entered into a development agreement with M/s. Choice (R1), a

partnership firm, of which Atul Mahadeo Bhagat (R2) is a partner. Under the

said Development Agreement, Respondent No.1 was to construct buildings

on sub-plot Nos.13 to 15 and deliver the same to Respondent No.3 for its use

and occupation, and, thereafter, develop and construct buildings on sub-plot

Nos.1 to 8 and sell/transfer the same.

2.2Eventually, sub-plot Nos.2 and 3 and 4 to 8 were permitted to be

amalgamated. The Government of Maharashtra passed an order directing

transfer of 30% of the constructed area - residual self-contained units, to the

Government under the provisions of the Urban Lands (Ceiling and

Regulation) Act, 1976.

2.3Development commenced on amalgamated sub-plot Nos.4 to 8.

However, the development could not be completed. Further Joint Venture

Agreements and Development Agreements were entered into by Respondent

No.1 with the third parties, who are impleaded as Respondent Nos.4 to 8.

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Despite the involvement of Respondent Nos.4 to 8 at various stages, further

development of sub-plot Nos.4 to 8 on a portion of land by consuming

unutilized FSI of about 9150 sq.ft. and the available TDR could not be carried

out. The Respondents, thus, decided to entrust the future development in

respect of the said project to the purchaser/developer interested to undertake

the same.

2.4Thus, the Respondents agreed to sell/assign unutilized potential

residual FSI of 9150 sq.ft. to be used on Plot No.5 together with entire present

and future TDR benefits accruing and arising for the entire aggregate area of

the sanctioned layout plot Nos.4 to 8 having total area 5876.4 sq. mtrs., other

benefits and residual accruals available to the said plot Nos.4 to 8 to be used

and utilized on the plot No.5 thereof, in favour of the Petitioners. Accordingly,

agreements for sale cum transfer of rights to use TDR came to be executed

between the Petitioners and the Respondents, on 17 November 2015. Under

the terms of the said agreement, the Petitioners were to develop the subject

property to the fullest extent permissible, including right to utilize TDR therein,

in accordance with the DCR and agreed to pay aggregate consideration of

Rs.15 Crores to the Respondent No.1 and Respondent Nos.4 to 8

apportionable as per their specific directions and requirements.

2.5A Deed of Confirmation came to be executed on 4 May 2017.

2.6Disputes arose between the Respondent No.1 and the Petitioners over

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the performance of the terms of the contract between the parties, especially in

regard to the construction of Building B out of the sanctioned plan.

Respondent Nos.1 and 2 – claimants, asserted that the Petitioners carried out

construction over the lands beyond the rights granted to the Petitioners under

the Agreement dated 17 November 2015. The Petitioners erected

constructions over a portion of Plot No.6 in breach of the terms of the

Agreement dated 17 November 2015. Secondly, the claimants asserted,

Petitioners failed to comply with the conditions of the ULC order passed by

the Government of Maharashtra, and, instead, obtained a waiver by payment

of premium, and, thereby, enriched themselves at the cost of the claimants.

2.7Eventually, arbitration was invoked by the claimants. A three-member

Arbitral Tribunal came to be appointed. The Arbitral Tribunal, after appraisal

of the evidence and material, gave a split award. Hon’ble Shri Justice

S.R.Sathe (Retd.), the Presiding Arbitrator, gave a minority award, dismissing

the claim of the claimants. Mr. R.R.Deshmukh and Mr. Anurag M. Jain, Co-

Arbitrators, gave a majority award and allowed the claim of the claimants.

2.8The Petitioners (Respondent Nos.1 to 3 before the Arbitral Tribunal),

were directed to pay to the claimants an amount of Rs.7,81,18,000/- together

with interest @ 18% p.a from the date of filing of the claim till the realization.

The majority award proceeded on the premise that, by erecting constructions

over some portion of sub-plot No.6, the Petitioners committed breach of the

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terms of the Development Agreement dated 17 November 2015. Thus, the

claimants were entitled for compensation. Placing reliance on the report of

the Architect - Commissioner, the Arbitral Tribunal recorded a finding that the

excess construction over sub-plot No.6 was to the extent of 1396.70 sq.mtrs.,

and, thus, applying the ready reckoner rate, 40% share of the claimants in the

said construction was computed at Rs.2,92,35,724/-.

2.9Secondly, the Arbitral Tribunal held, the Petitioners had no right under

the Development Agreement or the Deed of Confirmation to obtain waiver of

the conditions contemplated under the ULC order, and, thus, computed the

net value of the flats, which became available to the Petitioners for sale in the

open market, after deducting the amount of premium paid by the Petitioners

to the Government. The Arbitral Tribunal assessed 40% share of the

claimants therein at Rs.4,68,82,000/-.

2.10In addition, under the terms of the Development Agreement, the

claimants were entitled to a sum of Rs.20 Lakhs. Resultantly, the Arbitral

Tribunal proceeded to pass the award, in the aggregate sum, as noted above.

2.11The Petitioners preferred an application to set aside the award under

Section 34 of the Act, 1996, before the District Court at Pune. In the said

application, the Petitioners sought stay to the execution and operation of the

award impugned therein, by filing an application (Exh.5) under Section 36 of

the Act, 1996.

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2.12By the impugned order, the learned District Judge was persuaded to

grant stay to the execution and operation of the award, subject to the deposit

of the entire award amount along with interest accrued thereon.

2.13Being aggrieved, the Petitioners have invoked the writ jurisdiction.

4.I have heard Mr. G.S.Godbole, learned Senior Advocate for the

Petitioners, and Mr. Shukla, learned Counsel for Respondent Nos.1 and 2, at

some length. With the assistance of the learned Counsel for the parties, I

have perused the material on record, including the arbitral award and the

impugned order.

5.Mr. Godbole, learned Senior Advocate for the Petitioners, submitted

that the learned District Judge has imposed a condition of deposit of the entire

award amount along with interest accrued thereon, in a rather mechanical

manner. Glaring infirmities in the majority award were not all adverted to by

the learned District Judge. Under no circumstances, the arbitral Tribunal

could have passed the impugned award as the claim was in the nature of

damages without proof of actual loss. The Arbitral Tribunal ventured into the

exercise of hazardous guesswork to arrive at the compensation, to which the

claimants were found entitled to. In such circumstances, the execution and

operation of the impugned award deserves to be stayed unconditionally.

6.Taking the Court through the recitals in the Development Agreement

dated 17 November 2015 and the pleadings before the Arbitral Tribunal, Mr.

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Godbole made a strenuous effort to demonstrate that the parties fully

understood that the development of building B in accordance with the

sanctioned building plan was not possible on Plot No.5 only. The parties were

fully cognizant of the fact that a portion of Plot No.6 was required to be utilized

to exploit the full developmental potential of Plot No.4 to 8 collectively.

7.It was further submitted that, under the Development Agreement, the

claimants were not entitled to claim any share in regard to the saleable

portion which would become available for the Petitioners. As the Petitioners

had got waiver of condition to surrender units, upon payment of premium to

the State Government, and the claimants were completely divested of any

interest in the development potential of the subject property, the claimants

were not entitled to claim any share in the flats which became available to the

Petitioners, upon payment of premium to the Government.

8.In opposition to this, Mr. Shukla, learned Counsel for Respondent Nos.1

and 2 submitted that the impugned order passed by the learned District Judge

does not suffer from such legal infirmity or perversity as would warrant

interference in exercise of the supervisory jurisdiction under Article 227 of the

Constitution. The learned District Judge has dealt with the contentions raised

on behalf of the Petitioners, rather elaborately, and has recorded a justifiable

finding. Thus, the Petition does not deserve to be entertained against an

interim order which grants stay to the award subject to the condition of deposit

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of the award amount.

9.Mr. Shukla submitted that, it is fairly well settled that, where the award

is in monetary terms, if the stay is granted to the execution and operation of

the award under Section 36 of the Act, 1996, the award-debtor shall be

required to deposit 100% of the award amount. In the case at hand, Mr.

Shukla would urge, the Petitioners have failed to make out any ‘exceptional

case’ for extending the benefit of unconditional stay to the execution and

operation of the award. Neither the award passed by the Arbitral Tribunal can

be said to be perverse, nor riddled with patent illegalities, nor ex-facie

untenable. On the contrary, Mr. Shukla would urge, all the contentions which

were sought to be urged before this court, were canvassed before the Arbitral

Tribunal and have been repelled by the Arbitral Tribunal by ascribing

sustainable reasons. To buttress these submissions, Mr. Shukla placed

reliance on an order passed by the Supreme Court in the case of Popular

Caterers V/s. Ameet Mehta and Ors.

1

.

10.At the outset, it is necessary to note that, from a bare perusal of the

material on record and the award passed by the Arbitral Tribunal, there does

not seem much controversy over the fact that the Petitioners have carried out

construction over a portion of Plot No.6. The arbitral tribunal has in terms

recorded that the Petitioners did concede that they had carried out

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construction over a portion of plot No.6.

11.Mr. Godbole, learned Senior Advocate for the Petitioners, submitted

that, even if the court were to proceed on the premise that the Petitioners

have carried out construction over a portion of Plot No.6, yet, that, by itself,

would not sustain the impugned award. A valiant attempt was made by Mr.

Godbole to drive home the point that the construction over a portion of Plot

No.6 was squarely in the contemplation of the parties.

12.It would be contextually relevant to note that, an endeavour was made

before the arbitral tribunal to show that the Development Agreement dated 17

November 2015 and the Deed of Confirmation dated 4 May 2017 did not

reflect the real intent of the parties. It was also sought to be contended that

there was an inadvertence error in recording the terms of the contract in the

said instruments.

13.It is well recognized that the intent of the parties to a commercial

contract is required to be ascertained from the words employed by the parties

in the agreement and the express terms thereof. It is impermissible for the

Courts to construe or make a new contract for the parties. Therefore, the

submission that the terms of the bargain between the parties as incorporated

in the Development Agreement dated 17 November 2015 and the Deed of

Confirmation dated 4 May 2017, did not reflect the real intent of the parties,

cannot be readily acceded to.

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14.Schedule II to the Development Agreement dated 17 November 2015

makes it abundantly clear that the said agreement was in respect of unutilized

potential residual FSI of 9150 sq.ft. usable on plot No.5 together with TDR

benefits accuring upon the sanctioned layout plot Nos.4 to 8 having total area

as per Property Card admeasuring 5876.4 sq. mtrs.

15.The following recitals in the Development Agreement also deserve to

be noted :

“AND WHEREAS pursuant to mutual negotiations,

the owners, erstwhile Developers / Stakeholder and

the Consenting Party have now agreed to sell /

assign the unutilized potential residual FSI of 9150

sq. ft. to be used on Plot No.5 together with entire

present and future TDR benefits accruing and arising

for the entire aggregate area of the sanctioned layout

plot Nos.4 to 8 having total area 5876.4 sq. mtrs.

Other benefits and residual accruals available to the

said plot Nos.4 to 8 to be used and utilized on the plot

No.5 thereof and more particularly described in

Schedule II hereunder and hereinafter referred to as

the “said Property.

………..

AND WHEREAS, the Purchaser / developer further

represented that if shall comply with the orders of the

ULC and shall allot and grant the balance unallotted

flats as per list above remained to be allotted under

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the said ULC order.”

16.The intent of the parties, as is evincible from the description of the

property in Schedule II and the aforesaid recitals, prima facie, appears to be

that, the Development Agreement was confined to Plot No.5, though TDR

benefits accruing upon the sanctioned layout Plot Nos.4 to 8 were also to be

utilized on the said Plot No.5. The Deed of Confirmation dated 4 May 2017,

in a sense, seals the issue. The relevant covenant in the said Deed of

Confirmation reads as under :

“It is made absolutely clear that this Deed does not

confer upon the Purchasers / Developers any right to

make any construction of any nature whatsoever on

any plot other than Plot No.5 on which, however, the

Owners / Developers can exploit and use the entire

residual potential & TDR of Plot Nos.4 to 8 in terms of

the Agreement dated 17 November 2015.”

17. Keeping in view the aforesaid contractual stipulations and rather

incontrovertible position that the Petitioners have erected construction over a

portion of Plot No.6, the justifiability of the impugned order granting stay to the

execution and operation of the award of the Arbitral Tribunal, deserves to be

decided. The provisions contained in Section 36 of the Act, 1996, on the

touchstone of which the legality and correctness of the impugned order

deserve to be evaluated, read as under :

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“36.Enforcement – (1)……..

(2)Where an application to set aside the arbitral award

has been filed in the Court under section 34, the filing of

such an application shall not by itself render that award

unenforceable, unless the Court grants an order of stay of

the operation of the said arbitral award in accordance with

the provisions of sub-section (3), on a separate application

made for that purpose.

(3)Upon filing of an application under sub-section (2) for

stay of the operation of the arbitral award, the Court may,

subject to such conditions as it may deem fit, grant stay of

the operation of such award for reasons to be recorded in

writing :

Provided that the Court shall, while considering the

application for grant of stay in the case of an arbitral award

for payment of money, have due regard to the provisions of

grant of stay of a money decree under the provisions of the

Code of Civil Procedure, 1908.

Provided further that where the Court is satisfied that

a prima facie case is made out that, -

(a)the arbitration agreement or contract which is

the basis of the award; or

(b)the making of the award,

was induced or effected by fraud or corruption, it shall

stay the award unconditionally pending disposal of the

challenge under section 34 to the award.”

18.A plain reading of the aforesaid provisions would indicate that the filing

of an application under section 34 of the Act, 1996 shall not, by itself, operate

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as a stay to the enforcement of the arbitral award. In the event, an application

for stay to the award is filed, in such an application under Section 34 of the

Act, 1996 the Court has discretion to grant stay, which may be subject to such

conditions as it may deem fit. However, while granting stay to the arbitral

award, the Court shall have “due regard to the provisions of the Code of Civil

Procedure, 1908” for grant of stay of money decree. If a case falls within the

ambit of the second proviso to sub-section (3) of Section 36, it is mandatory

for the court to say the award unconditionally. For that, the Court has to

record a prima facie satisfaction that, either arbitral agreement or contract

which is the basis of the award, or the making of the award was induced or

effected by fraud or corruption. If that is not the ground of challenge to the

arbitral award, the case would fall within the ambit of the first proviso and then

the Court is expected to have due regard to the provisions of the Code, for

grant of stay of money decree.

19.In the case of Pam Developments Pvt. Ltd. V/s. State of West

Bengal

2

, the Supreme Court has clarified that the phrase ‘have due regard to

the provisions for grant of stay to the money decree’ under the provisions of

the Code, 1908, does not imply that the court is enjoined to determine an

application for stay of an arbitral award for payment of money ‘in accordance

with the provisions of the Code’. The said expression, therefore, does not

2(2019) 8 SCC 112

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partake the character of a legislative edict, but operates as a guiding principle.

The observations of the Supreme Court in paragraph No.20 are instructive,

and, hence, extracted below :

“20.In our view, in the present context, the phrase used is

‘having regard to’ the provisions of CPC and not ‘in

accordance with” the provisions of CPC. In the latter case, it

would have been mandatory, but in the form as mentioned in

Rule 36(3) of the Arbitration Act, it would only be directory or

as a guiding factor. Mere reference to CPC in the said

Section 36 cannot be construed in such a manner that it

takes away the power conferred in the main statute (i.e.

Arbitration Act) itself. It is to be taken as a general guideline,

which will not make the main provision of the Arbitration Act

inapplicable. The provisions of CPC are to be followed as a

guidance, whereas the provisions of the Arbitration Act are

essentially to be first applied. Since, the Arbitration Act is a

self-contained Act, the provisions of the CPC will apply only

insofar as the same are not inconsistent with the spirit and

provisions of the Arbitration Act.” (emphasis supplied)

20. If the Courts under Section 34 of the Act, 1996 were to have due

regard to the provisions of the Code in regard to the grant of stay of a money

decree, the three-pod requirements under the provisions of Order XVI Rule

5(3) need to be kept in view, namely, (i) whether the applicant would suffer

substantial loss, if stay is declined; (ii) whether the application suffers from

unreasonable delay; (iii) whether security has been furnished by the applicant

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to satisfy the decree.

21.A profitable reference in this context can be made to a judgment of the

Supreme Court in the case of Lifestyle Equities C.V. and Anr. V/s. Amazon

Technologies Inc.

3

, wherein after an elaborate analysis of the provisions and

the precedents, including the implication of the provisions contained in

Section 36 of the Act, 1996, though the said case did not arise out of an

arbitral award, the Supreme Court culled out the principles in paragraph

No.134. The relevant propositions read as under :

“134…..

(VIII)For the grant of benefit of an unconditional stay of

execution of a decree, an exceptional case has to be made

out before the appellate court. This discretion of the

appellate court to grant an unconditional stay of execution of

decree must not be exercised arbitrarily. It must be

exercised sparingly and only if an exceptional case is made

out for such stay in view of the peculiar facts and attending

circumstances of the case before it.

(IX) A lodestar for bringing a case within the purview of

“exceptional case” for the purpose of granting benefit of

unconditional stay of the execution of money decree by the

appellate court would be, if the money decree in question: -

(i) is egregiously perverse;

(ii) is riddled with patent illegalities;

(iii) is facially untenable; and/or

(iv) such other exceptional causes similar in nature.

(X) For the purpose of the grant or refusal of stay of

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execution of the decree under Rule 5 of Order XLI, it is

immaterial whether the decree is a money decree or any

other decree. The language couched in the said provision is

very clear. Order XLI, Rule 5 of the makes no distinction

between a money decree and other decrees, and the said

provision applies with full rigour in both instances. Yet as a

rule of prudence and established practice evolved over a

period of time, no stay of execution of a money decree

should be granted, except on the condition that the decretal

amount be deposited in the court. However, such condition

for deposit cannot be said to be mandatory and non-

prescription thereof does not operate as a bar to staying the

execution of a money decree.”(emphasis supplied)

22.In the case of Popular Caterers (supra), on which reliance was placed

by Mr. Shukla, the Supreme Court has again emphasised that, while granting

unconditional stay to the execution of the arbitral award, the High Court

should have posed unto itself a question, whether the award-debtors could be

said to have made out an exceptional case, for the purpose of granting benefit

of unconditional stay of the execution of the award, which is in the form of a

money-decree. A reference was made to the propositions enunciated in

Lifestyle Equities (supra).

23.Whether the Petitioners have succeeded in making out an exceptional

case of the nature, illustratively expounded in the case of Lifestyle Equities

(supra), is the moot question ? As noted above, there is not much

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controversy over the first component of the claim, namely, the erection of

construction over the portion of Plot No.6. On the second component of the

claim premised on the availability of the flats, which were to be surrendered to

the Government by the Petitioners, upon obtaining a waiver of the said

condition, the facts that such waiver has been obtained, albeit upon payment

of premium, and, those flats became available for free sale, are also not much

in contest.

24.In the Development Agreement (extracted above), the Petitioners had

specifically represented that the Petitioners shall comply with the orders of

ULC and shall allot and grant the balance unallotted flats under the said ULC

order. Recitals in the development agreement further record that the

Petitioners had a right to sell – transfer the units to be developed on the

subject properties (excluding the units allocable under the order of exemption

under ULC). In this backdrop, the Arbitral Tribunal has recorded a finding

that, neither under the Development Agreement nor under the Deed of

Confirmation, the Petitioners were given a right and option to obtain a waiver

of the condition under ULC order and, thus, the said action of the Petitioners

was beyond the scope of the Development Agreement.

25.Prima facie, the aforesaid finding is borne out by the contractual

instruments between the parties. The legality and validity of the award based

on the aforesaid findings would be examined by the District Court on the well

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recognized parameters for setting aside the arbitral award. However, it cannot

be said that the arbitral award is egregiously perverse on the said count.

26.The thrust of the submission of Mr. Godbole was that the arbitral award

suffers from the patent illegality as it awards a claim for damages without

actual proof of loss. Reliance was placed on an order of this Court in the

case of Alkem Laboratories Ltd. V/s. Issar Pharmaceuticals Pvt. Ltd.

4

,

wherein a prima facie view was recorded that the arbitral award in the said

case suffered from perversity as well as patent illegalities as the learned

Arbitrator therein had ignored the settled law that in regard to the claim for

damages actual loss was required to be proved.

27.I have perused the arbitral award to ascertain, albeit prima facie,

whether the arbitral award suffers from patent illegality and perversity which

stares in the face. The fulcrum of the Petitioners’ contention is that the

compensation was awarded by the Arbitral Tribunal sans evidence of actual

loss. Primarily, two pieces of material were considered by the arbitral tribunal.

First, the report of Architect – Commissioner indicating the area of excess

construction and, second, the value of the construction as per the ready

reckoner rate. First is rather an objective fact. The second is in public

domain.

28.At this stage, while the challenge to the arbitral award awaits

4IA 377 of 2024 in Comm. Arb. Petition No.389 of 2023 dt. 5 Feb. 2024

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determination by the District court, this Court does not consider it appropriate

to delve more on this aspect of the matter. Suffice to note that the

consideration of the aforesaid material, prima facie, does not appear to be an

exercise riddled with patent illegality or perversity.

29.The conspectus of aforesaid consideration is that the Petitioners cannot

be said to have succeeded in making out an exceptional case. Nor could it be

demonstrated that the Petitioners would suffer a substantial loss if the

execution of the award is not stayed. The fact that the Petitioners have

suffered an arbitral award, which directs payment, by itself, cannot be

construed as a substantial loss. Nor there is material to show that the

Petitioners have given adequate security for the due performance of the

arbitral award. Thus, viewed from any perspective, no case for grant of

unconditional stay was made out. Resultantly, the learned District Judge

cannot be said to have committed any error in the exercise of discretion in

granting stay to the execution of the award upon deposit of the award amount.

The Writ Petition, therefore, deserves to be dismissed.

30.Hence, the following order :

ORDER

(i)The Writ Petition stands dismissed.

(ii)Rule discharged.

(iii)By way of abundant caution, it is clarified that the consideration is

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confined to test the legality, propriety and correctness of the impugned order

and this court may not be understood to have expressed any opinion on the

merits of the application under Section 34 of the Arbitration Act, 1996 and the

District Court shall decide the same on its own merits and in accordance with

law, without being influenced by any of the aforesaid observations.

(iv)No costs.

( N.J.JAMADAR, J. )

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