- (1.) This order will dispose of three connected cases, i.e., FAO No.1620 of 2014, preferred by the appellants and CR No.2837 of 2014 and FAO No.2383 of 2014 filed by the respondent as common questions of law and facts are involved in all the three cases. The parties contesting and the subject matter are the same. The facts are taken from FAO No.1620 of 2014 for convenience.
(2.) This is an appeal under section 37 of the Arbitration and Conciliation Act, 1996 (for brevity the Act) against the order dated 12th February, 2014 passed by the learned District Judge, Gurgaon on an application filed under section 9 of the Act by respondent M/s Bestech India Private Limited (in short Bestech) against a consortium of five land owning companies of which one representing the rest for the purposes of this order is M/s Best on Health Limited/appellant No 1 (all five clubbed in short as 'BOHL') praying for vacation of interim measures of protection of the Project Land which is subject matter of a Term Sheet drawn and signed in a strictly private and confidential document executed between BOHL etc. and Bestech on 3rd September, 2012 to develop an integrated township over the Project Land. BOHL owns the land. Bestech is the developer of the Project Land inducted by BOHL to make a small kingdom for them in a township proposed in a part of Gurgaon where the land lies. They came together for common purposes for profit sharing @ 50:50 but have fallen apart in spiralling prices of realty leading to the present acrimonious litigation. The French anarchist philosopher and economist Pierre-Joseph Proudhan in his 1840 book 'What is property Or, an Inquiry into the Principle of Right and of Government" said "If I were asked to answer the following question: What is slavery and I should answer in one word, It is murder, my meaning would be understood at once. No extended argument would be required to show that the power to take from a man his thought, his will, his personality, is a power of life and death; and that to enslave a man is to kill him. Why, then, to this other question: What is property! may I not likewise answer, It is robbery, without the certainty of being misunderstood; the second proposition being no other than a transformation of the first Proudhon propounded the theory that the origin of property is theft- In its origin it is the right of first occupancy sanctioned by law but 'the modern legists dissatisfied with this brutal definition claim that property is based upon labour'. The owners of land in this case must be occupants either second or third hand if not further remote and claim absolute rights to property as they can and must as they are clear titleholders to the exclusion of rights of the rest of the world so long as not agreed to be shared or parted with to the limits agreed upon. But from which title deeds they have voluntarily and partially parted away certain rights and interest on the Project Land in terms of the Term Sheet, Agreement, Powers of Attorney and the Collaboration Agreement to the specialized labour of the respondent Bestech brought into the picture on developer's request offer to help them together erect a magnificent edifice, a proposed township for them to enjoy the usufruct from Project Land. This would be at the cost of the public presently not in sight, but are the future owners of villas, dwelling units, offices and shops on the Project Land. By-standers in a terrible war of attrition fought on rapidly diminishing urban land. There is nothing morally or ethically wrong in the enterprise in the present day context. It is the business of the day especially in Gurgaon to make townships. Land is precious but labour is buyable at cheap cost, but both the warring parties appear committed to building a modern Nation. That is very good thinking. People need a shelter to live in, whatever it costs and wherever it lies, the means justifying the ends. To this end a large number of legal principles are pressed in this case on either side for the consideration of this Court which fairly accounts for the length of this order after five effective days spent hearing very fine arguments addressed by both the learned senior counsel assisted by a battery of learned counsel to press their respective cases on the narrow issue; whether or not should there be a protective stay on the disputed property injuncting BOHL from creating third party rights on the Project Land pending arbitration proceedings.
(3.) Leaving aside all that, the disputed Term Sheet in this case begins with the opening gambit:"This binding Term Sheet outlines the terms and conditions of a proposed joint development agreement " In the recital next following, the parties agree that "...This Term Sheet shall be followed by the execution of definitive agreements between the parties as more specifically enumerated in this Term Sheet". The words 'definitive agreement' or "definitive agreements" occur in twelve distinct recitals found at different places spread over 8 pages that make the Term Sheet followed by the 9th page where only signatures and stamps of the parties are found recorded in token of acceptance of the terms of agreement, which is the end sheet of the contract. BOHL says that it is not a contract but a contract to enter into a contract, on this I would come later. The Term Sheet, however, contemplates formation of definitive agreements to be entered in the future to realize the Project dreamt. Many of the rights and liabilities which the parties wished to create for themselves are expressed and preserved in the document. The word 'agreement' has been used in different places in the Term Sheet either in the plural or in the singular depending on the context in which they are used. The total Project Land is approximately 108.713 acres situated at villages Harsaru and Hyatpur, in District Gurgaon in the State of Haryana.;