- (1.) M /s Divya Ashirwad Properties Private Limited, petitioner herein, has approached this court, by means of the present writ petition challenging order dated 28.03.2014 passed by Additional District Judge No.3, Jaipur Metropolitan, Jaipur, in Arbitration Application No.311/2014. Petitioner has filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, 'the Act of 1996') seeking interim measures, against the respondent, pending arbitral proceedings between them. That court thereby allowed the application of the respondents filed under Order 11 Rules 11 and 12 read with Section 151 of the Code of Civil Procedure (for short, 'the CPC'), in those proceedings, and required the petitioner to produce the documents referred to therein or file affidavit to the effect that those documents are not in its possession.
(2.) WRIT petitioner is a company, incorporated under the Indian Companies Act. It is engaged in the business of construction of houses, shops, commercial complexes, malls etc. The respondents, who owned the property situated at Plot No.F -125 and F -126 -127, RIICO Malviya Industrial Area, Jaipur, entered into collaboration agreement with the petitioner by signing Memorandum of Understanding (for short, 'the MOU') dated 19.05.2006 and thereafter renewed MOU dated 08.07.2006, for development of complex. As per the terms of the collaboration agreement, it was agreed that the entire cost of the construction required for development of complex including the charges and fees of architect, preparation of plans as also other statutory fees and charges and incidentals, security fees, irrevocable license fee, conversion charges, internal/external development charges, electricity and water security charges, fire fighting arrangements and equipments, and also including generator and transformer payable to the government and/or any other authority or for the provision of peripheral or external services, shall be wholly borne and paid by the petitioner. It was also agreed that the net sale proceeds of the project shall be shared between the petitioner and respondents in the ratio of 45:55. The respondents also executed a general power of attorney in favour of the petitioner in that behalf. Subsequently, a supplementary deed was executed between the parties on 14.10.2009, whereby clauses no.7, 8 and 41 of the collaboration agreement were amended to say that the net sale proceeds would be shared in the ratio of 55:45 between the petitioner and the respondents.
(3.) CLAUSE 46 of the collaboration agreement provides that all disputes and defences, arising out of or in connection with the agreement, shall be attempted to be resolved mutually through negotiation between the parties, failing which the same shall be referred to and be decided by the arbitration. Even as construction activities on the said plot were near completion, the respondents, vide notice dated 14.02.2014, sent through their Advocate, terminated the collaboration agreement dated 20.06.2007 alleging various defaults, mala -fide actions, misdeeds, failure and breach of covenant. It was thereupon that the petitioner filed the application under Section 9 of the Act of 1996 before the court below praying for a direction to the respondents not to transfer/sale/mortgage or create any charge through registered sale deed or agreement etc. on the property. The respondents, instead of filing reply to the aforesaid application, filed an application under Order 11 Rules 12 and 14 read with Section 151 of the CPC praying therein that the petitioner be directed to produce documents mentioned therein on the ground that the said documents are necessary for preparing reply to the application. Learned court below, by the impugned order dated 28.03.2014, has allowed the application, which is assailed in the present writ petition. Shri Sandeep Taneja, learned counsel for the petitioner, has argued that requirements of Order 11 Rules 12 and 14 of the CPC have not at all been satisfied and therefore learned court below has committed a serious error of law in allowing the application and directing production of documents. He argued that an order under the aforesaid provision can be passed only when the documents sought to be produced are related to the matter in question and would be necessary to decide the matter and are in possession of the other side. In the present case, there is no pleading in the application filed by the respondent that the documents sought to be produced are related to the matter in question and same are necessary to decide the application under Section 9 of the Act of 1996. Learned court below has failed to address this issue and record its finding on this aspect. The impugned order thus suffers from non -application of mind. Learned counsel, in support of this argument, has relied on judgment of the Gujarat High Court in Gammon India Limited Vs. Sheth Estate Developers Private Limited and Others,2010 Supp2 ArbLR 142(Gujarat).;