22 April 2021 | Tirupati Shopping Centre Premises Co-op Society Ltd. v. Shabayesha Construction Company Pvt. Ltd. | Writ Petition (Stamp) No. 9105 of 2021 | RD Dhanuka & VG Bisht JJ | 2021 SCC OnLine Bom 623

The respondent, a real estate developer, executed agreements with the unit purchasers and agreed in a memorandum of understanding (MoU) to execute the conveyance deed in favour of the petitioner society. Later, the petitioner initiated proceedings under Section 11 of the Maharashtra Ownership Flats Act, 1963 against the respondent and the authority allowing the application directed registration of an ex parte deemed conveyance deed.

Later, the respondent commenced an arbitration. The petitioner applied under Section 16 ACA saying the arbitrator had no jurisdiction because a tribunal could not ever examine the validity of a quasi-judicial order. The respondent replied that its claims were for the specific performance of the MoU. The arbitrator rejected the application, and the petitioner challenged that ruling in a petition under Article 227 of the Constitution of India.

1. The tribunal rightly held that the parties are not barred from establishing their right independent of the deemed conveyance certificate. An order of the authority under Section 11 MOFA does not create a title conclusively. It has to be adjudicated by a civil court.
   
2. A claim of specific performance of the MoU and the monetary claims were for enforcement of subordinate rights and action in personam. Therefore, they could be adjudicated only by an arbitral tribunal, given the arbitration agreement.
   
3. No case of exceptional rarity has been made out. There is no patent lack of inherent jurisdiction. The matter does not require interference in light of the law laid down in Navayuga Engineering Company v. Bangalore Metro Rail Corporation Limited, Civil Appeal No. 1098-1099 of 2021, Deep Industries Limited v. Oil and Natural Gas Corporation Limited and another, (2020) 15 SCC 706, and Punjab State Power Corporation Limited v. Emta Coal Limited and another, Special Leave Appeal (C) No. 8482 of 2020.

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