JUDGMENT : SOMASEKHAR SUNDARESAN, J. Context and Factual Background: 1. This Petition is an appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 (“the Act”) impugning an order (originally passed on January 4, 2025 and later modified on April 7, 2025, collectively, “Impugned Order”) passed by a Learned Arbitral Tribunal under Section 17 of the Act. Except for a minor modification, for all practical purposes of this Petition, the original order of January 4, 2025 remains intact. 2. The core challenge made by the Petitioner, Shree Naman Developers Private Limited (“Naman”) is that the Learned Arbitral Tribunal grossly erred in not factoring in two adjustments of amounts proposed by Naman against the amount of security that the Respondent, Premier Textile Processors (“Premier”), has been directed to post. Premier is the claimant in the arbitration proceedings. Indeed, Naman also questions the very need for any intervention under Section 17 , among others, on the premise that the approach by Premier to the Learned Arbitral Tribunal under Section 17 is premature. 3. The factual matrix relevant for purposes of adjudication of this Petition is very narrow. A development agreement dated December 27, 2010 (“Development Agreement”) was executed between the parties in respect of developing land admeasuring approximately 8959.50 sq. mtrs. Initially, Premier was entitled to 45% of the constructed area while Naman was entitled 55% of the constructed area. Eventually, the parties renegotiated some facets of the sharing between them and executed a Supplemental Development Agreement on July 21, 2017, to alter the sharing terms to Premier being entitled to 45% of the net sales revenues i.e. the revenues earned from the project as reduced by applicable amounts under agreed heads such as the advertising and brokerage. 4. The project entails construction of six towers. It is a common ground that five towers have been constructed, with Occupation Certificate (“OC”) having been issued in respect of four towers, and the fifth tower having been completed and awaiting OC. In other words, the project is substantially completed. According to Naman, nothing is payable to Premier until the entire development of all the six towers is totally completed. It is also common ground that over 250 flats have already been sold and revenues from such sales have been realized. In other words, the project is substantially completed. According to Naman, nothing is payable to Premier until the entire development of all the six towers is totally completed. It is also common ground that over 250 flats have already been sold and revenues from such sales have been realized. However, Premier, the owner of the land on which the development has taken place, has till date received nothing beyond what was paid at the time of executing the Development Agreement. There is some variation in the actual amount received by Premier, but the difference is in a small order of magnitude and not relevant for purposes of this Petition. 5. The Learned Arbitral Tribunal has dealt with each of the issues tabled by the parties and has directed that a bank guarantee or a fixed deposit shall be provided by Naman to the tune of Rs.93.54 crores unconditionally. The computation of such amount is based on information made available on sales revenue until September 25, 2023. The impugned order further directs a full disclosure in respect of all sales revenue generated after September 25, 2023 and until December 31, 2024, with such information having to be provided by January 15, 2025. Based on such information, creation of further security in the same terms i.e. provision of unconditional bank guarantee or a creation of a fixed deposit to be maintained in a nationalized bank to be renewed from time to time for a term not less than six months at a time, has also been directed. The deadline for completing this exercise was fixed as February 15, 2025. Going forward, the Learned Arbitral Tribunal was pleased to direct monthly disclosure of revenues for each calendar month by the tenth day of the next calendar month, so that the parties would have no doubt about the value to be shared going forward. Analysis and Findings: 6. Having examined the record with the assistance of Learned Senior Counsel for the parties, I find that no case has been made out for interference with the Impugned Order. The reasons for such conclusion are articulated in the following paragraphs. Disclosure Obligations Imposed: 7. The Learned Arbitral Tribunal’s direction to Naman to make disclosure of the revenues generated until December 31, 2024 and monthly disclosures thereafter, is well founded. The reasons for such conclusion are articulated in the following paragraphs. Disclosure Obligations Imposed: 7. The Learned Arbitral Tribunal’s direction to Naman to make disclosure of the revenues generated until December 31, 2024 and monthly disclosures thereafter, is well founded. After the Development Agreement was executed way back in 2010, Premier has been none the wiser about the actual status of the development and the revenues earned therefrom. Despite being the owner of the land, and being entitled to 45% of the net sales revenues, there has been no provision by Naman of any information on Premier’s entitlements. 8. Consequently, there should be no basis to interfere with the directions mandating disclosure of information. There is nothing perverse in the direction to simply make disclosures of revenues to the very person with whom the revenues are meant to be shared. Indeed, the direction is in line with the mandate of preserving the subject matter of the arbitration agreement. No fault can be found with it. I am informed that the disclosures have indeed been made even pending these proceedings. This facet of the Impugned Order does not need any further elaboration. Leave and License: 9. Naman claims that the occupation by Premier of Naman’s premises admeasuring approximately 4480 sq.ft. in Bandra Kurla Complex (“BKC”) between January 2011 and December 2023 should result in an “adjustment” of Rs. 58.03 crores against what may be owed to Premier, resulting in a downward adjustment to the amount of security to be posted. 10. The Learned Arbitral Tribunal has rightly observed that there is no agreement that has been brought to bear to demonstrate the contract that governs the usage of the BKC premises by Premier. The Development Agreement and the Supplemental Development Agreement contain no allusion to the usage of the premises in BKC. The terms on which the license fee arrears are claimed by Premier are emanating from what would at best be an oral agreement claimed by Naman. That agreement may be amenable to specific performance and damages but could never contain an arbitration clause in view of Section 7 of the Act necessitating a written arbitration agreement. That apart, what the terms of such occupation of the BKC premises were; what the conditions of usage were; and the forward-looking objective, if any, of such an arrangement, are all seriously contested between the parties. That apart, what the terms of such occupation of the BKC premises were; what the conditions of usage were; and the forward-looking objective, if any, of such an arrangement, are all seriously contested between the parties. Consequently, the arbitral tribunal was right in not being drawn into implications of the usage of BKC office premises for the disputes and differences under the arbitration agreement. 11. It is also noteworthy that the Supplemental Agreement was executed on July 21, 2017. By this time, Premier would have used the BKC office premises for at least six years. If the Development Agreement and the usage of the BKC premises had any linkage, in my view, it would stand to reason that there would have been some allusion to the same in Supplemental Agreement, particularly when, the parties set out to rewrite and amend certain terms of their contract, with particular regard to entitlement to monies earned on the project. That being absent, no fault can be found with the Impugned Order for rejecting any relevance for the usage of the BKC premises. Delay in Factory Closure: 12. Naman would contend that the closure of the factory at the premises handed over by Premier to Naman for redevelopment, was meant to be obtained by Premier within 120 days from the signing of the Development Agreement. Premier is said to have hopelessly defaulted in achieving a timely closure of the factory, and that led to a further expenditure incurred by Naman ostensibly in the sum of Rs. Rs. 27.47 crores. 13. The Learned Arbitral Tribunal has found, and in my opinion, rightly, that this is a very vague contention. That apart, going by when the Development Agreement was first executed, this contention is late in the day for deterring the Learned Arbitral Tribunal from considering the factual matrix obtaining now and formulating an interim arrangement to protect Premier’s entitlements to its share of revenues today, and also to adjust the competing considerations between the parties. RERA; Lenders; and Intervention being Premature: 14. RERA; Lenders; and Intervention being Premature: 14. The explanation from Naman before the Learned Arbitral Tribunal for not making any payment to Premier is that:- a) under law governing redevelopment administered by the Maharashtra Real Estate Regulatory Authority (“RERA”) cash flows from the project have to be maintained in the designated escrow accounts, and therefore nothing could be paid to Premier; b) loan agreements executed with two lenders required usage of such cash flows for servicing the debt obligations incurred on the project. Therefore, the only debits from the cash flows captured in escrow that were permitted were for paying the lenders towards debt servicing obligations; c) nothing is payable to Premier until the completion of the entire project. 15. The Learned Arbitral Tribunal has carefully examined the manner in which the revenues had been agreed to be dealt with by the parties. Even while escrow arrangements mandated under regulatory requirements administered by RERA have to be complied with, that would by no means excuse the performance of contractual obligations owed by Naman to Premier. Pursuant to the execution of the Supplemental Development Agreement, the parties were co-developers. The regulatory requirement to maintain cash flows in an escrow account would not mean that the inter se contractual obligations between Naman and Premier would, by implication, stand excused. 16. The objective underlying the RERA regulatory requirement of maintaining cash flows in an escrow account is nothing but a safeguard to ensure that revenues from a project are actually utilized for meeting the obligations necessary to implement the project. It is the net sale revenue that is to be shared between Naman and Premier. It can be nobody’s case that the compliance with RERA requirements would mean that there can be no distribution of net revenues to owners of shares in the revenues from a project. All that the law requires is that cash flows generated from the project are not siphoned out without deployment for the necessary expenditure to operate the project. In any case, Naman appears to have kept Premier entirely in the dark about the financial information to be able to explain how honouring the obligation to share net sales revenues was preempted. 17. In my opinion, no fault can be found with the analysis by the Learned Arbitral Tribunal in how it has dealt with the contentions relating to the escrow arrangements mandated by RERA. 17. In my opinion, no fault can be found with the analysis by the Learned Arbitral Tribunal in how it has dealt with the contentions relating to the escrow arrangements mandated by RERA. It is also clear that four out of five towers have already got an OC while the fifth tower is also constructed. Under the Minutes of Meeting held on November 30, 2024 by the Learned Arbitral Tribunal, Premier was required to make a clear disclosure as regards the stage of the development project in its written submissions, but Naman did not provide the same. The Learned Arbitral Tribunal has graciously attributed this to potential oversight on the part of Naman. The impression that one can get from a review of the record is that Premier has been deprived of any earnings so far even while Naman has been pocketing all the sales revenues. In other words, apart from the initial amounts payable at signing of the Development Agreement, Premier has received nothing out of the fruits of the development, in the teeth of Naman having a committed obligation to Premier that 45% of the net sales revenue would be paid to Premier. 18. The Learned Arbitral Tribunal has also found that the agreement with the first lender namely, LIC Housing Finance, explicitly entails devolution of funds from these escrow accounts towards payment of a 45% share to Premier and a 55% share to Naman. Yet, even for the period in which there was debt owed to only this lender, there has been no payment to Premier. Till date, none a farthing has been paid to Premier and this has motivated the Learned Arbitral Tribunal to protect Premier by directing the provision of a bank guarantee or a Fixed Deposit, so that the subject matter of the dispute under arbitration is preserved and protected. 19. Later, another loan was obtained from Swamih Investment Fund-I. Indeed this agreement did not entail a distribution to the co- developers, but this issue is rendered totally moot because all the loans owed to either lender have been fully repaid and the project is entirely debt-free. Indeed, Premier had executed documentation with the lenders to consent to the creation of encumbrances, since Premier was the owner of the land. However, debt servicing was not Premier’s obligation. Indeed, Premier had executed documentation with the lenders to consent to the creation of encumbrances, since Premier was the owner of the land. However, debt servicing was not Premier’s obligation. All debt is repaid in any case, and this excuse is now totally irrelevant for purposes of effecting any adjustment. 20. It was for Naman to manage cash flows to enable servicing of the debt, maintenance of escrows, and yet earn a profit after sharing the net sales revenues with Premier. Servicing of the loans and management of a cash flows are matters of operational detail and that cannot erode the contracted entitlement of Premier to a 45% share in the net sales revenues. 21. The objection of Naman that the entire proceedings are premature and that the obligation to pay a 45% share would arise only when the entire project is fully completed, has also been considered by the Learned Arbitral Tribunal. It is not as if the redevelopment under the Development Agreement is one composite project that starts and ends without any phases. As stated earlier, out of the six towers, even the OC has been received in respect of four completed towers and the OC for the fifth completed tower is expected. Therefore, Naman has been monetizing the redevelopment, and yet Premier has been kept in the dark with no sighting of either financial information or revenues. Since material components of the project are complete, and revenues too have been realized by Naman from the sale of flats comprised in these towers, it would stand to reason that Premier being the co- developer and the owner of the land, should be secured for its entitlement to its 45% share. Therefore, the Learned Arbitral Tribunal is fully justified in securing such rights of Premier, taking into account the fact that it has been paid nothing out of the revenues generated from these towers, and has been given no financial information for so long. 22. Consequently, no fault can be found with the finding that the proceedings are not premature. The reasons for which the contentions about the RERA escrow arrangements and the lender covenants, as pressed into service were rejected are eminently plausible, reasonable and unworthy of intervention. 22. Consequently, no fault can be found with the finding that the proceedings are not premature. The reasons for which the contentions about the RERA escrow arrangements and the lender covenants, as pressed into service were rejected are eminently plausible, reasonable and unworthy of intervention. It is not at all reasonable to conclude that Premier ought to wait until the last unit in the last tower is finally sold, without any insight into the financial information relating to the project or revenue share. 23. In any case, it is not as if the Learned Arbitral Tribunal has asked for any monies to be paid over by Naman to Premier forthwith. All that the Learned Arbitral Tribunal has done is factor in the conduct of Naman so far, to come to a view that securing of the amounts is warranted. Therefore, the intervention by the Learned Arbitral Tribunal cannot be faulted, on the anvil of fairness and equity, bearing in mind the conduct of the parties. CPC Considerations not Necessary: 24. Finally, another line of attack on behalf of Naman has been that protective reliefs ought not to be granted for the asking under Section 17 of the Act, without something more to show a risk to the property involved. The principles underlying Order XXXVIII, Rule 5 of the Code of Civil Procedure, 1908 are sought to be invoked. 25. It is now trite law that in the conduct of arbitration proceedings, the scope of interference by the Arbitral Tribunal is not hamstrung by the specific and strict requirements of Order XXXVIII, Rule 5 of the CPC. Multiple decisions of this Court including Jagdish Ahuja v. Cupino Ltd. 2020 SCC OnLine Bom 849 and Valentine Maritime Ltd. v. Kreuz Subsea (P) Ltd. 2021 SCC OnLine Bom 75 have been noted with approval by the Supreme Court in Essar House (P) Ltd. v. Arcellor Mittal Nippon Steel (India) Ltd. (2022) 20 SCC 178 . Consequently, I do not think it necessary to contribute more length to this judgment by extracting from these judgements only to state what is now a well-established position in law. 26. Evidently, the view taken by the Learned Arbitral Tribunal is an eminently plausible view. One cannot ignore the fact that for the last fifteen years, apart from payment of approximately Rs.18 crores, of which, the cash component is only Rs.10 crores, Premier has received nothing. 26. Evidently, the view taken by the Learned Arbitral Tribunal is an eminently plausible view. One cannot ignore the fact that for the last fifteen years, apart from payment of approximately Rs.18 crores, of which, the cash component is only Rs.10 crores, Premier has received nothing. That apart, the very nature of contentions raised by Naman in these very proceedings, in my opinion, lends credence to the need for protection. The Learned Arbitral Tribunal, in my opinion rightly, has observed that the situation could become irreversible if the project is entirely completed with Premier having to wait until that time to get even a basic insight into the finances, and access to its entitlements. The directions in the Impugned Order are consistent with the scope of intervention under Section 17 of the Act. Conclusion and Directions: 27. For the aforesaid reasons, I see no cause to interfere with the Impugned Order. The Petition filed under Section 37 of the Act, is dismissed. Therefore, any interim applications relating to the Petition also stand dismissed. 28. Considering the efflux of time, and also the modification made by the Learned Arbitral Tribunal to the first order, the size of the bank guarantee, or as the case may be, the fixed deposit shall be enhanced by computing the amounts, applying the same formula as adopted in the Impugned Order, for the period until June 30, 2025. The parties shall provide their working of accounts towards compliance with the aforesaid direction to the Learned Arbitral Tribunal. Naman shall report compliance with these directions within a period of two weeks from the upload of this judgement on this Court’s website. Costs: 29. Considering that this is a commercial dispute, costs must follow the event. I estimate costs at a reasonable and token number (bearing in mind that both parties engaged Learned Senior Counsel for this round of litigation) at a sum of Rs. 5 lakhs, which shall be paid by Naman to Premier, within a period of two weeks from the date of upload of this order. 30. All actions required to be taken pursuant to this order shall be taken upon receipt of a downloaded copy as available on this Court’s website.