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Friday, 25 January 2013 12:00

Eviction of Société Futura refused to BPML

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The Business Park of Mauritius Ltd (PBML) has recently failed in its application to the Judge in Chambers to recover the State Land of 6 acres leased to Société Futura at Ebène, Moka.
In a ruling delivered last week Justice Benjamin Marie Joseph has refused to accede to the application for a Writ Habere Facias Possessionem entered by the applicant for an eviction order of the respondent and set aside the application with costs. 

It is the contention of the applicant that by virtue of an agreement dated 13 October 2003, BPML leased to Société Futura three contiguous portions of land, lots 15, 16 and 17 of a larger portion of land, of a total extent of 48,563  square metres (12 acres) situated at Ebène for a period of 30 years. The lease was for the purpose of setting up an ICT Business project and for other related operations in terms of clause 8.1 of the agreement, the respondent as the lessee, undertook to complete the construction of the project proposal within 24 months of the date of the signing of the agreement. The agreement concerns the construction of a 10-floor tower and the creation of a business park over the 12 acres of land leased.

It is the case of the application that the respondent company has failed to fulfill its obligations as stipulated under clause 8.1 of the agreement in that at the time of the application, it has built only one tower out of eight towers, which is still not operational and had not yet developed 75% of the whole land leased. The respondent had been notified for this shortcoming but to no avail. The applicant warned the respondent that they would “de plein droit” take back 6 out of the 12 acres leased and designated as lot 15 A.

The respondent contested the application for an eviction order on the remaining 6 acres recuperated by BPML for the following reasons: (i) The applicant cannot proceed to the eviction of the respondent and unilaterally cancel the lease without the dispute having been determined by arbitration as provided under clause 11.3 of the agreement. (ii) The remedy sought cannot be granted as the applicant has failed to disclose the facts alluded to: and (iii) there is a serious dispute about the validity of the decision of the applicant to cancel the lease agreement unilaterally as such dispute ought to have been referred to arbitration.

In his ruling the Judge ruled in favour of the respondent against the applicant for the following reasons: “The reasons put forward by the respondent to say the cancellation of the lease indeed constitutes a serious and bona fide defence to the claim of the applicant. And, the issues in controversy cannot be properly thrashed out and decided upon by way of affidavit evidence.”
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