Bombay High Court

DEEPAK HARIBHAU TANDALEversusMUTHALIAYA LAND DEVELOPERS

Decided: 28 September 2026
Disposal: Disposed Off

Holding

Clause 26 is a valid arbitration agreement and the petition under Section 11 is maintainable, warranting the appointment of a sole arbitrator.

Summary

The petitioners, owners of a parcel of land, invoked an arbitration clause (clause 26) in a 2011 development agreement to resolve disputes with various developers and family members who were either parties or successors to parties to the agreement. The respondents, including non‑signatories, challenged the applicability of the arbitration clause and argued that the clause was not a binding arbitration agreement. The Court examined the wording of clause 26 and held that it demonstrated a clear intention to refer any dispute arising under the agreement to arbitration, distinguishing it from clauses that merely allow parties to decide to arbitrate. The Court also rejected the contention that non‑signatory respondents could not be compelled to arbitrate, noting that the grievance fell within the scope of Section 11 of the Arbitration and Conciliation Act. Consequently, the Court appointed a sole arbitrator to adjudicate the disputes and disposed of the arbitration petition.

Issues considered

Whether clause 26 of the 2011 development agreement constitutes a valid arbitration agreement under the Arbitration and Conciliation Act.
Whether respondents who are not signatories to the agreement can be bound by the arbitration clause.
Whether the petition under Section 11 of the Arbitration and Conciliation Act is maintainable.

Legislation cited

Arbitration and Conciliation Act, 1996 — s. 11(8), 12(1)

Subjects

Arbitration
Arbitration clause
Non‑signatory
Section 11
Arbitration agreement
High Court of Bombay
Appointment of arbitrator

Judgment

LSP 1 9 arp 153.26.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

Arbitration Petition No. 153 of 2026

Deepak Haribhau Tandale and others … Petitioners
V/s.
Digitally
signed by
Muthaliaya Land Developers and others … Respondents.
LATA
LATA SUNIL
SUNIL PANJWANI
PANJWANI Date:
2026.10.01
13:35:52
+0530 Mr.Aditya S. Lele a/w. Ms. Advocate for the Petitioners.
Swamini Thitte
Mr.Sandeep Mishra Advocate for the Respondent
No.1
Mr. Vivek Rane Advocate for the Respondent
No.2
Mr. sagar Joshi Advocate for Respondent Nos.3
and 4.

CORAM : S.M. MODAK, J

DATE : 28th September 2026.

P.C. :

1. Heard learned Advocate for the Petitioners and learned
Advocates for Respondent No.1– original Developer, for Respondent
No.2- subsequent Developer and for Respondent Nos.3 and 4 who
are the family members from the family of the Petitioners.
Respondent No.5 is recent developer. Though he is served by way of
private notice he has not appeared. The service affidavit is taken on
record.
LSP 2 9 arp 153.26.doc

2. There is an agreement titled as 'भुवि कास करार’ executed on 17th
October 2011 on Page No.34. There is an arbitration clause on Page
No.46. For ready reference it is reproduced below:

"तसेच सदरहू लि हून देणार लि हून घेणार यांमध्ये सदरहू जमीन
विमळकती री वि कास कायासंबध
ं ी अथ ा मोबदल्यासंबंधी काही
ाद विनमाण झाल्यास सदरहू लि हून देणार लि हून घेणार हे सदर
ाद हा ादा मार्फत सोड ती . तसेच सदर ादाची विनयुक्ती
सदर लि हून देणार लि हून घेणार हे संमतीने करती .”

3. This agreement was executed in between the present
Petitioners as some of the owners of the land and pre-decessor in title
of Respondent Nos.3 and 4 have also signed it whereas Respondent
No.1 has signed it as a Developer. Admittedly Respondent Nos.2
and 5 are not parties. They have raised this objection for referring
the dispute to an Arbitrator.

4. Vide notice dated 29th January 2026 (Page-267), the
Petitioners have taken recourse to the arbitration clause No.26. That
is how the present petition is filed.

5. It is true in the notice dated 6th February 2024 issued by the
Petitioners to the Respondent No.1, the Petitioners have referred
about the intention of the Respondent No.1 to sale the land to one
M/s. Bhakti Developers by using power of attorney. They are
present Respondent No.2. This issue is raised on behalf of
Respondent No.2. He also relied upon observations in case of
LSP 3 9 arp 153.26.doc

Nagareeka Indcon Products P. Ltd. v/s. Cargocare Logistics (India) P.
Ltd.1 and more particularly Para No.13. The observations in earlier
judgment of Jagdish Chander vs. Ramesh Chander2 are reproduced
which clause can be said to be an arbitration clause is interpreted
therein. A clause which says that “ if the parties so decide dispute shall
be referred to Arbitrator” or “if they so agree” cannot be considered
as an arbitration agreement.

6. On this background, learned Advocate for Respondent No.1
invited my attention to the wordings in clause No.26. I have read
clause No.26. It cannot be said that those observations are applicable
in the facts involved in this petition. There are two aspects. “If the
parties so decide or if they so agree it can be referred to arbitration” is
a one clause. This is not case herein.

7. In this case Clause No.26 mentions if the dispute arose, it will
be referred to arbitration. There is a clear indication of intention of
the parties to adjudicate it through an Arbitrator. If the clause says
“if the dispute will arose” it cannot be said that the parties have
postponed their desire to get it adjudicated through an Arbitrator.
Ultimately, such clause is executed at the time of agreement and it
comes into picture when the dispute arose. Said contention is not
accepted. There is concluded consent of parties to the agreement to
refer it to arbitration.

1 (2026) SCC OnLine SC 630
2 (2007) 5 SCC 719
LSP 4 9 arp 153.26.doc

8. There is a reply filed by Respondent No.2 contending that
they are not the party to original agreement. Even Respondent Nos.3
and 4 have raised a similar plea. They are the successors of one Jyoti
Bhojane who is a party to the Development Agreement.

9. It is true there are several disputes and allegations and counter
allegations by the parties against each other. Those contentions
cannot be decided in a petition under Section 11 of the Arbitration
and Conciliation Act. The primary requirement for appointment of
an Arbitrator are made out. The grievance as raised by Respondent
Nos.1 to 4 against the Petitioners including non-signatory to
agreement dated 17th October 2011 can be raised before learned
Arbitrator. So case is made out for appointment of an Arbitrator.
Hence, the order:
ORDER

A) Mr. Prashant G. Kadam, Advocate is appointed as the
Sole Arbitrator to adjudicate upon the disputes and
differences between the parties arising out and in
connection with the the matter referred above;
Office address :- 101, Durgeshwari Tower, Near Jay
Anand Hospital, Opp. Dagadi School,
Charai, Thane.
Email id : - [email protected]
Contact No. - 9820726666

B) A copy of this Order will be communicated to the
LSP 5 9 arp 153.26.doc

learned sole Arbitrator by the Advocate for the Petitioner
within a period of one week from the date of uploading
of this order. The petitioner shall provide the contact and
communication particulars of the parties to the Arbitral
Tribunal along with a copy of this Order;

C) The learned sole Arbitrator is requested to forward the
statutory Statement of Disclosure under Section 11(8)
read with Section 12(1) of the Act to the parties within a
period of two weeks from receipt of a copy of this Order;

D) The parties shall appear before the learned sole
Arbitrator on such date and at such place as indicated, to
obtain appropriate directions with regard to conduct of
the arbitration including fixing a schedule for pleadings,
examination of witnesses, if any, schedule of hearings etc.
At such meeting, the parties shall provide a valid and
functional email address along with mobile and landline
numbers of the respective Advocates of the parties to the
Arbitral Tribunal. Communications to such email
addresses shall constitute valid service of correspondence
in connection with the arbitration;

E) All arbitral costs and fees of the Arbitral Tribunal shall be
borne by the parties equally subject to final outcome and
as per the Schedule.
LSP 6 9 arp 153.26.doc

F) The place of sitting will be at Thane.

10. Arbitration Petition is disposed of.

11. Petitioner to serve copy of this order to Respondent No.5.

(S.M. MODAK, J.)

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