DHARMESH CHANDRAKANT MIRANIversusSATGURU KNS CONSTRUCTION PVT LTD

                                                                arbap114-2026 & connected-J.doc


                   AGK
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              ORDINARY ORIGINAL CIVIL JURISDICTION

                             ARBITRATION APPLICATION NO.114 OF 2026
                                             WITH
                              ARBITRATION PETITION NO.131 OF 2026

ATUL
                   Dharmesh Chandrakant Mirani                       Applicant/
GANESH                                                             … Petitioner
KULKARNI
Digitally signed
by ATUL
                                        Vs.
GANESH
KULKARNI
Date: 2026.09.29
11:16:14 +0530
                    1. Satguru KNS Construction Pvt. Ltd.
                    2. Satguru Supreme Cooperative
                       Housing Society Limited                     … Respondents

                                             WITH
                             ARBITRATION APPLICATION NO.113 OF 2026
                                             WITH
                              ARBITRATION PETITION NO.115 OF 2026

                   Dharmesh Chandrakant Mirani                       Applicant/
                                                                   … Petitioner
                                        Vs.
                    1. Satguru KNS Construction Pvt. Ltd.
                    2. Satguru Drishti Cooperative
                       Housing Society Limited                     … Respondents



                   Mr. J.S. Kini with Mr. Aum Kini, and Mr. Parth Kini i/by
                   Ms. Sapna Krishnappa for the Applicant/Petitioner.
                   Mr. Bhaavin Gada with Mr. Deepak Shukla, Mr. Praveen
                   Maurya, and Ms. Shweta Thakur i/by BNS Legal for
                   Respondent No.1 in all the matters.
                   Mr. Virendra Pethe for Respondent             No.2      in
                   ARBAP/114/2026 & ARBP/131/2026.




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                   CORAM                        : AMIT BORKAR, J.

                   RESERVED ON                  : SEPTEMBER 23, 2026.

                   PRONOUNCED ON                : SEPTEMBER 29, 2026

JUDGMENT:

1.    Since the facts and the question of law involved in both these
Applications are common, both the Applications are being decided
by this common Judgment. For convenience, the facts in
Arbitration Application No.114 of 2026 are being referred to.

2.    By these Applications, the Applicant is seeking appointment
of an Arbitrator for deciding the disputes between the parties
under Section 11(4) of the Arbitration and Conciliation Act, 1996.

3.    The   Applicant    is   the       joint   owner     and      authorised
representative of T.J. Mirani Estate. The said Estate is the owner of
the plot of land consisting of certain pieces or parcels of land
situated at Mulund, abutting Ganesh Gawade Road, Dr. Ambedkar
Road and Valji Ladha Road, bearing Plot Nos.143, 144, 145, 150,
151 and 152 of Survey No.1000, corresponding to C.T.S. Nos.1314
and 1313/1 to 122, admeasuring about 11,677.71 sq. yards,
equivalent to about 9,755.9 sq. metres, after deducting 268.94 sq.
metres of setback area from the total area of 10,124.84 sq. metres,
together with the buildings and structures standing thereon. This
property is hereinafter referred to as the “said property”.
Respondent No.1 is the builder/developer appointed by late
Chandrakant T. Mirani, who was the father and predecessor in title
of the Applicant. Respondent No.2 is the society formed by the flat



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purchasers who are occupying the building constructed on the said
property. According to the Applicant, the facts which have resulted
in filing the present Applications are briefly as follows. Under the
Development Agreement dated 4 October 2002, late Chandrakant
T. Mirani granted development rights in favour of Respondent No.1
for the consideration and on the terms and conditions stated in the
said Agreement.

4.    The Applicant states that although the redevelopment of the
said property was completed long ago, Respondent Nos.1 and 2
have not performed their obligations under the Development
Agreement. According to the Applicant, the Respondents were
required to execute the Lease Deed and pay the lease rent as
provided in the Agreement. Since these obligations were not
performed, the Applicant issued a notice dated 1 August 2022
calling upon the Respondents to comply with the agreed terms and
conditions by executing the Lease Deed and by paying the
outstanding lease rent. The Respondents received the said notice.
However, they neither accepted the appointment of an Arbitrator
nor suggested any other person for appointment. They did not
reply to the said notice. In these circumstances, according to the
Applicant, there was no other effective remedy available except to
approach this Court by filing the present Applications.

5.    Mr. Kini, learned Advocate appearing for the Applicant,
submits that the existence of the arbitration agreement between
the parties is not disputed. According to him, the objections raised
by the Respondents regarding non-joinder of other legal heirs,
limitation and other related issues are matters which can be



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considered and decided by the Arbitral Tribunal. He submits that
such objections fall within the scope of Section 16 of the
Arbitration and Conciliation Act, 1996 and, therefore, need not be
decided by this Court at the stage of considering the present
Applications.

6.   Mr. Gada, learned Advocate appearing for Respondent No.1,
submits that the Applicant has no locus to file the present
Application. According to him, the Applicant is not the executor of
the estate of late Mr. Chandrakant Mirani. There has been no
change or substitution of the executor of the estate of late Mr.
Chandrakant Mirani. It is the executor who is required to execute
the Lease Deed in favour of Society Nos.1 to 4. The Applicant
alone, therefore, cannot execute any Lease Deed in favour of
Society Nos.1 to 4. In the absence of such authority, according to
Mr. Gada, the Applicant cannot maintain the present Arbitration
Application. He submits that the Application deserves to be
dismissed on this ground.

7.   Mr. Gada submits that the Applicant has not joined the other
heirs and legal representatives of the estate of late Mr.
Chandrakant Mirani as parties. According to him, the other heirs
and legal representatives are necessary and/or proper parties to
the present proceedings. The Application is bad for non-joinder of
necessary and proper parties. It is submitted that the LLP has
constructed the building of Society No.4. The agreements with the
purchasers of the tenements in Respondent No.2, Society No.4,
have been executed by the LLP. According to Mr. Gada, the LLP is a
necessary and/or proper party to the present Application. In its



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absence, the Application is liable to be dismissed for non-joinder of
a necessary party.

8.       Mr. Gada submits that Mr. Jayesh Mirani had filed a
complaint against the directors of Respondent No.1 in May 2019
on the allegations stated in that complaint. In the said complaint,
Mr. Jayesh Mirani had alleged that the consideration contemplated
under the Development Agreement and the Supplemental
Agreement had not been paid or complied with by Respondent
No.1 and its directors. Criminal proceedings were thereafter
initiated on the basis of the said complaint. According to Mr. Gada,
the cause of action relating to the Development Agreement and the
Supplemental Agreement had, therefore, arisen as far back as in
2019. The Applicant had supported the said complaint by giving a
statement on 20 July 2019 and a statement on 13 December 2024.
It is submitted that there cannot be a cause of action for the
criminal complaint and for the alleged civil dispute. The invocation
of arbitration in the year 2025 is, therefore, barred by limitation.
The Applicant is consequently not entitled to any relief in the
present Applications.

9.       Mr. Gada submits that Respondent No.2 was not a party to
either     the   Development   Agreement    or   the     Supplemental
Agreement. He submits that the Applicant was not a party to the
Development Agreement and the Supplemental Agreement.
According to him, there is no arbitration agreement between the
Applicant and Respondent No.2. Therefore, there is no question of
the Applicant maintaining any proceedings against Respondent
No.2 either under Section 11 or under Section 9 of the Arbitration



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and Conciliation Act, 1996.

10.   Mr. Gada submits that the present Arbitration Application
appears to have been filed after several years only because the
Development Agreement was executed in favour of Shreeji
Buildcon in the year 2025. According to him, there is an
impediment or restriction imposed by the Municipal Commissioner
and/or the authorities of the Municipal Corporation of Greater
Mumbai regarding sanction of the plan submitted by Shreeji
Buildcon. The present Application, therefore, according to him, has
been filed only in view of the said circumstances.

11.   Mr. Gada submits that the Lease Deed forwarded by the
Applicant, claiming to be the Administrator of the estate of the
deceased, is not in accordance with the terms and conditions of the
Development Agreement and/or the Supplemental Agreement.
According to him, the proposed Lease Deed is contrary to and
inconsistent with the terms of those Agreements. He submits that
the question regarding execution of the Conveyance and the area
to which Society Nos.1 to 4 may be entitled can be decided by the
competent authority in accordance with law and in terms of the
Notification dated 22 June 2018. According to him, for deciding
the entitlement of Society Nos.1 to 4, all the societies are required
to be before the competent authority and must be given an
opportunity of being heard. Such an issue, he submits, cannot be
decided by considering each society separately and without
hearing the other societies.




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12.   Mr. Gada submits that the rights, title and entitlement of
each society in respect of its portion of the property, as well as the
rights of the estate of the deceased, are required to be determined
in the presence of all concerned parties. According to him, these
rights are connected with and dependent upon each other. They
cannot properly be decided in an arbitration between one society
and the Applicant alone. He submits that the present dispute has
an effect on the rights of persons who are not parties to the
arbitration and has an erga omnes effect. For this reason,
according to him, the dispute is not capable of being referred to
arbitration. The Arbitration Application deserves to be dismissed.

13.   In support of his submissions, Mr. Gada relied upon the
judgment of the Supreme Court in Vidya Drolia & Others vs. Durga
Trading Corporation, (2021) 2 SCC 1. He placed reliance
particularly upon paragraph 76.

14.   Mr. Pethe, learned Advocate appearing for Respondent No.2,
submits that the limitation for a claim seeking specific performance
of an agreement to execute a lease or conveyance, or for
compensation for breach of such an agreement, is three years from
the date fixed for performance. Alternatively, according to him, the
period is three years from the date when the right to sue first
accrues. On this basis, he submits that the limitation period for the
claim in the present case had expired, at the latest, in or about
February 2019. The Applicant's alleged letter of demand is dated 1
August 2022, which was issued more than six years after the cause
of action had arisen. The notice invoking arbitration is dated 4
November 2025, which was issued more than nine years after the



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alleged cause of action and more than three years after the alleged
demand of August 2022.

15.   Mr. Pethe submits that the Supreme Court has held that
while considering an application under Section 11 of the Act, the
Court hearing the reference application is entitled and, in
appropriate cases, required to examine whether the claims sought
to be referred to arbitration are ex facie and clearly barred by
limitation. According to him, where the claim is a “dead claim”,
the Court can refuse to make a reference so that the arbitral
proceedings, as well as the time and expenses of the parties and
the Arbitral Tribunal, are not wasted on a claim which cannot
succeed in law. Respondent No.2 submits that the claim sought to
be raised against it is such a dead claim and, therefore, this Court
ought not to refer the dispute to arbitration.

REASONS AND FINDINGS:

16.   I have considered the submissions made by Mr. Kini for the
Applicant, Mr. Gada for Respondent No.1 and Mr. Pethe for
Respondent No.2. At this stage, this Court is not required to decide
whether each and every claim made by the Applicant will succeed.
The first thing which is required to be seen is whether, prima facie,
there is an arbitration agreement covering the dispute which the
Applicant seeks to refer to arbitration. Once such agreement is
found, the other disputed questions are required to be considered
keeping in view the limited jurisdiction of this Court under Section
11 of the Act.




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17.   The legal position on this aspect has been explained by the
Supreme Court. In A.P. Power Generation Corpn. Ltd. v. Tecpro
Systems Ltd., (2026) 3 SCC 491, the Supreme Court has made a
distinction between the limited enquiry which the Court is
required to make at the Section 11 stage and the detailed enquiry
which can be made by the Arbitral Tribunal. The Supreme Court
has stated that the legislature has “consciously confined the
domain of judicial scrutiny to the mere ‘existence of an arbitration
agreement’”. The Supreme Court has stated that the referral Court
is required to make only a “prima facie determination of the
existence of an arbitration agreement and no further”.

18.   The same position was explained by the Constitution Bench
in Interplay Between Arbitration Agreements under the Arbitration
Act, 1996 and the Indian Stamp Act, 1899 , In re (2024) 6 SCC 1.
The Court explained that the word “examination” used in Section
11(6-A) requires the Court to make only a limited prima facie
examination. It does not mean that the Court should conduct a
mini-trial regarding disputed facts before referring the parties to
arbitration. The later decision in SBI General Insurance Co. Ltd. v.
Krish Spg., (2024) 12 SCC 1 has made it clear that where a
question requires detailed evidence and examination of facts, such
question should be left for consideration by the Arbitral Tribunal.

19.   In view of this legal position, there is substance in the
submission of Mr. Kini to the extent that the objections regarding
the authority of the Applicant, joining of the other heirs, rights of
the societies and limitation of the substantive claims cannot be
finally decided in these Applications merely because such



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objections have been raised. At this stage, the Court has first to see
whether the arbitration agreement exists and whether the Section
11 Application has been filed within the prescribed period of
limitation.

20.   In the present case, Clause 33 of the Development
Agreement is a written arbitration clause. It provides that disputes
and differences arising out of the Development Agreement,
including disputes relating to interpretation of its terms and
conditions, shall be referred to an Arbitral Tribunal consisting of
three Arbitrators. The existence of this clause is not disputed by
Respondent No.1. The main objection raised by Respondent No.1
is that the Applicant cannot invoke this clause because, according
to Respondent No.1, the Applicant is not the executor of the estate
of late Mr. Chandrakant Mirani. At this stage, I am unable to
accept this objection as a ground for refusing the reference. It may
be necessary for the Applicant to ultimately establish his right to
invoke and enforce the arbitration agreement. It may be necessary
to decide whether the Applicant is an executor, administrator, legal
representative, successor or otherwise entitled to represent the
estate. These questions may become important while deciding the
actual claims. However, Clause 33 refers to disputes between the
parties and “their respective heirs and executors”. The Applicant
claims his right through the estate of late Mr. Chandrakant Mirani.
Therefore, there is sufficient prima facie basis for considering the
arbitration agreement. Whether the Applicant has the final
authority to execute the Lease Deed, whether such authority
belongs only to the executor, whether there has been any valid



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substitution of the executor and whether the Applicant can enforce
all rights arising from the Development Agreement are questions
which may require examination of the succession documents, title
documents and the manner in which the estate has been dealt
with. Other evidence may be required. Such detailed enquiry
cannot properly be undertaken in the present Applications as if this
Court is finally deciding the rights of the parties.

21.     In this regard, the observations of the Supreme Court in A.P.
Power Generation Corpn. Ltd. are relevant. The Supreme Court
held:

        “Beyond the prima facie enquiry, it should be the discipline
        of the referral court to refrain from undertaking a detailed
        enquiry on basis of evidence to arrive at a finding of fact in
        the nature of a ‘proof’.”
22.     The same judgment has held that under Section 16, the
Arbitral Tribunal has the power to decide its own jurisdiction,
including questions concerning the existence and validity of the
arbitration agreement. Therefore, the objection of Respondent
No.1 that the Applicant is not the executor cannot be accepted as a
reason to hold that there is no prima facie arbitration agreement.
This finding is only for deciding the present Section 11
Applications. I am not recording any final finding that the
Applicant has established his right, title or authority to act for the
entire estate. If this question is raised before the Arbitral Tribunal,
the Tribunal will consider it on the basis of the documents and
other material produced before it.




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23.     The objection regarding non-joinder of the other heirs and
legal representatives cannot be accepted as a ground for refusing
the reference. There may be cases where, in absence of a necessary
party, the dispute cannot be decided. But merely stating that other
heirs have not been joined does not by mean that there is no
arbitration agreement. Whether any particular heir is a necessary
party, whether the Applicant can maintain the claim without
joining the other heirs and whether final relief can be granted
without affecting the rights of persons who are not parties are
matters which will depend upon the evidence and upon the nature
of the relief ultimately claimed.

24.     The same reasoning applies to the objection concerning the
LLP. Respondent No.1 submits that the LLP constructed the
building of Society No.4 and entered into agreements with the
purchasers. This fact may have some relevance while deciding the
final rights and liabilities of the parties. However, merely because
the LLP was involved in construction and entered into agreements
with the purchasers, it cannot be held at the Section 11 stage that
the arbitration clause contained in the Development Agreement
has ceased to operate. It cannot be held on this ground alone that
there is no arbitral dispute between the Applicant and Respondent
No.1.

25.     Another objection raised by Respondent No.1 is that the
Applicant had supported the complaint filed by Mr. Jayesh Mirani
in May 2019. The Applicant had given a statement on 20 July
2019 and another statement on 13 December 2024. According to
Respondent No.1, the cause of action must be treated as having



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arisen in 2019. It is submitted that the arbitration invoked in 2025
is barred by limitation.

26.   This submission requires consideration. There is a difference
between the limitation applicable to the substantive claim and the
limitation applicable to the Section 11 Application. Merely because
a grievance was raised in an earlier proceeding, it does not follow
that this Court can finally decide in a Section 11 proceeding as to
when limitation for every claim started. The nature of the earlier
complaint, what exactly was alleged in that complaint, what relief
was sought, which obligations are now sought to be enforced and
whether any subsequent event gave rise to a fresh or continuing
dispute are matters which may require examination of facts and
evidence.

27.   The Supreme Court considered this issue in Aslam Ismail
Khan Deshmukh v. ASAP Fluids (P) Ltd.(2025) 1 SCC 502 After
considering Vidya Drolia, Arif Azim and the later Constitution
Bench decision in Interplay, the Supreme Court explained that the
referral Court should not undertake an intricate enquiry based on
evidence for deciding whether the substantive claims are time-
barred. The Supreme Court stated:

      “136. Thus, we clarify that while determining the issue of
      limitation in exercise of the powers under Section 11(6) of
      the 1996 Act, the referral Court should limit its enquiry to
      examining whether Section 11(6) application has been filed
      within the period of limitation of three years or not. The date
      of commencement of limitation period for this purpose shall
      have to be construed as per the decision in Arif Azim... As a
      natural corollary, it is clarified that the referral Courts, at the



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      stage of deciding an application for appointment of
      arbitrator, must not conduct an intricate evidentiary enquiry
      into the question whether the claims raised by the applicant
      are time-barred and should leave that question for
      determination by the arbitrator.”
28.   In the present case, the Applicant relies upon the notice
dated 1 August 2022 and thereafter upon the notice invoking
arbitration dated 4 November 2025. The present Applications have
been filed in the year 2026. On the material before the Court, the
Section 11 Applications cannot be said to have been filed after
expiry of three years from the date on which the right to approach
the Court under Section 11 accrued following the invocation of
arbitration and the failure or refusal of the Respondents to act
upon the notice. The submission of Respondent No.2 that the
original cause of action arose much earlier does not alter this
position. Whether the substantive claim is barred by limitation is a
question. That question can be raised before the Arbitral Tribunal.
The   Tribunal   can   examine    the   Development        Agreement,
correspondence between the parties, the alleged non-payment of
lease rent, the notice dated 1 August 2022, the notice invoking
arbitration dated 4 November 2025 and the earlier complaint and
statements relied upon by the Respondents.

29.   It is true that the earlier decision in Arif Azim permitted a
somewhat wider enquiry where the claim was found to be ex facie
dead. However, this aspect was reconsidered in SBI General
Insurance Co. Ltd. v. Krish Spg. The Supreme Court clarified that
the referral Court should confine its enquiry regarding limitation
to whether the Section 11 Application is within limitation. The



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Court should not conduct an intricate evidentiary enquiry for
deciding whether the substantive claim is time-barred.

30.   Therefore, the objection based upon the criminal complaint
of 2019 does not persuade me to refuse the reference. A criminal
complaint and a claim may arise from some common facts. But
that alone does not mean that both proceedings have to be treated
as the same proceeding for deciding limitation under Section 11.
At this stage, what is required to be seen is whether an arbitration
agreement exists and whether the Section 11 Application is within
limitation. Whether the Applicant's claims are stale, extinguished
or otherwise barred by limitation is left open for consideration by
the Arbitral Tribunal.

31.   I now turn to the objection relating to Respondent No.2.
There is a material difference between Respondent No.1 and
Respondent No.2. Respondent No.1 is the developer with whom
the Development Agreement was entered into. Respondent No.2 is,
according to the record, the co-operative society formed by the flat
purchasers. Respondent No.2 is not shown to be a signatory to the
Development Agreement or to the Supplemental Agreement. It is
correct that Clause 8 of the Development Agreement contemplated
execution of Lease Deeds in favour of the Developers or their
nominees, including a co-operative society or societies. But merely
because a society may be a nominee or beneficiary of a lease, it
cannot be said that the society became a party to the arbitration
agreement contained in Clause 33. There must be some prima
facie material showing that the non-signatory society was in fact a
“veritable party” to the arbitration agreement.



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32.   The Supreme Court in Cox & Kings Ltd. v. SAP India (P) Ltd. ,
as reproduced in A.P. Power Generation Corpn. Ltd., has explained
this position in paragraph 169. It held:

      “169. In case of joinder of non-signatory parties to an
      arbitration agreement, the following two scenarios will
      prominently emerge: first, where a signatory party to an
      arbitration agreement seeks joinder of a non-signatory party
      to the arbitration agreement; and second, where a non-
      signatory party seeks invocation of an arbitration agreement.
      In both the scenarios, the referral court will be required to
      prima facie rule on the existence of the arbitration
      agreement and whether the non-signatory is a veritable party
      to the arbitration agreement. In view of the complexity of
      such a determination, the referral court should leave it for
      the Arbitral Tribunal to decide whether the non-signatory
      party is indeed a party to the arbitration agreement on the
      basis of the factual evidence and application of legal
      doctrine.”
33.   The Supreme Court stated:

      “170.12. At the referral stage, the referral court should leave
      it for the Arbitral Tribunal to decide whether the non-
      signatory is bound by the arbitration agreement.”
34.   In the present case there is no sufficient prima facie material
before the Court to show that Respondent No.2 became a party to
Clause 33. The fact that Respondent No.2 consists of flat
purchasers, occupies the building or that the Development
Agreement contemplated execution of a lease in favour of a co-
operative society does not, by, establish consent to arbitration. The
arbitration agreement cannot be extended to Respondent No.2
merely because the ultimate performance of the Development




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Agreement may give some benefit to the society.

35.   I find substance in the objection of Respondent No.2 to this
limited extent. A reference under Section 11 cannot be made
against a person when there is not even prima facie material to
show that such person is a party to the arbitration agreement. The
fact that the Arbitral Tribunal has power under Section 16 to
decide questions of jurisdiction does not mean that an arbitration
agreement can be presumed against a person who is otherwise a
stranger to it. This does not mean that the disputes between the
Applicant and Respondent No.1 become non-arbitrable merely
because the property is occupied by a society or because the final
relief may have some connection with the rights of the flat
purchasers. The Applicant's claim arises from the Development
Agreement. It concerns the alleged obligations relating to
execution of the Lease Deed and payment of lease rent. On the
material before the Court, this is a dispute connected with the
Development Agreement. Merely for that reason, it does not
become a dispute in rem.

36.   Mr. Gada has relied upon Vidya Drolia, particularly
paragraph 76. I have considered this submission. The Supreme
Court has stated that a dispute may be non-arbitrable where the
subject matter “affects third party rights; have erga omnes effect;
require centralized adjudication, and mutual adjudication would
not be appropriate and enforceable”. The Supreme Court has
explained that these tests are not watertight compartments and
have to be considered together. But merely because an arbitral
award may have some practical effect upon persons who are not



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parties to the arbitration, it cannot be concluded that the dispute
requires centralized adjudication. The actual nature of the dispute
brought for arbitration has to be seen. In the present case, the
immediate dispute arises from the Development Agreement dated
4 October 2002 and the obligations said to arise under that
Agreement. The Applicant is not asking this Court in these
Applications to finally decide the title of every flat purchaser or to
determine the independent proprietary rights of all the societies.
The question is whether the dispute between the Applicant,
claiming through the estate of late Chandrakant Mirani, and
Respondent No.1, the developer, should be referred to the
arbitration mechanism agreed under the Development Agreement.

37.   The objection that Society Nos.1 to 4 should all be heard
together may have some relevance while deciding the nature and
extent of the final relief. But that does not mean that the Court
must decide all those questions before constituting the Arbitral
Tribunal. If any particular relief requires adjudication of the rights
of persons who are not parties to the arbitration agreement, the
Arbitral Tribunal will have to consider the limits of its jurisdiction
under Section 16 and whether such relief can be granted. This is
different from holding that no part of the dispute between the
Applicant and Respondent No.1 can be referred to arbitration.

38.   The submission that the Lease Deed sent by the Applicant is
not in accordance with the Development Agreement or the
Supplemental Agreement is a matter concerning the merits of the
dispute. Whether the proposed Lease Deed correctly represents the
agreement between the parties, whether there has been any



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change in the area of the land, whether the lease rent has been
correctly calculated and whether the proposed terms are according
to the original Agreement are matters requiring interpretation of
the documents. These disputes arise from the Agreement and fall
within the language of Clause 33.

39.   Similarly, the submission that the Competent Authority has
jurisdiction under the Notification dated 22 June 2018 regarding
conveyance or deemed conveyance cannot, on the material before
the Court, result in dismissal of the Applications. A statutory
remedy relating to one part of the property rights does not by
remove a arbitration agreement concerning disputes arising from
the Development Agreement. If any particular relief is claimed
which is exclusively within the jurisdiction of a statutory authority,
that question can be considered by the Arbitral Tribunal when such
claim is placed before it.

40.   I do not find that the submission regarding Shreeji Buildcon
and   the    alleged   restriction        imposed    by     the     Municipal
Commissioner or the Municipal Corporation of Greater Mumbai
changes the issue before this Court. Whether the present
proceedings were filed because of the Development Agreement
allegedly executed in favour of Shreeji Buildcon in 2025, or
because there was difficulty in obtaining sanction of the plan,
relates to the surrounding circumstances. It does not by remove or
cancel the arbitration clause contained in Clause 33.

41.   At the Section 11 stage, the Court cannot examine every
disputed question as if it were finally deciding a civil suit. The




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Supreme Court has repeatedly stated that the enquiry at this stage
is limited. In Aslam Ismail Khan Deshmukh, after considering the
position in Interplay and Krish Spg., the Supreme Court made it
clear that the referral Court should not conduct an intricate
evidentiary enquiry into whether the substantive claim is time-
barred. The Court took note of the fact that entering into the
jurisdiction of the Arbitral Tribunal at this stage may leave the
claimant without an effective remedy for adjudication of the claim.

42.   In the present case, the existence of the written Development
Agreement and Clause 33 is clear. The Applicant claims through
the estate of the original party. Respondent No.1 was the developer
under the Development Agreement. The disputes raised by the
Applicant arise from the said Agreement. The authority of the
Applicant to represent the estate is a disputed question which may
require deeper examination. The question of limitation of the
substantive claims depends upon the factual history. Similarly, the
objections regarding the Lease Deed and the respective rights of
the societies concern the merits and the extent of relief.

43.   I hold that, between the Applicant and Respondent No.1,
there is sufficient prima facie material to hold that an arbitration
agreement exists and that the disputes raised by the Applicant
arise from that agreement. The objections of Respondent No.1
regarding the Applicant's locus, non-joinder, limitation, the earlier
criminal complaint and the correctness of the proposed Lease Deed
do not, on the material before the Court, provide sufficient ground
to refuse the reference. At the same time, I am not satisfied that
Respondent No.2 can be compelled to participate in arbitration



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merely because it is a society of flat purchasers or because the
Development Agreement contemplated execution of a Lease Deed
in favour of a co-operative society. There is no sufficient prima
facie material to show that Respondent No.2 accepted or became
bound by the arbitration agreement contained in Clause 33.
Therefore, the reference against Respondent No.2 cannot be made
on the material available before the Court.

44.   All other objections raised by the parties are left open to be
raised before the Arbitral Tribunal, subject to law. These include
the authority of the Applicant to represent the estate, the effect of
the rights of the other heirs and legal representatives, the effect of
the earlier complaint and statements, the limitation of the
substantive claims, the interpretation of Clause 8, the correctness
of the proposed Lease Deed, the claim for lease rent and the nature
and extent of the relief which can finally be granted. The Arbitral
Tribunal shall consider these questions independently and in
accordance with law.

45.   In the result, the Applications are allowed to the limited
extent of referring the disputes between the Applicant and
Respondent No.1 arising from the Development Agreement dated
4 October 2002 to arbitration. The objection of Respondent No.1
that the substantive claims of the Applicant are barred by
limitation is left open for determination by the Arbitral Tribunal.
However, insofar as the Applications seek appointment of an
Arbitrator for adjudicating disputes against Respondent No.2, the
same cannot be granted in the absence of sufficient prima facie
material showing that Respondent No.2 is bound by the arbitration



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agreement contained in Clause 33.
46.   In the aforesaid circumstances, the present Applications
under Section 9 and 11 of the Act, are disposed of in terms of the
following order:

      A)   Mr. Tushad Kakalia, an advocate of this Court, is hereby
      appointed as the Sole Arbitrator to adjudicate upon the
      disputes and differences between the Applicant and
      Respondent No.1 arising out of or in connection with the
      Development Agreement dated 4 October 2002, including
      the disputes relating to execution of the Lease Deed and
      payment of lease rent, are liable to be referred to arbitration
      in terms of Clause 33 of the said Development Agreement;

      Office Address:- Aban House, 25-31, 6th Floor, Kakushroo
      Dubash Marg, Kala Ghoda, Fort, Mumbai – 400001.

      Contact No.9833212724

      B)   A copy of this Order will be communicated to the
      Learned Sole Arbitrator by the Advocates for the Applicant
      within a period of one week from today. The Applicant 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 Advocates for the
      Applicant so as to enable them to file the same in the
      Registry of this Court. The Registry of this Court shall retain




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      the said Statement on the file of this Applicant and a copy of
      the same shall be furnished by the Advocates for the
      Applicant to the Advocates for the Respondent;

      D)      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;

      E)      The parties shall appear before the Learned Sole
      Arbitrator on such date and at such place as may be
      indicated by the Learned Sole Arbitrator, for obtaining
      appropriate directions with regard to the conduct of the
      arbitral proceedings, including fixing the schedule for filing
      of pleadings, examination of witnesses, if any, and dates of
      hearing. At such meeting, the parties shall furnish to the
      Arbitral Tribunal valid and functional email addresses,
      together with the mobile and landline telephone numbers of
      their respective Advocates. Communications sent to the said
      email       addresses   shall        constitute      valid      service       of
      correspondence in connection with the arbitral proceedings.

      F)      All arbitral costs and fees of the arbitration and of the
      Arbitral Tribunal shall be borne by the parties equally in the
      first instance. The same shall remain subject to any final
      Award that may be passed by the Arbitral Tribunal in relation
      to costs.

47.   Both the Applications, originally filed under Section 9 of the
Arbitration and Conciliation Act, 1996, are treated and converted




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as Applications under Section 17 of the Arbitration and
Conciliation Act, 1996.

48.   The Learned Sole Arbitrator shall be at liberty to adjudicate
upon the claims and counterclaims, if any, and to determine all
questions relating to merits, in accordance with law.

49.   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.

                                            (AMIT BORKAR, J.)




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