RAJESH PALversusSIDAAN ENTERPRISES

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

                               COMM ARBITRATION APPLICATION NO.410 OF 2026

                           1. Rajesh Pal

ATUL                       2. Arvind Pal
GANESH
KULKARNI                   3. Kishore Pal
Digitally signed by        4. Mitul Pal                                … Applicants
ATUL GANESH
KULKARNI
Date: 2026.09.21
11:36:58 +0530
                                               Vs.

                           1. Sidaan Enterprises
                           2. Dhiraj Shah
                           3. Raxit Prasad                             … Respondents



                      Mr. Rajiv Narula with Ms. Nidhi Loya i/by Jhangiani
                      Narula & Associates for the Applicants.
                      Mr. Preet Chheda for Respondent Nos.1 to 3.



                                             CORAM               : AMIT BORKAR, J.

                                             RESERVED ON         : SEPTEMBER 17, 2026.

                                             PRONOUNCED ON       : SEPTEMBER 21, 2026

                      JUDGMENT:

                      1.      By the present Arbitration Application filed under Section 11
                      of the Arbitration and Conciliation Act, 1996, the Applicants seek
                      appointment of an Arbitrator to resolve the disputes and
                      differences which have arisen between the Applicants and the



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Respondents in relation to the Development Agreement dated 12
February 2016 entered into between the Applicants and the
Respondents.

2.   According to the Applicants, the facts which have led to
filing of the present Application are as follows. A Deed of
Assignment bearing Registration No. BOW/3420/1936 was
registered with the Sub-Registrar, Bombay. The said Deed was
entered into between Mr. Udhav Hanumant Kulkarni and the
deceased owner in respect of the said property on 3 October 1963.
Thereafter, by her Last Will and Testament dated 17 December
2013, the deceased owner provided in Clause (c) that, after her
death, the monetary benefits which would arise from the said
property after its redevelopment would be divided into five equal
parts. Her share was to be given to her grandson, namely,
Applicant No. 4. On 4 May 2014, a Family Settlement was entered
into between the deceased owner, the Applicants and other
members of the family. Under the said settlement, the parties
arrived at an understanding regarding their respective rights and
interests in relation to the proposed construction on the said
property. Thereafter, on 21 March 2015, a Memorandum of
Understanding was entered into between the deceased owner and
Respondent Nos. 1 and 2. Subsequently, on 12 February 2016, a
Development Agreement was entered into between the deceased
owner and the Respondents. Under the said Development
Agreement, it was agreed that the said property would be
redeveloped on the terms and conditions stated therein.




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3.   On 19 January 2019, an Addendum to the Development
Agreement dated 12 February 2016 was entered into between the
deceased owner and the Respondents. On 4 January 2019, another
Addendum to the Development Agreement dated 12 February
2015 was entered into between the deceased owner and the
Respondents. Thereafter, on 4 October 2019, a Supplementary
Agreement was entered into between the deceased owner along
with the Applicants and the Respondents. On 16 November 2019,
a third Addendum to the Development Agreement dated 12
February 2015 was entered into between the deceased owner and
the Respondents. Thereafter, on 22 December 2019, the deceased
owner, Mrs. Snehlata K. Pal, passed away. On 8 August 2022,
Applicant No. 3 addressed a notice to the Respondents calling
upon them to immediately stop construction, as according to
Applicant No. 3, the construction was being carried out without
obtaining his consent. Applicant No. 3 called upon the
Respondents to pay him a sum of Rs. 1,53,00,000/-, which
according to him was assured under the Second Addendum dated
21 January 2019. Thereafter, on 6 September 2022, Applicant No.
3, through his Advocates, addressed another legal notice bearing
reference No. RNN/42512022 to the Respondents. By the said
notice, the Respondents were again called upon to immediately
stop construction, as the same was being carried out without
obtaining the consent of Applicant No. 3. The Respondents were
called upon to pay the sum of Rs. 1,53,00,000/- assured to
Applicant No. 3 under the Second Addendum dated 21 January
2019, within seven days from receipt of the said notice.




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4.     On 21 September 2022, the Respondents, through their
Advocates, replied to the legal notice dated 6 September 2022.
The Respondents denied the contents of the said legal notice and
stated that settlement talks between the parties were still in
progress. According to the Respondents, therefore, invocation of
the arbitration clause at that stage was premature. In April 2023,
the original plan attached with the IOD showed that the Ground
Floor was to have spaces for an electricity sub-station and a fitness
centre. Subsequently, on or about 6 October 2023, the sanctioned
plans were again amended and parking spaces were shown in the
stilt area. On 11 September 2025, the Applicants addressed a letter
to the Respondents seeking payment against the retained area of
241 sq. ft. carpet area, after statutory deductions. According to the
Applicants, this amount was guaranteed to them under Clause No.
3 of the Second Addendum dated 19 January 2019 to the
Development Agreement dated 12 February 2016. Thereafter, on
30 November 2025, a reminder letter was again sent to the
Respondents, demanding payment of Rs. 1,32,55,000/- in four
equal parts. According to the Applicants, this amount represented
the value equivalent to the aforesaid 241 sq. ft. carpet area
retained by the Respondents. Thereafter, on 14 May 2026, the
Applicants, through their Advocates, issued notices invoking
arbitration under Section 21 of the Arbitration and Conciliation
Act,    1996,     bearing    reference     Nos.     RNN/239/2026,
RNN/240/2026, RNN/241/2026 and RNN/242/2026. By these
notices, the Applicants brought to the notice of the Respondents
the breaches and defaults which, according to the Applicants, had




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been committed by the Respondents under the Development
Agreement.

5.    In the said notices, the Applicants nominated Sole Arbitrator
and called upon the Respondents to give their concurrence to such
appointment within 15 days from receipt of the notices. The
Applicants stated that, if the Respondents failed to concur within
the said period, the Applicants would be required to take
appropriate proceedings under Section 11 of the Arbitration and
Conciliation Act, 1996 before this Court. On 27 May 2026, the
Respondents, through their Advocate, replied to the Invocation
Notice and stated that instructions were being obtained from their
client. At the same time, the Respondents denied the contents of
the said notice. Thereafter, on 17 June 2026, the Respondents,
through their Advocate, gave a detailed reply to the Invocation
Notice dated 14 May 2026. In the said reply, the Respondents
stated that invocation of arbitration was unlawful, void and
unsustainable in facts as well as in law. In these circumstances, the
Applicants have filed the present Application seeking appointment
of an Arbitrator.

6.    Mr. Narula, learned Advocate for the Applicants, submits that
under the Development Agreement, Clause No. 15 records the
obligation   of     the   Respondents   to   provide   6    approved
covered/enclosed parking spaces in the Stilt area. However,
thereafter, the Respondents represented to the Applicants that
providing parking spaces in the Stilt area was not possible because
of planning difficulties. The Respondents stated that they were
proposing to provide a Fitness Centre in the Stilt area, as shown in



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the IOD issued by the Corporation. On the request of the
Respondents, the Applicants agreed to enter into the Addendum
dated 19 January 2019 to the Development Agreement. Under
Clause 2 of the said Addendum, the Applicants agreed to accept,
instead of 6 covered/enclosed car parking spaces, 6 slots in the
Mechanical Pit Puzzle Parking System. It was agreed that after
providing the said six slots in the Mechanical Pit Puzzle Parking
System, the remaining parking spaces would be shared in the
proportion of 60% to the Developer, namely Respondent No. 1,
and 40% to the Owners, namely the Applicants.

7.     He submits that thereafter, on or about 6 October 2023, the
Plans were again amended, and parking spaces were shown in the
Stilt area. According to the Applicants, when the parking spaces in
the Stilt area were again shown in the amended Plans, the
Applicants became entitled to the said six parking spaces in the
Stilt area, particularly when the earlier arrangement had been
changed by the subsequent Addendum and Modification. However,
the said six parking spaces have not been given to the Applicants.
According to him, this amounts to a clear breach of the obligations
of the Respondents, who are acting as the Developer under the
Development Agreement dated 12 February 2016. He submits that
the Applicants have accordingly occupied six parking spaces in the
Stilt area because these spaces were meant for the Applicants and
were    subsequently   changed       by   the   Addendum     on     the
representation made by the Respondents. According to the
Applicants, the said modification was made on a false basis. The
occupation of these six spaces is, however, being disputed by



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Respondent No. 4. It is submitted that Respondent No. 1 has not
taken any clear position or given any final clarification regarding
the actual status of these parking spaces. It is submitted that the
said area was shown for the Elevator Sub Station and Fitness
Centre on the ground floor of the property. However, without
informing the Applicants and without obtaining their written joint
consent, Respondent No. 1 has included the said area within the
property without providing the facilities for which the area was
shown. According to the Applicants, this amounts to a breach of
the Development Agreement dated 12 February 2016 and the
subsequent Addendums entered into between the parties.

8.   He submits that under Clause No. 3 of the Second
Addendum dated 21 January 2019 to the Development Agreement
dated 12 February 2016, Respondent No. 1 had retained a balance
area of 241 sq. ft. carpet area as security for certain payments.
These payments included GST on rent, if applicable, corpus
payable to the family members, and stamp duty and registration
charges relating to the Gift Deed executed in favour of the family
members of the deceased owner. According to the Applicants, GST
is not applicable in either of the cases. Even then, Respondent No.
1 has not released the amount equivalent to Rs. 1,32,55,000/-. It is
submitted that the corpus amount of Rs. 9,70,800/- payable in
respect of the deceased owner, which has become due to the
Applicants after her death, remains unpaid. Similarly, the rent
payable to Applicant No. 3 for the period from February 2020 to
March 2023, amounting in all to Rs. 2,68,550/-, has not been paid
by Respondent No. 1. He submits that Clause No. 8 of the



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Development Agreement dated 12 February 2016 provided rights
in respect of the pocket terrace on the last habitable floor, except
for the common terrace situated above the last habitable floor.
According to the Applicants, however, these terrace rights have not
been given to them. He submits that Respondent No. 1 was
required to provide certain amenities, including installation of
CCTVs and Intercom facilities. These facilities have not been
provided till date. At the same time, advance maintenance charges
have been collected from the Applicants and from other tenants
and occupiers of the said property.

9.    Mr. Chheda, learned Advocate for Respondent Nos. 1 to 3,
submits that the Applicants had invoked arbitration under Clause
32 of the Development Agreement much earlier and not on 14
May 2026, as is sought to be shown in the present Application.
According to him, arbitration was invoked on 6 September 2022.
The legal notice dated 6 September 2022 bearing Reference No.
RNN/425/2022 was issued by the same Advocates who have
issued the Invocation Notice dated 14 May 2026 and who are
appearing for the Applicants in the present Application. In the said
notice, it was stated that, if the payment was not made within
seven days, “it will be deemed that disputes and differences have
arisen between you and our client and our clients do hereby
invoke the Arbitration Clause contained in the said Development
Agreement dated 12 February 2016 and hereby nominate
Advocate of this court as sole arbitrator. The Respondents were
called upon to give their consent to the said nomination within
seven days. He submits that Respondent Nos. 1 to 3, through their



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Advocates, replied to the said notice on 21 September 2022. They
denied all the allegations made against them and did not agree to
the appointment of the proposed Arbitrator. According to Mr.
Chheda, therefore, the right of the Applicants to approach the
Court under Section 11 of the Act arose on or about 21 September
2022. In any event, according to him, such right arose at the latest
after expiry of thirty days from receipt of the said notice. The
period of three years provided under Article 137 of the Limitation
Act, 1963 came to an end on or about 20 September 2025.

10.   He submits that after the arbitration was invoked in the year
2022, the Applicants did not take any proceedings whatsoever. No
application under Section 11 of the Act was filed within three
years from the said invocation notices. No Arbitral Tribunal was
constituted during this period. According to him, nothing was done
by the Applicants for nearly four years. The present Application,
which was affirmed on or about 29 June 2026, has been filed
nearly four years after the right to apply first arose and more than
nine months after expiry of the period of limitation. Mr. Chheda
submits that the Applicants have tried to overcome this difficulty
by describing the disputes raised in the Invocation Notice dated 14
May 2026 as fresh disputes. According to him, this description is
clearly incorrect. A comparison of the notice dated 6 September
2022, the Invocation Notice dated 14 May 2026 and the present
Application shows that the subject matter in all three is
substantially the same. According to him, the dispute concerns the
alleged shortfall in the area and other benefits which are claimed
to be payable to the deceased Owner and her family members



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under the Development Agreement and the Addendums. The
parties are the same. The relevant agreements and documents are
the same. The alleged breaches arise from the very same
Development Agreement. He submits, in the alternative, that even
if the case of the Applicants as stated in the present Application is
accepted, the claims now sought to be raised had arisen more than
three years before 14 May 2026.

11.   Mr. Chheda submits that Applicant Nos. 1, 2 and 4, namely,
Mr. Rajesh Pal, Mr. Arvind Pal and Mr. Mitul Pal, are not parties to
any of the three arbitration clauses which they seek to invoke.
According to him, there is not even a prima facie arbitration
agreement between these Applicants and Respondent Nos. 1 to 3.
As regards Applicant No. 3, Mr. Kishore Pal, he is a party to only
one document, namely, the Second Addendum, and that too only
as a Confirming Party. According to Mr. Chheda, the arbitration
clause in that document is limited to disputes arising under that
particular document. Applicant No. 3 is not a party to Clause 32 of
the Development Agreement or Clause 8 of the Third Addendum,
though he has sought to invoke both these clauses. He submits that
merely because Applicant No. 3 is described as a Confirming Party
to the Second Addendum, he cannot claim rights under that
document, seek performance of obligations under it, or claim that
any independent rights have accrued in his favour. According to
him, therefore, there can be no dispute between Applicant No. 3
and these Respondents under the Second Addendum which would
give Applicant No. 3 a right to invoke arbitration. In support of his
submissions, Mr. Chheda relied upon the judgment of the Delhi



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High Court in Golden Chariot Recreations Private Limited vs.
Mukesh Panika & Another, Arbitration Petition No. 593 of 2020,
decided on 9 July 2021.

REASONS AND FINDINGS:

12.   I have considered the submissions made by Mr. Narula,
learned Advocate for the Applicants, and Mr. Chheda, learned
Advocate for Respondent Nos. 1 to 3. I have considered the
documents and the dates placed before the Court. The main
objection of the Respondents is that the Applicants had invoked
arbitration in the year 2022. Therefore, according to the
Respondents, the right of the Applicants to approach this Court
under Section 11 had arisen at that time. According to them, the
Applicants cannot issue another notice in the year 2026 and
thereby make the limitation period start again. On the other hand,
the Applicants say that the disputes mentioned in the Invocation
Notice dated 14 May 2026 are different disputes and have arisen
because of later breaches by the Respondents.

13.   The first question which arises for consideration is whether
the present Application is only an attempt by the Applicants to
bring back the same disputes for which arbitration had been
invoked in the year 2022, or whether the Invocation Notice dated
14 May 2026 raises separate disputes arising from later acts and
breaches of the Respondents. This has to be decided by looking at
the nature of the disputes. Merely because all the disputes arise
from the same Development Agreement, it cannot mean that all
the disputes are the same.




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14.   There is no dispute regarding the legal position that Article
137 of the Limitation Act, 1963 applies to an application filed
under Section 11 of the Arbitration and Conciliation Act, 1996.
The period of limitation is three years from the date when the right
to file such application arises. The Supreme Court in Arif Azim
Company Limited v. Aptech Limited, 2024 INSC 155, after
considering the earlier judgments, has held that the right to
approach the Court under Section 11 arises after a valid notice
invoking arbitration is given and the other side fails or refuses to
act as required under the arbitration agreement. The Supreme
Court has made a distinction between the limitation for filing a
Section 11 Application and the limitation relating to the actual
claim or dispute. These two periods are different and cannot be
treated as one.

15.   In the present case, Respondent Nos. 1 to 3 rely upon the
notice dated 6 September 2022. According to them, arbitration
was invoked by that notice. They submit that their reply dated 21
September 2022 amounted to refusal to agree to the appointment
of the Arbitrator proposed by the Applicants. Therefore, according
to the Respondents, the right to file an Application under Section
11 arose in September 2022. If this submission is accepted, the
present Application filed in the year 2026 would be beyond the
period of three years.

16.   There is substance in the submission of the Respondents to
the extent that an old dispute cannot be kept alive only by sending
repeated notices. Once a dispute has arisen, arbitration has been
validly invoked and the other side has refused or failed to act as



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required under the arbitration agreement, the period for
approaching the Court cannot be started again by sending another
notice after the earlier period has expired. In Golden Chariot
Recreations Pvt. Ltd. v. Mukesh Panika and Another , 2021 SCC
OnLine Del 5808 : (2021) 5 Arb LR 452, the Delhi High Court
considered a similar issue. In paragraph 8, the Court observed:

     “8. The Petitioner's contention that the aforesaid judgment
     would not have a bearing on the present petition, on the
     ground that it has been premised on a fresh cause of action,
     is fallacious. The distinction between the causes of action for
     the two petitions viz. the attempt to sell and the actual sale,
     is nothing but an attempt to creation an illusion of a fresh
     cause of action. This so-called ‘fresh’ cause of action would
     not extend the limitation period. At the cost of repeating ad
     nauseum, the cause of action for arbitration, being the flash
     point for the purpose of reckoning the period of limitation,
     has accrued by way of the stand of Respondent denying the
     arbitration agreement vide its reply dated 22nd December,
     2014. Limitation is to be calculated as three years from the
     expiry of thirty days from the date of service of the first
     invocation notice. Therefore, in the present lis, the third
     invocation notice dated 12th September, 2020, based on the
     same partnership deed and arbitration agreement, but
     alleging subsequent actions of the Respondents, cannot
     infuse fresh life into a dead claim. In fact, this very
     contention stands rejected by this Court by way of the earlier
     judgment of a coordinate bench, as extracted above. Besides
     on facts, this court finds no difference between the causes of
     action urged by the Petitioner in the two petitions. In both,
     the petitioner had made an averment that the Respondent is
     selling the suit premises. No superficial change in the
     circumstances would amount to a fresh cause of action that
     would extend the period of limitation.”



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17.   The principle stated in the above judgment would apply
where the dispute shown as a later dispute is the same dispute
which had arisen earlier. But this principle cannot be understood
to mean that once arbitration is invoked under an agreement, no
dispute which arises later under the same agreement can ever be
referred to arbitration. A contract can give rise to different
disputes at different points of time. If a particular breach had not
taken place when the first dispute was raised, such later breach
cannot be treated as time barred only because it arises under the
same contract.

18.   This distinction is important in view of the later decisions of
the Supreme Court. In M/s Bhagheeratha Engineering Ltd. v. State
of Kerala, 2026 INSC 4, the Supreme Court has explained that
Section 21 relates to commencement of arbitration in respect of a
particular dispute and is relevant for deciding limitation. The
Supreme Court has stated that a claim covered by the arbitration
agreement does not become incapable of being raised merely
because it was not mentioned in an earlier notice. However, such
claim must otherwise be within limitation and must fall within the
arbitration agreement. Therefore, merely because the Development
Agreement is the same, it cannot be said that every later breach
under that Agreement is part of the same cause of action. The
Court has to see when the particular breach took place and what
exactly was the dispute raised by the Applicants in the earlier
invocation.

19.   In the present case, Mr. Narula has drawn my attention to
the earlier Invocation Notice dated 9 December 2022. He submits



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that the dispute raised in that notice was regarding the FSI which,
according to the Applicants, became available because of change in
the rules. According to him, the Invocation Notice dated 14 May
2026 concerns different matters. The present notice concerns non-
allotment of parking spaces, failure to provide CCTV and intercom
facilities, alleged unauthorised changes in the floor plans,
withholding of corpus amounts payable to the Applicants and the
issue relating to the pocket terraces. When this submission is
considered along with the material placed before the Court, it
cannot at this stage be said that every dispute mentioned in the
Invocation Notice dated 14 May 2026 is merely a repetition of the
dispute raised in the year 2022. The dispute regarding six parking
spaces, as pleaded by the Applicants, is connected with the
subsequent amendment of the sanctioned Plans on or about 6
October 2023. The Applicants say that the earlier parking
arrangement was changed by the Addendum because the
Respondents had represented that Stilt parking was not possible.
According to the Applicants, when the Plans were later amended
and Stilt parking again appeared in the sanctioned Plans, a
separate question arose as to whether the Applicants were entitled
to the six Stilt parking spaces. Whether the Applicants are
ultimately correct in their interpretation of the Development
Agreement and the Addendum is not required to be finally decided
at this stage. What is material for the present purpose is that the
event relied upon by the Applicants took place in October 2023.

20.   Similarly, the allegation regarding non-provision of CCTV
and intercom facilities is stated to relate to the period after



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completion of the building, handing over of possession and grant
of the Occupation Certificate. The Applicants rely upon the fact
that the Occupation Certificate was granted and possession was
handed over in October 2023. The grievance regarding the pocket
terrace is stated to have arisen after completion of the building
and handing over of possession. On the material presently before
the Court, these events cannot be said to have taken place in
September or December 2022.

21.   The Respondents have relied upon these allegations to
submit that the disputes had arisen earlier. However, the dates
relied upon by the Respondents themselves show that different
claims have different dates from which they arose. The claim
towards rent admittedly relates to the period from February 2020
to March 2023. Similarly, the claim of Rs.1,53,00,000/- is stated in
the Applicants' own notices to have become payable at the time of
casting the last slab. According to the Respondents, that event had
taken place before August 2022. These claims stand on a different
footing from a breach which is stated to have arisen because of the
amendment of the sanctioned Plans in October 2023 or because of
non-provision of facilities after completion of the building. It is
necessary to keep the old claims and the later disputes separate. A
claim which had arisen and had become payable in the year 2022
cannot be brought back to life merely by including it in a fresh
notice dated 14 May 2026. Similarly, a claim relating to rent up to
March 2023 cannot become a fresh claim in the year 2026 merely
because a demand was made later. Issuing a demand or reminder
does not by create a new cause of action where the right to receive



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the amount had arisen earlier.

22.     This position is supported by the decision of the Supreme
Court in State of West Bengal & Ors. v. M/s B.B.M. Enterprises ,
2026 INSC 358. The Supreme Court reiterated that a subsequent
notice cannot be used to create a fresh starting point for a claim
which had become stale. At the same time, the Court has explained
that at the stage of Section 11, the Court should not conduct a
detailed examination of evidence on every question of limitation.
Intervention is justified where the claim is clearly and ex-facie
dead.

23.     The submission of Mr. Chheda that the Applicants did not
take any proceedings after the 2022 invocation cannot be ignored.
If the entire present Application was based upon exactly the same
disputes which had been invoked in 2022, the Applicants could not
have waited until May 2026 and then tried to start the period of
limitation once again. The reply dated 21 September 2022 relied
upon by the Respondents shows that the Respondents did not
agree to the appointment proposed by the Applicants. Therefore,
in respect of those disputes, the Applicants had a remedy to
approach this Court under Section 11.

24.     But this does not decide the separate question concerning
disputes which arose later. If a particular dispute had not arisen in
the year 2022, the right to seek appointment of an Arbitrator in
respect of that dispute could not have arisen in 2022. The
limitation for such later dispute has to be considered from the time
when that particular dispute arose and when the procedure for




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appointment under the agreement failed. There is difference
between saying that the Development Agreement is the same and
saying that the cause of action is the same. The first may be
correct. The second does not follow. In the present matter, the
parking dispute, as pleaded by the Applicants, is connected with
the revised sanctioned Plans of October 2023. The complaints
regarding amenities and pocket terrace are stated to have arisen
upon completion of the building and handing over of possession in
October 2023. These events are subsequent to the earlier
invocation. A fresh breach arising from a later event cannot be
treated as an old dispute merely because the parties are governed
by the same Development Agreement.

25.   The judgment in Golden Chariot supports the Respondents
only to the limited extent that a subsequent notice cannot bring a
dead claim back to life. It does not require the Court to treat an
actual later breach as if it had arisen several years earlier. In
Golden Chariot, the Court found on the facts of that case that there
was no real difference between the causes of action in the two
proceedings and that the alleged later event was only another
stage of the same dispute. The facts before this Court are different
to that extent, because several of the present complaints are based
upon events which, according to the Applicants, occurred after the
earlier invocation.

26.   I find that the objection of limitation cannot be accepted as a
reason for rejecting the present Application. At the same time, I
find that those claims which had arisen in the year 2022, or which
had otherwise become enforceable more than three years before



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the present Section 11 proceedings, cannot be revived merely by
mentioning them again in the Invocation Notice dated 14 May
2026. The old claims and the later disputes will have to be kept
separate.

27.   There is an objection raised by Mr. Chheda regarding the
position of Applicant Nos. 1, 2 and 4. According to him, these
Applicants are strangers to the relevant arbitration clauses. In
respect of Applicant No. 3, it is submitted that he is only a
Confirming Party to the Second Addendum and cannot claim
independent rights under that document. This objection relates to
the existence and extent of the arbitration agreement between the
particular Applicants and the Respondents. At the stage of Section
11, the Court is required to see whether an arbitration agreement
exists and whether the persons seeking reference are parties to
that arbitration agreement. The Supreme Court in Adavya Projects
Pvt. Ltd. v. M/s Vishal Structurals Pvt. Ltd. & Ors. , 2025 INSC 507,
has recognised that the question whether a person is a party to the
arbitration agreement is relevant at the stage of reference. At the
same time, where a person is said to be a non-signatory, the Court
has to look at the transaction as a whole and the conduct of the
persons concerned. A person cannot be treated as a complete
stranger only because his signature is not found on every
document forming part of the transaction.

28.   In the present case, it is not in dispute that the Applicants
are connected with the overall transaction. The material before the
Court refers to the Family Settlement dated 4 May 2014 and the
Supplementary Agreement dated 4 October 2019, in which the



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Applicants are stated to be parties. There are various Addendums
which form part of the transaction between the parties. Therefore,
the broad submission that the Applicants have no connection at all
with the contractual arrangement cannot be accepted. However,
the exact question as to which Applicant is bound by which
particular arbitration clause will depend upon the terms of the
relevant document and the wording of the arbitration clause
contained in it. Applicant No. 3 is described by the Respondents as
a Confirming Party to the Second Addendum. Merely because he is
described as a Confirming Party does not by decide whether the
arbitration clause in that document covers the dispute which he is
seeking to raise. That question depends upon the actual language
of the document and the rights and obligations recorded in it. At
this stage, therefore, the objection raised by the Respondents
requires examination of the contractual documents and cannot be
accepted merely because Applicant No. 3 has been described as a
Confirming Party.

29.   At the stage of Section 11, the Court is not required to
conduct a full trial regarding every breach alleged by the
Applicants. The Supreme Court has stated that the Court has to
make a limited examination and should not conduct a detailed
examination of evidence. Where the dispute is arguable and arises
from interpretation of the contract, the normal course is to leave
the issue for determination by the Arbitral Tribunal. The Court can
refuse reference where the claim is clearly time barred and dead.
But the Section 11 proceedings should not be converted into a full
trial regarding limitation or the contractual rights of the parties.



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30.   On considering the matter as a whole, I am unable to accept
the submission that the Invocation Notice dated 14 May 2026 is
barred merely because an earlier notice had been issued in the
year 2022. The material before the Court shows that some of the
disputes in the present invocation are based upon later events,
particularly the amendment of the sanctioned Plans in October
2023, completion of the building and the alleged failure to provide
facilities thereafter. At this stage, such disputes cannot prima facie
be treated as dead claims merely because there was an earlier
invocation. If the contrary view is taken, it would mean that once
one dispute is raised under a Development Agreement, every later
breach under the same Agreement would become incapable of
being referred to arbitration. Such a position cannot be accepted.
At the same time, the Applicants cannot use a later notice only as a
way to bring back claims for which the right to approach the Court
had expired. Therefore, after the Arbitral Tribunal is constituted,
the individual claims will have to be examined according to the
date on which each claim arose and the applicable provisions of
the Limitation Act.

31.   In view of the above discussion, I hold that the present
Section 11 Application cannot be rejected merely on the general
ground that arbitration had been invoked in the year 2022. The
objection regarding stale claims is accepted only to the limited
extent that a claim which had become ex-facie barred cannot get a
fresh period of limitation merely because the same claim is
repeated in the Invocation Notice dated 14 May 2026. However,
disputes which genuinely arise from subsequent events cannot, for



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that reason alone, be treated as barred.

32.   In view of the finding recorded hereinabove that there exists
an arbitration agreement between the parties, and in view of the
submissions made by both the learned Advocates that, in the event
this Court comes to such conclusion, a Sole Arbitrator may be
appointed, hence I pass following the following order:

      A)   Ms. Arti Raghavan, Advocate of this court is hereby
      appointed as the Sole Arbitrator to adjudicate upon the
      disputes and differences between the Applicants and the
      Respondents arising out of the Development Agreement
      dated 12 February 2016 and the subsequent Addendums and
      Agreements, including the claims and counterclaims arising
      therefrom, subject to the observations made in the judgment;

      Office Address:- 401, Embassy Centre, Jamanalal Bajaj Marg,
      Nariman Point , Mumbai

      Email: [email protected]

      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




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      Applicant so as to enable them to file the same in the
      Registry of this Court. The Registry of this Court shall retain
      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 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;

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

33.   All issues on merits are expressly kept open to be agitated
before the arbitral tribunal appointed hereby.



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34.   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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