Laxman Mura VaidversusShree SIddivinayak Infrastructure and Realty A Partnership Firm

                                                           carap637-2026 with carbpl14014-2026-J.doc


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

                              COMM ARBITRATION APPLICATION NO.637 OF 2026
                                                    WITH
                             COMM ARBITRATION PETITION (L) NO.14014 OF 2026


                           1. Laxman Mura Vaid
                           2. Rasila Laxman Vaid                        … Applicants

                                            Vs.

                      Shree Siddhivinayak Infrastructure
                      & Reality, a partnership firm.                    … Respondent



ATUL                  Mr. Jeetendra Ranawat with Mr. Sandeep Kumar for
GANESH
KULKARNI              the Applicants/Petitioners.
Digitally signed by
ATUL GANESH
KULKARNI
                      Mr. Abhishek Kothari with Mr. Anirudh Ashok for the
Date: 2026.09.21
14:37:42 +0530        Respondent.


                                         CORAM                 : AMIT BORKAR, J.

                                         RESERVED ON           : SEPTEMBER 17, 2026.

                                         PRONOUNCED ON         : SEPTEMBER 21, 2026

                      JUDGMENT:

                      1.      The Applicants have filed the present Application under
                      Section 11(6) of the Arbitration and Conciliation Act, seeking
                      appointment of an Arbitrator in respect of the disputes arising
                      from the Agreement for Sale dated 11th March 2022. The said




                                                      1
                                       carap637-2026 with carbpl14014-2026-J.doc


Agreement for Sale contains an arbitration clause providing for
resolution of disputes between the parties through arbitration.

2.    The parties entered into and executed a registered
Agreement for Sale dated 11 March 2022 in respect of the project
known as “Ruparel Skygarden” situated at Kandivali. The
Respondent, through its finance associate partner, offered a
subvention scheme under which the payment was to be made in
the ratio of 5:90:5. Although a Tripartite Agreement was executed
between the parties and the Respondent’s associate partner, DHFL,
the Respondent failed to comply with its terms and conditions. The
Applicants state that they were required to pay interest to DHFL,
amounting to Rs. 12,99,557/-, even though such payment was to
be made by the Respondent to its finance associate partner. From
time to time, the Respondent issued letters demanding payment of
the balance amount. The Applicants, in response, requested the
Respondent to hold a meeting so that the accounts and payments
could be reconciled. According to the Applicants, the Respondent
did not agree to reconcile the accounts and instead issued a
Termination Notice dated 3 January 2026. The Applicants invoked
Clause 86 of the Agreement for Sale. The present Application has
been filed seeking appointment of an Arbitrator to resolve the
disputes between the parties. According to the Applicants, the
relevant facts leading to the filing of the present Application are as
follows.   The   Respondent    had    advertised      commercial          and
residential units in its project known as “Ruparel Skygreens”. The
Respondent offered a subvention scheme of 5:90:5 to persons
booking flats in the project. The Applicants state that, after



                                  2
                                         carap637-2026 with carbpl14014-2026-J.doc


accepting the said scheme, they booked Flat No. 3903 on the 39th
floor in “A” Wing of the project. The Respondent issued a Letter of
Allotment dated 12 June 2017. Thereafter, a Tripartite Agreement
was executed on 28 November 2017 between the parties and the
Respondent’s      associate   finance   partner,    DHFL.        Under       the
subvention scheme, the first and third instalments, each being 5%
of the total consideration, were to be paid by the Applicants,
whereas the remaining 90% was to be paid by DHFL on behalf of
the Applicants.

3.    The parties registered the Agreement for Sale in respect of
Flat No. 3903 in the said project on 11 March 2022. According to
the Applicants, the Respondent had assured that possession of the
flat would be handed over on or before 31 December 2022. The
Applicants state that DHFL, the Respondent’s associate finance
partner, subsequently became bankrupt and that the Respondent
failed to honour the assurances given by it. According to the
Applicants, under the subvention scheme and the Tripartite
Agreement, the Respondent was required to pay the EMI interest
to DHFL on behalf of the Applicants. However, the Respondent
failed to make such payment. The Applicants paid a sum of Rs.
12,99,557/- to DHFL. Thereafter, the Respondent demanded
payment of the balance amount by email dated 12 March 2025.
The Applicants replied and requested a meeting for reconciliation
of the accounts. According to the Applicants, they have been ready
and willing to pay the balance consideration, subject to proper
reconciliation of the accounts.




                                    3
                                           carap637-2026 with carbpl14014-2026-J.doc


4.      The Respondent issued a Termination Notice dated 3 January
2026. The Applicants invoked Clause 86 of the Agreement for Sale
and issued a statutory notice dated 21 February 2026. According to
the Applicants, the Respondent did not reply to the said notice.
The Applicants have filed the present Arbitration Application
seeking appointment of an Arbitrator.

5.      Mr. Ranawat, learned Advocate for the Applicants, submits
that the parties entered into and executed a registered Agreement
for Sale dated 11 March 2022 in respect of Flat No. 3903, situated
on the 39th floor of “A” Wing, admeasuring 619 sq. ft. carpet area,
in the proposed building known as “RUPAREL SKYGREENS”. The
total    consideration    agreed    between       the    parties      was      Rs.
1,33,89,000/-, inclusive of the proportionate price of the common
areas and facilities attached to the said premises. The extent and
description of the common and limited common areas and
facilities were shown in the plan annexed to the Agreement for
Sale. It is submitted that the Respondent admitted that it had
received Rs. 59,64,800/- towards earnest consideration. Thus,
according to the Applicants, a balance amount of Rs. 74,24,200/-
remained     payable     out   of   the   total    consideration         of    Rs.
1,33,89,000/-. It is submitted that under the Agreement for Sale
dated 11 March 2022, the Respondent had agreed to make efforts
to hand over possession of Flat No. 3903 on or before 30
December 2022. According to the Applicants, the Respondent
failed to comply with this commitment and did not hand over
possession within the agreed period. The Applicants submit that,
despite the obligation regarding the time for delivery of



                                     4
                                      carap637-2026 with carbpl14014-2026-J.doc


possession, the Respondent failed to hand over the flat as assured
under the Agreement for Sale dated 11 March 2022.

6.   Mr. Ranawat submits that, through their emails, the
Applicants had made it that they were ready and willing to pay the
balance consideration payable under the Agreement for Sale. It is
submitted that, although the Respondent had offered the
subvention scheme, it failed to pay the pre-interest EMI to its
associate finance partner, DHFL. The Applicants paid an amount of
Rs. 12,99,557/- towards the interest payable to the finance
company. According to the Applicants, this payment shows their
readiness and willingness to perform their obligations under the
Agreement for Sale. The Applicants reserve their right to claim
interest on account of the delay in handing over possession, as
provided under the Agreement for Sale.

7.   Mr. Ranawat submits that the Applicants, by their reply
dated 11 January 2026 to the Respondent’s Termination Notice
dated 3 January 2026, requested that the dispute be resolved.
According to the Applicants, the Respondent did not show any
willingness to settle the differences amicably. The Applicants
invoked Clause 86 of the Agreement for Sale dated 11 March 2022
and sought resolution of the disputes and differences between the
parties through arbitration. For ease of reference, Clause 86 reads
as under:

     “Clause 86 :- PROVIDED AND that if any dispute, difference,
     or question at any time hereafter arises between the parties
     hereto or their respective representatives or between
     Allotee/s of other said flat / unit in the said building and the



                                 5
                                       carap637-2026 with carbpl14014-2026-J.doc


     promoter in respect of the construction of these presents or
     concerning anything hereto contained or arising out of the
     said fat/unit or as the rights liabilities or the duties of the
     said parties hereunder the same shall be referred to
     Arbitrators of two persons one to be appointed by the
     Allottee/s or all other Allottee/s together and one by the
     Promoter. The Arbitrators so appointed shall appoint before
     entering the reference (a Chairman). The Provisions of the
     Arbitrations and Conciliation Act, 1996 shall apply to such
     reference. The language of the Arbitration shall be English
     and the place for Arbitration shall be Mumbai.”
8.   Learned Advocate for the Applicants, relying upon the
judgment of the Supreme Court in the case of Interplay between
Arbitration Agreements under the Arbitration and Conciliation Act,
1996 and the Indian Stamp Act, 1899, 2024 (6) SCC 1, submits
that the scope of enquiry under Section 11 is limited to examining
the existence of an arbitration agreement. According to him, at this
stage the Court is required to examine whether an arbitration
agreement exists between the parties. The other issues raised by
the Respondent can be considered by the Arbitral Tribunal. He
relied upon the judgment of the Supreme Court in Motilal Oswal
Financial Services Limited vs. Santosh Cordeiro & Another , 2026
INSC 5 : 2026 LiveLaw (SC) 32, and submitted that the enquiry at
the stage of appointment of an Arbitrator is concerned with the
existence of the arbitration agreement.

9.   Per   contra,   Mr.   Kothari,   learned      Advocate        for     the
Respondent, relies upon the judgment of this Court in Rashmi
Realty Builders Private Limited vs. Rahul Rajendrakumar Pagariya
& Others, 2024 SCC OnLine Bom 3871. He submits that a dispute




                                 6
                                       carap637-2026 with carbpl14014-2026-J.doc


between an individual allottee and a promoter is governed by the
provisions of the Real Estate Regulation and Development Act,
2016 and that such dispute is non-arbitrable. According to the
Respondent, therefore, the dispute raised by the Applicants cannot
be referred to arbitration. Mr. Kothari relies upon the judgment of
the Supreme Court in Arif Azim Company Ltd. vs. Aptech Limited ,
(2024) 5 SCC 313.

REASONS AND FINDINGS:

10.      I have considered the submissions made by Mr. Ranawat,
learned Advocate for the Applicants, and Mr. Kothari, learned
Advocate for the Respondent. I have considered the documents
relied upon by the Applicants, the Agreement for Sale dated 11
March 2022 and the arbitration clause contained in the said
agreement. I have considered the judgments relied upon by both
sides.

11.      The first submission of the Applicants is that there is a
arbitration agreement between the parties. Clause 86 of the
Agreement for Sale provides for referring the disputes between the
allottee and the promoter to arbitration. The existence of this
clause is not disputed by the Respondent. Therefore, according to
the Applicants, once the arbitration agreement is admitted, this
Court while exercising jurisdiction under Section 11 should
appoint an Arbitrator and should not go into the merits of the
dispute. There is substance in the submission of the Applicants that
at the stage of Section 11 the Court is not expected to conduct a
full trial between the parties. The Supreme Court in Interplay, has




                                  7
                                      carap637-2026 with carbpl14014-2026-J.doc


made it that the examination under Section 11 is limited.
Therefore, the Applicants are right to the extent that the questions
which require detailed evidence normally should not be decided at
this stage. However, the submission that this Court can look only at
existence of arbitration clause and nothing more cannot be
accepted in such broad manner. The law recognises that there can
be a limited examination as to whether the dispute itself is
arbitrable or not. This principle is referred to by the Supreme
Court in Arif Azim Company Ltd. The main enquiry is regarding
existence and validity of the arbitration agreement, but there can
be a limited enquiry where the dispute is claimed to be non-
arbitrable. This enquiry is only prima facie. The Court is not
required to conduct a detailed trial on this issue. Therefore, the
principle is that normally the Arbitral Tribunal can first consider
the questions relating to its own jurisdiction. But where from the
statute governing the dispute and from the nature of the relief
claimed, it is that the dispute is non-arbitrable, the Court is not
required to send the parties to arbitration only because there is an
arbitration clause in the contract.

12.   The Applicants have relied upon Motilal Oswal Financial
Services Limited. According to the Applicants, at the Section 11
stage the Court should mainly see whether an arbitration
agreement exists. There is no dispute with the general principle
that the Court should make only limited examination at this stage.
However, merely because an arbitration clause exists, it does not
answer the separate question whether the particular dispute can be
decided by a private Arbitral Tribunal. An arbitration clause cannot



                                  8
                                      carap637-2026 with carbpl14014-2026-J.doc


itself give jurisdiction where the law has kept a particular type of
dispute outside arbitration.

13.   The facts placed by the Applicants show what is the real
nature of the dispute. The Applicants claim to be allottees of Flat
No. 3903 in the project “RUPAREL SKYGREENS”. The Respondent
is the promoter of the said project. The parties entered into a
registered Agreement for Sale dated 11 March 2022. The
Applicants allege that possession was not given within the
promised period. They allege that the Respondent did not fulfil its
obligation under the subvention arrangement towards DHFL and
because of this the Applicants had to pay Rs. 12,99,557/- towards
interest. The Applicants have disputed the demand for the balance
consideration and the Termination Notice dated 3 January 2026.
Therefore, the dispute is not commercial dispute having no
connection with the real estate project. The whole dispute arises
from the relationship of allottee and promoter concerning the flat
booked by the Applicants in a registered real estate project. The
claims which arise from these allegations concern possession,
payment of consideration, termination of allotment, interest,
refund and the respective obligations of the promoter and allottee.
These matters are connected with the statutory field covered by
RERA.

14.   It is necessary to keep separate the arbitration agreement
and the dispute which is sought to be referred to arbitration.
Clause 86 may contain an arbitration agreement. But that by itself
does not mean that every dispute between the parties, whatever
may be its nature, has to be decided by an Arbitral Tribunal.



                                 9
                                       carap637-2026 with carbpl14014-2026-J.doc


Therefore, the question before me is not whether Clause 86 exists.
It does exist. The question is whether the particular dispute which
the Applicants want to take before the Arbitrator is capable of
being referred to arbitration.

15.   In this connection, the judgment of the this Court in Rashmi
Realty Builders Pvt. Ltd., requires consideration. In that case the
question before the Court was whether the jurisdiction of the Real
Estate Regulatory Authority under Section 20 of RERA is excluded
merely because the agreement between the promoter and allottee
contains an arbitration clause. The Court answered this question
by holding that the dispute between an individual allottee and
promoter which is covered by RERA is non-arbitrable. In
paragraph 50, the Court considered the nature of the rights
involved and observed:

      “50. As held by the Supreme Court, a Judgment in
      personam refers to a Judgment against a person as
      distinguished from a Judgment against a thing, right or
      status and a Judgment in rem refers to a Judgment that
      determines the status or condition of property which
      operates on the property itself. In the peculiar nature of
      disputes under RERA, although a dispute may be filed by an
      individual allottee against promoter, however the decision
      will affect the plot and building i.e. rights of other allottees
      and rights of association of allottees may be affected. Thus,
      the dispute covered by RERA cannot be termed as “a right in
      personam”.”
16.   This reasoning is based upon the scheme of RERA itself. The
Court noticed that a decision concerning one allottee can have
consequences upon the project, other allottees and the Association




                                 10
                                      carap637-2026 with carbpl14014-2026-J.doc


of Allottees. For this reason, such dispute cannot be treated as an
ordinary private dispute between only two persons.

17.   The Court considered the different powers created under
RERA. In paragraph 51, it observed:

      “51. The various provisions of RERA clearly shows that
      adjudication contemplated under RERA is as a matter of
      public policy and in the public interest. As noted herein
      above, it is the Chief Justice of the High Court who has been
      empowered inter alia to appoint the Authority and Appellate
      Authority under RERA. The Authority and Appellate
      Authority are empowered with vast powers for the purpose
      of safeguarding the interest of allottees/promoters/real
      estate agent. The decision with respect to one allottee is
      likely to affect other allottees having apartments in the same
      building or in the same Real Estate Project.”
18.   The importance of this reasoning is that RERA is not dealing
only with the private contractual rights of one allottee. Its scheme
regulates the real estate project as a whole. It creates statutory
rights, duties, and powers. Some of these rights and decisions can
affect other persons connected with the same project.

19.   The Court in Rashmi Realty considered the difference
between a private Arbitral Tribunal and a statutory authority. In
paragraph 52, it observed:

      “52. The Arbitral Tribunals are private fora chosen
      voluntarily by the parties to the dispute, to adjudicate their
      disputes in place of courts and tribunals which are public
      fora constituted under the laws of the country. Every civil or
      commercial dispute, either contractual or non-contractual,
      which can be decided by a court, is in principle capable of
      being adjudicated and resolved by arbitration unless the



                                 11
                                       carap637-2026 with carbpl14014-2026-J.doc


      jurisdiction of the Arbitral Tribunals is excluded either
      expressly or by necessary implication. Adjudication of certain
      categories of proceedings are reserved by the legislature
      exclusively for public fora as a matter of public policy.
      Certain other categories of cases, though not expressly
      reserved for adjudication by public fora (courts and
      tribunals), may by necessary implication stand excluded
      from the purview of private fora.”
20.   The Court considered Sections 8, 14, 15 and 17 of RERA and
the rights of the Association of Allottees. It noticed that many
decisions which may appear to concern only one allottee can have
consequences upon other allottees. The Court noticed that a
complaint under Section 31 can be filed by a voluntary consumer
association and that the Authority can take suo motu action under
Section 35. On this basis, the Court held that adjudication under
RERA is, by necessary implication, outside the jurisdiction of
private fora.

21.   The Court considered the doctrine of election. In paragraph
53 it held:

      “53. It is settled legal position that doctrine of election to
      select arbitration as a dispute resolution mechanism by
      mutual agreement is available only if the law accepts
      existence of arbitration as an alternative remedy and
      freedom to choose is available. There should not be any
      inconsistency or repugnancy between the provisions of the
      mandatory law and arbitration as an alternative. Conversely,
      and in a given case when there is repugnancy and
      inconsistency, the right of choice and election to arbitrate is
      denied.”




                                 12
                                       carap637-2026 with carbpl14014-2026-J.doc


22.   The Court then applied the four-fold test in Vidya Drolia. In
paragraph 56, it concluded:

      “56. On the touchstone of above parameters as set out by
      the Supreme Court for determining whether the subject
      matter of the dispute in an arbitration agreement is non-
      arbitrable, it is very that in the peculiar nature of the
      disputes covered by RERA, the decision of the same will not
      affect a particular allottee and promoter but will affect other
      allottees as well as Association of the Allottees of the
      particular Real Estate Project. The term “erga omnes effect”
      as referred in Vidya Drolia (supra) refers to the impact of a
      judicial decision that affects third parties. As discussed
      herein above in detail a particular allottee in Real Estate
      Project is included in the “Association of Allottees” as
      contemplated under RERA. Thus, by necessary implication
      the dispute between an individual allottee and promoter
      covered by RERA is non-arbitrable.”
23.   Finally, in paragraph 59, the Court recorded its conclusion in
terms:

      “59. Thus, on the touchstone of the well established
      parameters for determining the non-arbitrary nature of the
      dispute it has to be held that dispute which is covered under
      the RERA is non-arbitrable and therefore, the jurisdiction of
      Real Estate Regulatory Authority established under Section
      20 of the RERA is not ousted. Accordingly, the substantial
      question of law framed by this Court by order dated 24th
      July 2023 is answered.”
      The conclusion was again stated in paragraph 63:

      “63. In view of the above discussion following conclusions
      are recorded:—
      (i)   The dispute between the individual allottee and the




                                 13
                                       carap637-2026 with carbpl14014-2026-J.doc


      promoter or the dispute between the Association of the
      Allottees and the Promoter covered under Real Estate
      Regulation and Development Act, 2016 is non-arbitral in
      nature.
      (ii) The jurisdiction of Real Estate Regulatory Authority
      established under Section 20 of the Real Estate Regulation
      and Development Act, 2016 is not ousted, even if the
      agreement between the promoter and the allottee contains
      arbitration clause.
      (iii) In this particular case the Respondents are “allottees”
      in view of the definition of “Apartment” under Section 2(e)
      read with the definition of “Allottee” under Section 2(d) of
      Real Estate Regulation and Development Act, 2016 and the
      provisions of the Real Estate Regulation and Development
      Act, 2016 are applicable to the present case.”
24.   The facts of the present case are covered by the principle
stated in the above judgment. Here, the Applicants say that they
are allottees and the Respondent is the promoter. The subject
matter is a flat in a real estate project. The dispute arises from the
Agreement for Sale. The Applicants rely upon their rights under
the agreement regarding possession, payments, interest and
termination. Therefore, the relationship between the parties and
the subject matter of the dispute come within the RERA
framework.

25.   It is true that a different view was taken by the Delhi High
Court in Priyanka Tak Sood and Others v. Sunworld Residency Pvt.
Ltd. and Another, NEUTRAL CITATION NO: 2022/DHC/001768. In
that case the Court considered a dispute relating to refund of
money after cancellation of allotment and held that the claim
related to rights in personam. In paragraph 19, the Court


                                  14
                                        carap637-2026 with carbpl14014-2026-J.doc


observed:

      “…… arise from cancellation of allotment under the Flat
      Buyer Agreement and thus relate to rights in personam,
      which are amenable to arbitration. No issue of in rem has
      been put forth by either side. Moreover, in Vidya Drolia
      (supra), the Supreme Court has clarified that even -
      "Disputes relating to subordinate rights in personam arising
      from rights in rem are considered to be arbitrable." Besides,
      no function of the Authority under Section 34 of the RERA
      Act is impinged as well if such claims are referred to
      arbitration.”
26.   The Delhi High Court considered Sections 79, 88 and 89 of
RERA and held that the remedies under RERA were additional
remedies. In paragraph 30, the Court concluded:

      “30. From the foregoing, there is no doubt in the mind of
      this Court that, giving a purposive interpretation to Sections
      79, 88 and 89 of the RERA Act, there is no bar under the
      RERA Act from application of concurrent remedy under the
      A&C Act, and thus, there is no clash between the provisions
      of the RERA Act and the A&C Act, as the remedies available
      under the former are in addition to, and not in supersession
      of, the remedies available under the A&C Act.”
27.   The Delhi High Court referred to Section 18 of RERA and the
words “without prejudice to any other remedy available”. The
Court considered that these words show that the remedy under the
statute was not intended to exclude every other remedy. On the
facts before that Court, it held that the dispute was arbitrable.

28.   I have considered this judgment carefully. The reasoning in
the said judgment cannot be ignored only because it is a judgment
of another High Court. It takes a different view about the effect of



                                  15
                                        carap637-2026 with carbpl14014-2026-J.doc


Sections 79, 88 and 89 of RERA. The judgment relies upon the
judgments of the Supreme Court in Imperia Structures v. Anil
Patni, National Seeds Corporation and Fair Air Engineers .
However, the question before this Court is not whether the view
taken by the Delhi High Court is possible or not. The question is
which principle is to be followed by this Court when there is a later
judgment of this Court in Rashmi Realty which considered the
dispute between an individual allottee and promoter and held that
a RERA dispute is non-arbitrable.

29.   Rashmi Realty is a judgment of this Court on the same issue
which arises for consideration here. It has not been set aside. The
challenge to the said judgment before the Supreme Court was
dismissed on 1 September 2025 after the delay was condoned. The
Supreme Court recorded that it found “no good ground and reason
to interfere” with the judgment of the High Court and dismissed
the Special Leave Petition. The Supreme Court order was a short
order and did not lay down a ratio on arbitrability. However, the
judgment of this Court continues to operate and has not been
interfered with by the Supreme Court.

30.   The position is required to be understood in this way.
Priyanka Tak Sood supports the proposition that certain individual
claims of an allottee, claims for refund or other contractual reliefs,
may be treated as rights in personam. Rashmi Realty takes a wider
view of disputes covered by RERA and holds that the statutory
scheme can have consequences beyond the individual allottee and
promoter. For this Court, being a Court within the same High
Court, the judgment in Rashmi Realty has to be followed unless



                                 16
                                        carap637-2026 with carbpl14014-2026-J.doc


there is a later binding decision taking a different view.

31.   The Applicants have relied upon Section 18 of RERA and the
words “without prejudice to any other remedy available”. This
provision is relevant. But these words by cannot be read to mean
that every dispute between an allottee and promoter is arbitrable.
Section 18 preserves remedies available to the allottee. It does not
expressly say that every dispute falling under the RERA mechanism
must be decided by an Arbitral Tribunal.

32.   There is another important aspect. The dispute here is not
only about recovery of some admitted amount from the
Respondent. The Applicants dispute the demand for the balance
consideration. They say that the Respondent failed to give
possession within the agreed period. They rely upon the
subvention arrangement and say that the Respondent was required
to pay interest to DHFL. They challenge the Termination Notice
dated 3 January 2026. They say that they were ready and willing
to pay the balance amount after reconciliation of accounts. All
these issues are connected with the contractual relationship of
promoter and allottee under the Agreement for Sale concerning
the real estate project. At this stage, I am not deciding whether the
Applicants in fact paid Rs. 12,99,557/- in circumstances where the
Respondent was required to bear the same. I am not deciding
whether the Respondent was justified in                  demanding Rs.
74,24,200/-. These are disputed questions between the parties.
Similarly, I am not deciding whether the Respondent committed
default by not giving possession by 30 December 2022 or whether
the Applicants committed default in making payment. These



                                  17
                                         carap637-2026 with carbpl14014-2026-J.doc


questions may become relevant while deciding the substantive
rights of the parties. But they do not change the statutory nature of
the dispute.

33.   The submission of the Applicants that payment of Rs.
12,99,557/- to DHFL shows their readiness and willingness cannot
decide whether the dispute is arbitrable. At the highest, this fact
may support a contractual claim of the Applicants against the
Respondent. It does not change the relationship between the
parties from allottee and promoter into two ordinary commercial
parties outside RERA.

34.   In the same manner, the alleged failure of the Respondent to
hand over possession is a contractual allegation, but the relief
arising from such failure remains connected with the statutory
rights of an allottee against a promoter. Section 18 itself deals with
the consequence of failure of the promoter to complete the project
or give possession by the date mentioned in the agreement. Merely
because the same grievance can be put in contractual terms, it
does not take the dispute outside the statutory field of RERA. The
Applicants say that the dispute regarding reconciliation of accounts
and balance consideration is a private dispute between the parties.
I am unable to accept this submission. The amount demanded by
the Respondent is claimed as consideration under the Agreement
for   Sale.    The   Applicants   say   that    the     account       requires
reconciliation because of the Respondent's alleged obligations
under the subvention arrangement and delayed possession.
Therefore, the payment dispute cannot be separated from the
allotment and the real estate transaction.



                                   18
                                       carap637-2026 with carbpl14014-2026-J.doc


35.   Therefore, the Respondent is right in submitting that the real
question is not only whether Clause 86 exists, but whether the
dispute covered by Clause 86 can be decided through arbitration.
Clause 86 cannot be read from the mandatory provisions of RERA.
If the dispute is non-arbitrable under law, the agreement to
arbitrate cannot override that statutory position.

36.   The reliance placed by the Respondent on Rashmi Realty is
justified. The Respondent has relied upon Arif Azim. That
judgment is relevant because it shows that the Court making
reference is not completely without power to refuse a reference
where the dispute is non-arbitrable. The enquiry remains limited.
The Court is not required to decide the whole case. But where
from the agreement and the statute the legal nature of the dispute
is, there is no reason to send the parties to arbitration only for the
same question to be decided once again.

37.   The Applicants have relied upon the principle of kompetenz
kompetenz. Section 16 gives the Arbitral Tribunal power to decide
questions concerning its own jurisdiction. But this principle does
not mean that the Court must make a reference even where a
binding judgment of this Court has held that such category of
dispute is non-arbitrable. The principle of kompetenz kompetenz is
important, but it cannot give jurisdiction where the law itself has
excluded such jurisdiction.

38.   I am unable to accept that the issue can be left to the Arbitral
Tribunal because the Respondent can raise an objection under
Section 16. Such course may be proper where there is a real doubt




                                 19
                                       carap637-2026 with carbpl14014-2026-J.doc


regarding arbitrability. Here, the nature of the dispute and the
status of the parties are. The Applicants claim rights as allottees.
The Respondent is the promoter. The dispute arises from the
Agreement for Sale relating to the flat in the real estate project.
The objection of the Respondent is not a merely technical objection
raised for delaying the arbitration.

39.   The statutory provisions considered in Rashmi Realty require
to be seen. Section 79 of RERA excludes the jurisdiction of the
Civil Court in matters which the Authority, adjudicating officer or
Appellate Tribunal is empowered to determine. Section 88 says
that RERA is in addition to and not in derogation of other laws.
Section 89 gives RERA overriding effect where there is
inconsistency with another law. These provisions have to be read
together. Section 88 does not mean that every remedy under every
other law will remain available irrespective of the nature of the
dispute. Similarly, Section 89 does not mean that arbitration is
excluded only where there is an express conflict. The question is
whether the scheme of the statute, when read as a whole, shows
that the dispute is intended to be dealt with by the statutory
mechanism.

40.   Rashmi Realty answers this question in the affirmative in
relation to disputes between an allottee and promoter which are
covered by RERA. This conclusion is based upon the nature of the
statutory rights, involvement of other allottees, the Association of
Allottees, powers of the Authority and the overall public character
of the RERA mechanism.




                                  20
                                         carap637-2026 with carbpl14014-2026-J.doc


41.   The Applicants have relied upon the Delhi High Court
judgment because it treats the remedies under RERA and
arbitration as concurrent remedies. I have considered that view.
But the facts here are wider than a simple claim for refund arising
from cancellation of an allotment. The Applicants' case involves
alleged failure of the promoter relating to possession, payment of
consideration,       the   subvention   arrangement,         interest       and
termination of allotment. These matters are all connected with the
statutory relationship between the promoter and allottee.
Therefore, even on the reasoning of Priyanka Tak Sood, the nature
of the relief and the dispute would have to be examined and not
merely the existence of an arbitration clause.

42.   This Court cannot disregard the judgment in Rashmi Realty
merely because another High Court has taken a different view.
Judicial discipline requires that a judgment of this Court on the
same issue should be followed unless there is a later binding
decision taking a different position. No such subsequent Supreme
Court judgment has been shown to me which sets aside or
overrules the conclusion in Rashmi Realty. The Supreme Court, in
the proceedings arising from the said judgment, declined to
interfere with it.

43.   I find that the arbitration clause contained in Clause 86 does
exist. The Applicants are right in pointing out that the Respondent
was a party to the Agreement and has not disputed the existence
of the said clause. I find that the dispute raised by the Applicants is
a genuine dispute arising from the Agreement for Sale and is not a
sham dispute. The Applicants have raised grievances concerning



                                   21
                                       carap637-2026 with carbpl14014-2026-J.doc


possession,   payments,    the    subvention        arrangement           and
termination. These matters require adjudication in accordance
with law. But merely because there is a genuine dispute and there
is an arbitration agreement, it does not automatically follow that
the dispute can be referred to arbitration. The main question still
remains whether the subject matter of the dispute is arbitrable. For
the reasons already stated, I follow the judgment of this Court in
Rashmi Realty on this question.

44.   I accordingly hold that the disputes raised by the Applicants
against the Respondent, being disputes between an individual
allottee and promoter in respect of a real estate project and
covered by RERA, are non-arbitrable. The existence of Clause 86 in
the Agreement for Sale does not take away the jurisdiction of the
authorities constituted under RERA.

45.   On overall consideration of the submissions of both sides, I
find that the Applicants have established that there is an
arbitration agreement. However, they have not established that the
dispute sought to be referred is arbitrable. The objection raised by
the Respondent regarding non-arbitrability has substance. The
judgment in Rashmi Realty is applicable and continues to operate.
Therefore, the contrary view taken by the Delhi High Court in
Priyanka Tak Sood does not persuade me to take a different view.

46.   The present Application under Section 11 of the Arbitration
and Conciliation Act, 1996 cannot succeed. An Arbitrator cannot
be appointed for deciding the disputes raised in the present
Application, as the disputes are covered by RERA and are non-




                                  22
                                        carap637-2026 with carbpl14014-2026-J.doc


arbitrable.

47.   The Arbitration Application is accordingly dismissed.

48.   Since the dispute involved in the present matter is non-
arbitrable, the Arbitration Petition under Section 9 of the
Arbitration and Conciliation Act,1996 cannot be entertained. The
said Petition is, therefore, dismissed accordingly.

49.   However, it is made clear that the Applicants are at liberty to
take such appropriate remedy as may be available to them in law.
The contentions of both the parties on the merits of the matter are
kept open and the same may be raised before the appropriate
forum.

                                                (AMIT BORKAR, J.)




                                  23