SMT KAMLA SONKER AND 5 OTHERSversusM/S SANFRAN DEVELOPER PRIVATE LIMITED

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           FIRST APPEAL FROM ORDER No. - 1174 of 2026

Smt Kamla Sonker And 5 Others
                                                              .....Appellant(s)
                                   Versus
M/S Sanfran Developer Private Limited
                                                            .....Respondent(s)

Counsel for Appellant(s)                            :     Ami Tandon
Counsel for Respondent(s)                           :

Court No. - 39
                     HON'BLE ABDUL SHAHID, J.

1. Heard learned counsel for the appellants/defendants.

2. The present appeal has been filed by the appellants/defendants against the
order dated 31.03.2026 passed by the Court of learned Civil Judge (Senior
Division), District Jhansi, in Original Suit No. 385 of 2025 (M/s Sanfran
Developer Pvt. Ltd. Vs. Smt. Kamla Sonker and others).

3. Learned counsel for the appellants/defendants has submitted that the
impugned order dated 31.03.2026 has been passed by ignoring the existing
arbitration agreement executed between the parties, which forms part of the
consortium agreement dated 01.10.2015. According to him, this is the
primary bone of contention in the present proceedings. He has further
submitted that the plaintiff/respondent is virtually seeking specific
performance through the suit.

4. Learned counsel for the appellants has further submitted that the learned
trial court has ignored Clause 5.5 of the agreement dated 01.10.2015,
wherein the mechanism for settlement of disputes has been provided, which
essentially constitutes an arbitration clause. He has submitted that the said
clause clearly states that all disputes arising out of the consortium agreement
dated 01.10.2015 shall first be settled amicably and, in case of failure to
amicably resolve the dispute, the same shall be referred to an Arbitrator to be
decided between the parties, whose decision shall be final and binding upon
them.

5. Learned counsel for the appellants/defendants has further submitted that
the agreement dated 01.10.2015 was executed in contravention of the
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provisions of Section 98 of the U.P. Revenue Code, 2006 (corresponding to
Section 157-A of the U.P. Zamindari Abolition and Land Reforms Act,
1950), which mandates that no bhumidhar belonging to the Scheduled Caste
category shall have the right to transfer, by way of sale, gift, mortgage, or
lease, any land to a person not belonging to the Scheduled Caste category
except with the previous permission of the Collector in writing. Hence, in
the absence of such permission, the said agreement is void under Section
104 of the U.P. Revenue Code, 2006 and is subject to the consequences
provided under Section 105 thereof.

6. Learned counsel for the appellants/defendants has further submitted that
the plaintiff/respondent has an efficacious and alternative remedy available
and, therefore, the suit is barred under Section 41(h) of the Specific Relief
Act, 1963. He has further submitted that the learned trial court ignored the
fact that the suit was not maintainable, firstly, because there exists an
arbitration clause in the agreement and, secondly, because the consortium
agreement dated 01.10.2015 had already been terminated by the
defendants/appellants through the registered declaratory deed dated
01.06.2023.

7. Learned counsel for the appellants/defendants has relied upon the
judgment passed by this Court in Smt. Omwati Vs. Collector, District
Pilibhit and others on 10.11.2022, 2022:AHC:187089. Paragraph 11 of the
said judgment is quoted hereinbelow:

     "11. Section 98 of the Code mandates that no bhumidhar belonging to a
     scheduled caste shall have the right to transfer, by way of sale, gift,
     mortgage or lease any land to a person not belonging to a scheduled
     caste except with the previous permission of the Collector in writing. The
     previous permission of the Collector is therefore, a condition precedent
     before any bhumidhar of scheduled caste can seek to transfer his land to
     a person not belonging to a scheduled caste. In the absence of such
     permission having been obtained, the transfer would be rendered void as
     per Section 104, and would be subject to the consequences provided
     under Section 105."

8. Learned counsel for the appellant/defendant has further relied on the
judgment passed by the High Court of Delhi At New Delhi in Sharad P.
Jagtiani Versus M/S. Edel Weiss Securities Ltd., 2014:DHC:3754-D and
has relied on paras 14, 15, 16, 17 and 18 which are reproduced below:
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     "14. We simply need to highlight the phrase 'not later than when
     submitting his first statement on the substance of the dispute" in sub-
     Section (1) of Section 8. The requirement is to bring to the notice of the
     Court at a point not later than when submitting the first statement on the
     substance of the dispute that there exists an arbitration clause between
     the parties and that the subject matter of the action brought before the
     Court by way of the suit falls within the ambit of the arbitration clause.
     15. Section 8 does not specify the manner in which the party has to submit
     its first statement on the substance of the dispute, and normally with
     respect to a suit, the first statement on the substance of the dispute by the
     defendant would be the written statement. Thus, if in the written statement
     filed it is brought to the notice of the Court that there exists an arbitration
     agreement between the parties which embraces the subject matter of the
     suit there would complete compliance with the mandate of the law and the
     Court would be obliged to refer the parties to arbitration if the plea in the
     written statement is made good.
     16. On the facts of the instant case, it may be true that in the written
     statement filed a specific prayer has not been made to refer the parties to
     arbitration, but we have highlighted hereinabove that in the written
     statement filed a preliminary objection has been taken that the suit is
     barred in view of the arbitration agreement. The written statement filed is
     with strings attached by challenging the maintainability of the suit in view
     of the arbitration clause and therefore in such circumstance the said
     objection taken by Edelweiss contained in the written statement could be
     treated as an application under section 8 of the Arbitration and
     Conciliation Act, 1996.
     17. It is trite that it is the substance of a matter contained in a document
     which matters and not the form thereof.
     18. For three reasons, the appeal has to be dismissed. Firstly the
     arbitration agreement in the instant case being the result of a statute,
     there being no estoppel against the statute, required by law to be held;
     secondly the view taken by us hereinabove relating to the interpretation of
     Section 8 of the Arbitration and Conciliation Act, 1996; and
     thirdly Section 89 of the Code of Civil Procedure, 1908 which empowers
     a Court to refer the parties to arbitration if in the opinion of the Court it
     appears that there exists element of a settlement which may be acceptable
     to the parties. There cannot be a better case where such element exists
     than a case where the parties themselves have agreed for referring the
     matter to arbitration at the time of entering into the contract itself."

9. Learned counsel for the appellant has further relied on the judgment
passed by High Court of Jammu and Kashmir and Ladakh at Jammu in
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S. Charanjeet Singh Versus UT of J & K and others, dated 13.03.2025
(RFA No. 52 of 2023, CM No. 7861/2023, 654/2024, CAV No. 1940/2023)
 and relied on para 10 which is reproduced below:

     "10. In terms of Section 8 of the Act of 1996, a judicial authority before
     which an action is brought in a matter, which is the subject of an
     arbitration agreement shall refer the parties to arbitration, if a party to
     the arbitration agreement or any person claiming through or under him
     so applies not later than the date of submitting his first statement on the
     substance of the dispute, then, notwithstanding any judgment, decree or
     order of the Supreme Court or any court, refer the parties to arbitration
     unless it finds that prima facie no valid arbitration agreement exists. Sub-
     section (2) of Section 8 of the Act of 1996 provides that the application
     referred to in sub-section (1) shall not be entertained unless it is
     accompanied by the original arbitration agreement or a duly certified
     copy thereof."

10. Learned counsel for the appellants has submitted that the
plaintiff/respondent filed Original Suit No. 385 of 2025 seeking relief that
the registered declaratory deed dated 01.06.2023 be declared void ab initio.
The plaintiff/respondent has further sought a relief of mandatory injunction
directing the appellants/defendants to execute the registered agreement dated
01.10.2015 between the parties.

11. It is pertinent to mention here that, despite having knowledge since the
very inception that the appellants/defendants belonged to the Scheduled
Caste community, the plaintiff/respondent entered into the bilateral
registered agreement dated 01.10.2015 and was allegedly delivered
possession after payment of consideration. It is also alleged that the
plaintiff/respondent concealed the fact that litigation relating to the property
was pending, which caused delay in execution of the agreement. However,
the said bilateral registered agreement dated 01.10.2015 is still in existence.
The mala fide conduct of the appellants/defendants also appears evident
inasmuch as, in collusion with the other defendants and without informing or
impleading the plaintiff/respondent, they executed the unilateral registered
declaratory deed dated 01.06.2023 purporting to cancel the bilateral
registered agreement dated 01.10.2015.

12. Since the registered agreement dated 01.10.2015 is a bilateral agreement
executed between the appellants/defendants and the plaintiff/respondent, the
same could only have been modified, set aside, or cancelled either by a
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competent court of law or through a registered document executed after
providing an opportunity of hearing to the plaintiff/respondent and
impleading the plaintiff/respondent in such proceedings. The same has
admittedly not been done by the appellants/defendants. Hence, mala fide
concealment and bad intention on the part of the appellants/defendants are
manifestly clear.

13. So far as the reliance placed by the appellants/defendants upon Clause
5.5 of the consortium agreement is concerned, it is noteworthy that the
appellants themselves have stated in paragraph 'B' of the memo of appeal
that all disputes arising out of the consortium agreement dated 01.10.2015
shall first be settled amicably and, in the event of failure to amicably resolve
the dispute, the same shall be referred to an Arbitrator whose decision shall
be final and binding upon the parties. However, the appellants/defendants
themselves executed the declaratory deed dated 01.06.2023, which is in clear
violation of the registered agreement dated 01.10.2015 and its terms and
conditions. The agreement specifically contemplated amicable settlement of
disputes and, upon failure thereof, reference to arbitration. None of these
conditions were followed or complied with by the appellants/defendants
themselves.

14. The learned trial court, while deciding Application 6-C under Order
XXXIX Rules 1 and 2 C.P.C., specifically held that the elders of defendant
nos. 1 and 2, with the consent of defendant nos. 3, 4, 5 and 6, in the presence
of witnesses, executed the registered declaratory deed dated 19.05.2023 for
cancellation of the registered agreement dated 01.10.2015 and that no
information regarding the same was provided to Santosh Kumar Mishra,
Director of the plaintiff-firm.

15. The defendants themselves have stated that information regarding the
execution and registration of the declaratory deed dated 19.05.2023 was sent
to the plaintiff only after the cancellation and registration of the unilateral
deed. Hence, the trial court specifically held that, at the time of execution of
the declaratory deed dated 19.05.2023, no prior information had been
provided to the plaintiff-firm.

16. It is the case of the plaintiff that possession over the land in question had
already been delivered to him and he had also constructed a boundary wall
over the said premises on the basis of the registered agreement dated
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                                    01.10.2015.

                                    17. In view of the aforesaid facts, reasons, circumstances, and provisions of
                                    law, there is neither any illegality nor perversity in the impugned order dated
                                    31.03.2026. The prima facie case, balance of convenience, and irreparable
                                    loss and injury lie exclusively in favour of the plaintiff/respondent.

                                    18. Accordingly, the present First Appeal From Order lacks merit and is
                                    liable to be dismissed in limine. It is, accordingly, dismissed.

                                    May 8, 2026
                                    K.K. Maurya
                                                                                               (Abdul Shahid,J.)




Digitally signed by :-
KAMLESH KUMAR MAURYA
High Court of Judicature at Allahabad