Kundanmal Kothari vs Goregaon Jai Bhuvan Co-Operative Housing Society Ltd. Through Hon. Secretary / Managing Committee
- Court
- Bombay High Court
CNR No : HCBM020267002023
2026:BHC-OS:22948
arbapl26917-2023-J.doc
Sayali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION (L) NO. 26917 OF 2023
Kundanmal Kothari Since Deced
through His legal heirs
Kanchanben Kundanmal Kothari
… Applicant
SAYALI
DEEPAK
UPASANI
Digitally signed
by SAYALI
DEEPAK
UPASANI
Date: 2026.10.23
12:30:20 +0530
Vs.
Goregaon Jai Bhuvan Co-operative
Housing Society Ltd and Others ... Respondents
Mr.Anand Mohan with Ms. Priyanka Prabhakar i/b
ANM Global, for Petitioner.
Mr. Piyush Shah with Mr. Dishang Shah, & Mr. Deep
Madnani, for Respondent Nos. 2 to 4.
CORAM : AMIT BORKAR, J.
RESERVED ON : OCTOBER 21, 2026.
PRONOUNCED ON : OCTOBER 23, 2026
JUDGMENT:
1. The present Application is filed under Section 11 of the
Arbitration and Conciliation Act, 1996. By this Application, the
Applicant seeks appointment of an independent Arbitrator to
decide the disputes between the parties. The Applicant requests
that the seat of arbitration be Mumbai and that the costs of
arbitration be shared equally by the parties. The request is based
on Clause 46 of the Agreement for Permanent Alternate
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Accommodation dated 21 June 2014, read with paragraphs 61 and
63 of the Supplementary Agreement dated 28 December 2015.
2. The Applicant is a member of Respondent No. 1 Society and
holds five shares bearing distinctive Nos. 81 to 85 under Share
Certificate No. 17 issued by the Society in respect of Flat No. 17.
Following the redevelopment of the Society's property, the
Applicant claims entitlement to new Flat No. 803, having a carpet
area of 531 square feet, equivalent to 49.33 square metres, on the
8th and 9th Floors of the proposed new building. The Applicant
claims an open terrace admeasuring 318 square feet, equivalent to
29.54 square metres. The new building is proposed to be
constructed on Plot Nos. 28 and 29, Survey No. 74, Hissa No. 2,
bearing City Survey Nos. 236 and 236/1 to 10, at Village Pahadi
Goregaon (East), Taluka Borivali, Mumbai Suburban District.
According to the Applicant, these premises, including the terrace,
were allotted to him on an ownership basis under the Agreement
for Permanent Alternate Accommodation. On 25 March 2014,
Respondent No. 1 Society and its members agreed to undertake
redevelopment of the property and entered into a Development
Agreement with Prakrit Developers Pvt. Ltd. Thereafter, on 21
June 2014, Prakrit Developers Pvt. Ltd. and the Applicant executed
and registered an Agreement for Permanent Alternate
Accommodation. A Deed of Rectification was registered on 14
August 2014. Subsequently, on 28 December 2015, Respondent
Nos. 2 to 4 came into the picture as the developers under the
Supplementary Agreement. According to the Applicant, paragraph
61 of the Supplementary Agreement required Respondent Nos. 2
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to 4 to continue paying monthly rent to the Society members, with
an increase of 10% from May 2016 until possession of the new
premises was handed over. The Applicant alleges that Respondent
Nos. 2 to 4 failed to comply with this obligation.
3. According to the Applicant, as on 31 May 2023, Respondent
Nos. 2 to 4 were liable to pay Rs. 25,98,166/-. Out of this amount,
they paid Rs. 12,06,308/-, leaving a balance of Rs. 13,91,858/-
payable to the Applicant, apart from interest and further amounts
accruing from 1 June 2023. The Applicant further states that, as on
1 August 2023, an amount of Rs. 73,05,937/-, comprising rent,
double rent and interest, was due and payable by Respondent Nos.
2 to 4. On 26 June 2023, the Applicant invoked the arbitration
clause in respect of the alleged non-payment of rent and the
dispute concerning the terrace area. The Applicant proposed the
names of two Arbitrators. However, no reply was received to the
notice. The Applicant has approached this Court seeking
appointment of a Sole Arbitrator to resolve the disputes between
the parties.
4. Mr. Anand Mohan, learned Advocate appearing for the
Applicant, relied upon Clause 46 of the registered Agreement for
Permanent Alternate Accommodation dated 21 June 2014,
hereinafter referred to as the “PAAA”, which was originally
executed between the Applicant and Prakrit Developers Pvt. Ltd.,
the original developer. The principal objection raised by
Respondent Nos. 2 to 4 is that they did not sign the PAAA.
According to the Applicant, however, there is no dispute about the
existence of an arbitration clause in the PAAA or in the
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Development Agreement. Mr. Mohan submitted that Respondent
Nos. 2 to 4 are bound by the arbitration agreement for three
independent reasons. First, Respondent No. 2 claims through
and/or under the original developer. Second, the arbitration
agreement in the Development Agreement stands incorporated by
reference into the Supplementary Development Agreement,
hereinafter referred to as the “SDA”, which Respondent No. 2
signed. Third, Respondent Nos. 2 to 4 are, in substance, parties to
the arbitration agreement. He further submitted that none of the
objections raised by the respondents provides a valid reason to
refuse the appointment of an Arbitrator.
5. Mr. Mohan submitted that Respondent No. 2 is the successor
and transferee of the original developer and claims through and/or
under it. He relied upon the provisions of the SDA, under which
the redevelopment rights “shall stand assigned and transferred to,
unto and in favour of the said Developers herein”. The SDA further
provides that Prakrit “shall cease to hold any re-development
rights or any other rights”, and that Respondent No. 2 “shall be
placed in the shoes of the said Confirming Party herein (Previous
Developers)” and shall be “answerable and held accountable only
vis-à-vis Permanent Alternative Accommodation Agreement/s”.
According to the Applicant, these terms show that Respondent No.
2 took the place of the original developer and received the benefits
under the SDA read with the PAAA, including the redevelopment
rights and possession of the Society's property. Having accepted
these benefits, Respondent No. 2 cannot now refuse to comply
with the arbitration agreement connected with those rights and
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obligations. Mr. Mohan relied upon the principle that a successor
to a signatory is bound by both the benefits and the obligations of
the arbitration clause when the successor steps into the position of
the original party. In support of this submission, he relied upon
paragraph 135 of the judgment in Cox and Kings Ltd. v. SAP India
(P) Ltd., (2024) 4 SCC 1. He submitted that the same provisions
support his argument that the arbitration clause was incorporated
by reference into the SDA.
6. Mr. Mohan next relied upon the decision of the Supreme
Court in Hirani Developers v. Nehru Nagar Samruddhi CHS Ltd.,
2026 SCC OnLine SC 854. He submitted that the Supreme Court,
in that case, reversed the decision of this Court reported in 2025
SCC OnLine Bom 6499, where a similar redevelopment
arrangement was involved. In that arrangement, the Development
Agreement contained an arbitration clause, while the subsequent
Agreements for Permanent Alternate Accommodation executed
with individual members referred to the Development Agreement.
The Supreme Court considered the principles laid down in M.R.
Engineers and Contractors (P) Ltd. v. Som Datt Builders Ltd.,
(2009) 7 SCC 696, paragraph 9, and applied the decision in NBCC
(India) Ltd. v. Zillion Infraprojects (P) Ltd., (2024) 7 SCC 174,
paragraph 10. According to Mr. Mohan, these decisions support the
Applicant's case that the arbitration clause in the Development
Agreement became part of the arrangement with the Applicant.
7. On the basis of these decisions, Mr. Mohan submitted that an
arbitration clause contained in one document may become part of
another contract when certain conditions are satisfied. The
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contract must refer to the other document, and the reference must
show a clear intention to incorporate its terms. The arbitration
clause must be capable of applying to the disputes arising under
the contract and must not conflict with any of its provisions.
According to the Applicant, all these conditions are satisfied in the
present case. He submitted that the arbitration clause became part
of the arrangement through three separate routes, each of which
independently supports the request for appointment of an
Arbitrator.
8. The first route relied upon by Mr. Mohan is that the
arbitration clause in the Development Agreement became part of
the PAAA executed with the Applicant. He submitted that the facts
are similar to those considered by the Supreme Court in Hirani
Developers . In paragraph 5 of that decision, the relevant clause
stated: “It is clarified that all the terms and conditions of the
development agreement dated 4 July 2012 shall be construed to
form a part of these presents and all the clauses of the same shall
be binding on the parties hereto.” Mr. Mohan then referred to
Clause 1 of the PAAA in the present case, which states: “It is
declared, confirmed between all the parties that the Development
Agreement executed between the Developer, and Society being
party of the first part and third part is registered under No. 07189-
2012 with the Sub-Registrar of Mumbai Suburban Registration
District are valid and subsisting and binding upon all the parties
and that all the recitals and terms and conditions as specified in
the Development Agreement shall form an integral part of this
agreement as if they are inspected herein.” According to the
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Applicant, the member, the Developer, and Respondent No. 1
Society signed the PAAA. Clause 1 makes the Development
Agreement an integral part of the PAAA. Therefore, Mr. Mohan
submitted that Clause 28.1 of the Development Agreement, which
contains the arbitration clause, forms part of the PAAA, in addition
to Clause 46.
9. The second and third routes relied upon by Mr. Mohan arise
from the provisions of the SDA signed by Respondent No. 2.
According to him, the SDA adopts the Development Agreement
and incorporates the PAAA into the arrangement. It provides that
the expression “the Developers” includes Respondent No. 2's
“present or future partners”. In particular, the SDA provides that
Respondent No. 2 “shall stand substituted as the Developers under
the said Registered Agreement for Re-development dated 27-08-
2012 and the Developers herein shall hereafter comply with the
obligations as recorded therein”. It further provides that
Respondent No. 2 “shall stand substituted as the Developers in the
Agreement/s for Permanent Alternate Accommodation executed
and Registered with the respective Flat and Shop
Owners/Members of the said Society”. The SDA states that the
recitals and operative provisions of the Development Agreement
“shall stand modified and duly confirmed and adopted”, and that
Respondent No. 2 stands “Substituted as the Developers in place
and stead of the said Developers”. Further, Respondent No. 2 is
required to “strictly abide by all the commercial terms” of the
PAAA, while the “carpet area, location, position and amenities” are
to be as provided in the PAAA. Finally, the SDA states that the
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“fundamental clauses and terms” of the PAAAs “executed with the
Existing Members” “shall be an integral part of this Supplementary
Development Agreement”.
10. Mr. Mohan submitted that the requirements explained in
Hirani Developers are satisfied by these provisions. First, the
reference to the other agreements is specific because the SDA
identifies the Development Agreement by its date and registration
number and refers to the PAAAs executed and registered with the
Society members. Second, the expressions “Integral part”, “stand
substituted”, “placed in the shoes” and “strictly abide” show an
intention to adopt the terms of the earlier agreements. He
submitted that these expressions are consistent with the principles
discussed in paragraph 17 of M.R. Engineers and approved in
paragraph 11 of Hirani Developers. Third, the present disputes
concerning carpet area, terrace and transit rent for Flat No. 803
are, according to the Applicant, matters connected with the PAAA
and are covered by Clause (t) and Clause 57. Fourth, the SDA does
not exclude arbitration. Mr. Mohan further submitted that Clause
69 of the SDA does not apply to the Applicant's claims, for the
reasons stated in paragraph 18 below.
11. Mr. Mohan relied upon the principle that connected
agreements forming part of one transaction should be read
together for deciding disputes arising from that transaction. In
support, he referred to National Skill Development Corporation v.
Surya Wires (P) Ltd., 2026 SCC OnLine SC 1798; 2026 INSC 977.
According to his submission, the Supreme Court held in paragraph
26 that agreements which operate together as parts of one
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composite transaction cannot be separated from one another for
the purpose of resolving disputes.
12. Applying that principle to the present case, Mr. Mohan
submitted that the Development Agreement, the PAAA and the
SDA form parts of one redevelopment arrangement concerning the
same property and the same Society members. The PAAA makes
the Development Agreement an integral part of itself, while the
SDA adopts the Development Agreement and makes the PAAAs an
integral part of the supplementary arrangement. According to the
Applicant, Respondent No. 2 accepted the obligations concerning
rent, carpet area and location under the PAAA. It cannot rely upon
the PAAA for those obligations while denying the arbitration
mechanism connected with the same arrangement. In support of
his argument that Respondent Nos. 2 to 4 are, in substance, parties
to the arbitration agreement, Mr. Mohan relied upon the
Constitution Bench decision in Cox and Kings Ltd. . He referred to
Hemant D. Shah HUF v. Chittaranjan D. Shah HUF, 2026 SCC
OnLine SC 2125; 2026 INSC 1111.
13. Mr. Mohan further relied upon the decision of this Court in
The Zoroastrian Radih Society v. Behramshah Shroff Building No.
3 (Damavand) CHS Ltd., Arbitration Application No. 427 of 2026,
decided on 1 October 2026. He submitted that, after execution of
the PAAA, the SDA was entered into and Respondent No. 2 took
the place of the original developer. According to him, the
obligations for which the Applicant seeks relief arise under the
PAAA, and Respondent No. 2 is the entity which subsequently
undertook to perform those obligations.
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14. Mr. Mohan then addressed the objections raised by
Respondent Nos. 2 to 4. These objections are that they are not
parties to the PAAA, that the Applicant's complaint before
MahaRERA prevents him from filing the present application, that
the Applicant is not entitled to the terrace, and that transit rent
was paid until August 2022. According to Mr. Mohan, none of
these objections justifies refusing the appointment of an Arbitrator.
He submitted that the objection regarding the absence of a direct
signature on the PAAA is answered by the provisions and decisions
discussed above. As regards the MahaRERA complaint, he stated
that the proceedings were disclosed in the application and that the
notice invoking arbitration was issued without prejudice to those
proceedings. According to him, no forum has decided the disputes
raised in the present application, and the reliefs sought are not the
same. He relied upon paragraphs 10 to 14 of The Zoroastrian
Radih Society to submit that the mere pendency of statutory
proceedings does not prevent a reference to arbitration. As regards
the terrace and rent disputes, he submitted that these are matters
concerning the merits of the claims and should be decided by the
Arbitral Tribunal. He pointed out that Respondent Nos. 2 to 4
admit that the approved plans do not include the terrace and that
Respondent No. 2 “regularly paid the monthly compensation/rent
to the Applicant” until 23 August 2022. According to the
Applicant, the latter admission shows that Respondent No. 2 had
acted upon the obligation to pay rent under the PAAA. Mr. Mohan
submitted that these disputed issues should be left for
consideration by the Arbitral Tribunal, as recognised in The
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Zoroastrian Radih Society.
15. Respondent Nos. 2 to 4 contend that the SDA does not
contain an arbitration clause and instead confers jurisdiction upon
the Courts at Mumbai under Clause 69. The clause reads as
follows:
“In case of any dispute or differences which may arise
between the parties hereto with regard to the right and
obligation of parties herein and/or the interpretation of any
of the clauses herein contained then the Court/s in Mumbai
alone shall have jurisdiction to entertain and try such
disputes.”
16. In reply, Mr. Mohan submitted that Clause 69 is confined to
disputes “between the parties hereto”, namely Respondent No. 1
Society, Prakrit and Respondent No. 2. The Applicant is not a party
to the SDA. His claims arise under the PAAA, which contains
Clause 46 providing for arbitration. According to the Applicant,
Clause 69 does not govern the disputes raised by him. Mr. Mohan
further submitted that Respondent Nos. 2 to 4 rely upon the SDA
to contend that Respondent No. 2 became the new developer and
assumed the obligations of the original developer. The same SDA
substitutes Respondent No. 2 in the PAAA and makes the PAAA an
integral part of the arrangement. According to the Applicant, the
respondents cannot rely upon the SDA to accept its obligations
while refusing to apply its terms for resolving disputes. In this
connection, he relied upon paragraph 28 of National Skill
Development Corporation , referred to above. He submitted that a
clause conferring jurisdiction upon the Courts at Mumbai does not
exclude arbitration seat at Mumbai. This Court would exercise
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jurisdiction under Section 11 of the Arbitration and Conciliation
Act, 1996, and supervisory jurisdiction over the arbitration.
Therefore, according to the Applicant, there is no conflict between
Clause 69 and the arbitration clause relied upon by him.
17. Mr. Mohan relied upon certain statements made by
Respondent Nos. 2 to 4 in support of the Applicant's case. He
pointed out that the respondents themselves rely upon the
Development Agreement, which contains the arbitration clause,
and describe it as “the principal document, by virtue of which, the
Respondent No. 1 Society went into re-development”. They
contend that the Applicant is bound by the terms of that
agreement. According to the Applicant, the respondents cannot
deny the relevance of the same arrangement when the question
arises as to the applicability of its arbitration clause. Mr. Mohan
further pointed out that Respondent Nos. 2 to 4 admit that
Respondent No. 2 regularly paid transit rent to the Applicant until
23 August 2022 and remains ready to pay it.
18. Mr. Piyush Shah, learned Advocate appearing for Respondent
Nos. 2 to 4, opposed the application. He submitted that the PAAA
dated 21 June 2014, produced as Exhibit A to the application, was
executed between the Applicant and the erstwhile developer,
Prakrit Developers. Respondent Nos. 2 to 4 were not parties to that
agreement and were not privy to it. On this basis, he contended
that the arbitration clause contained in Clause 46 of the PAAA
cannot be enforced against them. Mr. Shah further submitted that
the Applicant had filed Complaint No. CC006000000303322
against Respondent Nos. 2 to 4 before the MahaRERA Authority.
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According to him, the Applicant is now barred by law from filing
the present application because, as alleged, he is seeking the same
reliefs that were sought in the MahaRERA complaint. He stated
that the respondents seek permission to refer to and rely upon the
papers and proceedings in the MahaRERA complaint at the time of
hearing of the present application.
19. Mr. Shah, without prejudice to the other objections raised by
the respondents, denied the statements made in paragraph 4.1 of
the application and called upon the Applicant to prove all those
statements which had not been admitted. He alleged that the
Applicant had deliberately failed to produce an important
document, namely the registered Agreement for Redevelopment
dated 27 August 2012, registered on 28 August 2012 under Serial
No. BDR-11-07189-2012. That agreement was executed between
Respondent No. 1 Society and the erstwhile developers, Prakrit
Developers, and, according to the respondents, was the principal
document under which the Society's property was taken up for
redevelopment. Mr. Shah relied upon Clause 7, titled “Area
Benefits”, and Clause 7.1, appearing at internal page 19 of the said
Agreement for Redevelopment. According to him, these clauses
provide that the existing members of the Society, including the
Applicant, would receive new premises having the same carpet
area as the area they occupied earlier. On this basis, he contended
that the Applicant is not entitled to claim an additional terrace
area of 318 square feet or any separate car parking space. He
described the Applicant's claims in this regard as incorrect. Clause
7.1 of the Agreement for Redevelopment reads as follows:
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“7.1 The developers under the terms of this agreement have
agreed to grant to the presently existing member/s new
flat/commercial units in the proposed building/s to be
constructed on the said plot which shall have the presently
existing carpet area occupied by the member as per joint
measurement plan including dry balcony, flower bed, niches
as per the approval of the MCGM. The said New
flat/commercial unit shall be made available to each of the
presently existing member/s free of cost and shall have the
benefit of areas as mentioned aforesaid (hereinafter referred
to as the said ‘PERMANENT ALTERNATE
ACCOMMODATION’) in accordance with the details of the
areas mentioned in the List of members furnished by the
society as per its present records and duly verified by the
Developers. The permanent alternate accommodation to be
granted hereunder shall have constructed carpet area
(internal wall to wall), viz., the presently existing carpet area
of the flat/s/commercial units agreed to be granted
hereunder including dry balcony, flower bed, niches. The
commercial units shall have 14 ft height from unfinished
floor to slab on current existing area as per the approval
from the MCGM, the details thereof are mentioned in the
copy of the area statement annexed hereto (a copy of the
area statement is annexed hereto and marked as Annexure
‘VII’).”
20. Mr. Shah stated that a copy of the registered Agreement for
Redevelopment dated 27 August 2012, registered under Serial No.
BDR-11-07189-2012 on 28 August 2012 and executed between
Respondent No. 1 Society and Prakrit Developers, was annexed to
the respondents' reply and marked as Exhibit A.
21. Mr. Shah further submitted that the registered SDA dated 28
December 2015, executed between Respondent No. 1 Society and
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Respondent No. 2 as the new developer and produced as Exhibit C
to the application, contains no arbitration clause. He relied upon
Clause 69 of the SDA, appearing at internal page 81, which
provides as follows:
“69. In case of any dispute or differences which may arise
between the parties hereto with regard to the right and
obligation of parties herein and/or the interpretation of any
of the clauses herein contained then the Court/s in Mumbai
alone shall have jurisdiction to entertain and try such
dispute/s.”
22. According to Mr. Shah, since the SDA contains no arbitration
clause and instead provides for the jurisdiction of the Courts at
Mumbai, the Applicant cannot invoke arbitration against
Respondent Nos. 2 to 4 on the basis of Clause 46 of the PAAA. He
submitted that the Applicant's remedy, if any, is to approach the
Civil Court. On this ground, he contended that the present
application is not maintainable and deserves to be dismissed with
costs.
REASONS AND FINDINGS
Whether the arbitration agreement applies to the substituted
developer:
23. The first question concerns the relationship between the
Applicant, the original developer and Respondent Nos. 2 to 4. It is
not disputed that Respondent Nos. 2 to 4 did not sign the original
PAAA. A person cannot be made responsible under an arbitration
agreement only because another person signed it or because both
persons are connected with the same business. However, the
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absence of a signature does not always conclude the matter. The
position may be different if the person later enters into an
agreement accepting the earlier arrangement or is substituted in
place of the original party. In this connection, the provisions of the
SDA are important. The Applicant relies upon the provision stating
that the redevelopment rights “shall stand assigned and
transferred to, unto and in favour of the said Developers herein”.
The SDA states that Prakrit “shall cease to hold any re-
development rights or any other rights”. It further provides that
Respondent No. 2 “shall be placed in the shoes of the said
Confirming Party herein (Previous Developers)” and shall be
“answerable and held accountable only vis-à-vis Permanent
Alternative Accommodation Agreement/s”. These words show
that the intention was to put Respondent No. 2 in the place of the
earlier developer and give it the obligations connected with the
redevelopment agreements. The SDA further states that
Respondent No. 2 “shall stand substituted as the Developers under
the said Registered Agreement for Re-development dated 27-08-
2012 and the Developers herein shall hereafter comply with the
obligations as recorded therein”. It states that Respondent No. 2
“shall stand substituted as the Developers in the Agreement/s for
Permanent Alternate Accommodation executed and Registered
with the respective Flat and Shop Owners/Members of the said
Society”. The words used in the SDA have to be given their proper
meaning. Respondent No. 2 was not permitted to do some
redevelopment work while the original developer kept all its rights
and obligations. The agreement says that Respondent No. 2 would
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replace the earlier developer under the redevelopment agreement
and the individual PAAAs. The new developer was required to
carry out the obligations mentioned in those agreements. In these
circumstances, Respondent No. 2 cannot take the benefits of the
redevelopment arrangement and at the same time say that the
related obligations belong only to the original developer. This does
not mean that every person connected with Respondent No. 2
becomes responsible under the PAAA. The position of each person
must be considered by looking at the agreements and that person's
conduct. But, in the case of Respondent No. 2, the clear provisions
of the SDA give a sufficient basis to hold that it cannot avoid the
arbitration clause only because it did not sign the original PAAA.
24. The Applicant has relied upon the principle that a person
who claims through or under an earlier contracting party cannot
take the benefits of an agreement and refuse to accept the
obligations which are part of the same agreement. The decision in
Cox & Kings Ltd. , is relevant for understanding the position of
persons who have not signed an arbitration agreement. However,
the present conclusion is not based on a general view that all
persons or companies connected with the same redevelopment
project must be treated as one. It rests on the clear provisions of
the SDA and the fact that the new developer was substituted under
the existing arrangement. In Cox & Kings Ltd. , paragraph 127, the
Supreme Court explained the test to be applied under the Group of
Companies doctrine. The Court held that the fact that companies
belong to the same group is not enough to bind a non-signatory to
an arbitration agreement. The Court or Tribunal must examine
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how that person was involved in the contract. The involvement
must show that the person actively accepted obligations or agreed
to perform the contract. The Supreme Court further stated that the
involvement must be positive, direct and substantial in the
negotiation, performance or termination of the contract. Merely
being involved in some small or incidental way is not enough. The
party who wants to bind a non-signatory must show through
objective evidence that the person was consciously and
deliberately involved.
25. In the present case, the Applicant's claim against Respondent
No. 2 is not based only on a relationship between different
companies or persons. Respondent No. 2 signed the SDA, and that
agreement provides for its substitution under the earlier
redevelopment arrangement and the individual PAAAs. The
Applicant is relying on an actual undertaking given by Respondent
No. 2 and not merely on its connection with the original developer.
26. In National Skill Development Corporation , paragraphs 25 to
28, the Supreme Court considered agreements which were
connected with each other. The Court held that their terms must
be read together to find out whether the parties intended them to
work as one arrangement. Importance was given to the fact that
the documents referred to and incorporated each other and were
intended to form parts of one commercial transaction. In
paragraph 26, the Court held that the documents were intended to
operate as “component parts of one composite transaction
governing a single commercial arrangement”.
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27. The principle from this decision is that where parties have
connected different documents and made them parts of one
arrangement, one document cannot be taken only to avoid the
method for deciding disputes which forms part of that
arrangement. This does not mean that all connected documents
will always become one agreement. The intention of the parties
must be understood from the actual words used in those
documents. Here, the SDA adopts the earlier redevelopment
agreement and the individual PAAAs. It requires the new developer
to perform the obligations stated in them. Thus, the connection
between these documents is shown by the terms of the
agreements.
Whether the arbitration clause became part of the later agreement:
28. The question of incorporating an arbitration clause by
referring to another document was considered by the Supreme
Court in Hirani Developers . In that case, the Development
Agreement contained an arbitration clause and the later
Agreements for Permanent Alternate Accommodation referred to
that earlier Development Agreement. Clause 14 of those
agreements provided:
“It is clarified that all the terms and conditions of the
development agreement dated July 4, 2012 shall be
construed to form a part of these presents and all the clauses
of the same shall be binding on the parties hereto.”
29. The Supreme Court considered Section 7(5) of the
Arbitration and Conciliation Act, 1996, which deals with making
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an arbitration clause in another document part of a contract. The
Court explained that mentioning another document is different
from saying that the document will become part of the contract. In
M.R. Engineers and Contractors (P) Ltd. v. Som Datt Builders Ltd.,
(2009) 7 SCC 696, paragraph 17, the Supreme Court held that if a
contract says that another document shall form part of it, or that
all the terms and conditions of that document will be treated as
part of the contract, those terms become part of the later contract
unless they go against a specific provision in it. Therefore, if the
earlier document contains an arbitration clause, that clause
becomes applicable.
30. Applying this principle, the Supreme Court held in
paragraphs 11 and 12 of Hirani Developers that Clause 14 showed
that the parties intended to make the earlier Development
Agreement part of the later PAAAs. The reference was not made
only for some limited purpose. The parties had agreed that all the
terms and conditions of the Development Agreement would form
part of the later agreements and that all its clauses would bind
them. Therefore, the arbitration clause in the earlier Development
Agreement became part of the later agreements. The provisions of
the agreements in the present case must be examined in the light
of this principle. The Applicant relies upon Clause 1 of the PAAA,
which reads as follows:
“It is declared, confirmed between all the parties that the
Development Agreement executed between the Developer,
and Society being party of the first part and third part is
registered under No. 07189-2012 with the Sub-Registrar of
Mumbai Suburban Registration District are valid and
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subsisting and binding upon all the parties and that all the
recitals and terms and conditions as specified in the
Development Agreement shall form an integral part of this
agreement as if they are inspected herein.”
31. The words in Clause 1 are important. The PAAA does not
refer to the Development Agreement only to identify the property
or decide some particular measurement. It states that the recitals
and the terms and conditions of the Development Agreement shall
form an integral part of the PAAA. Further, Clause 46 of the PAAA
itself provides for arbitration. Therefore, the Applicant is not
relying only on an arbitration clause taken from the Development
Agreement. The PAAA executed with the Applicant has its own
arbitration clause.
32. The SDA later provides that the new developer will be
substituted under the individual PAAAs and will have to perform
the obligations contained in those agreements. It states that
Respondent No. 2 “shall strictly abide by all the commercial terms”
of the PAAA. The “carpet area, location, position and amenities”
are to be as provided in the PAAA. The SDA further states that the
“fundamental clauses and terms” of the PAAAs “executed with the
Existing Members” “shall be an integral part of this Supplementary
Development Agreement”.
33. When these provisions are read together, it shows that the
intention was to continue the earlier arrangement. The SDA does
not mention the PAAAs only to take some limited information from
them. It provides for substitution of the new developer under those
agreements, requires the new developer to carry out the
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obligations in them and makes their fundamental clauses and
terms an integral part of the SDA. In these circumstances, the
arbitration clause in the PAAA cannot be separated from the other
obligations when the new developer has agreed to perform the
obligations stated in that agreement.
34. The decision in National Skill Development Corporation
supports reading connected documents together. The exact words
in the agreements considered by the Supreme Court in that case
were different from the words used in the present SDA. Even so,
the principle is that where the parties connect different documents
as parts of one arrangement, the Court must look at the whole
arrangement and give effect to the intention shown by the terms of
those documents.
35. Respondent No. 2 cannot say that the SDA makes it
responsible for the commercial obligations under the PAAA but
does not make it responsible for the arbitration clause in that same
agreement. The obligation to pay transit rent, the obligation to
provide the agreed premises and the method for deciding disputes
all arise from the same arrangement. No separate provision has
been shown which excludes the arbitration clause from the
obligations accepted by the substituted developer.
36. This conclusion is supported by NBCC (India) Ltd . The
Supreme Court held that an arbitration clause in another
document may become part of a later contract where the later
contract refers to the document containing the arbitration clause,
shows that the parties intended to include that clause and has no
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inconsistent provision. A general reference to another document is
not enough. In the present case, the SDA identifies the earlier
redevelopment agreement, refers to the registered PAAAs and
substitutes the new developer under those agreements. The
intention to accept the relevant obligations is shown by the terms
of the documents.
Effect of the objection that Respondent Nos. 2 to 4 did not sign the
PAAA:
37. The objection that Respondent Nos. 2 to 4 did not sign the
original PAAA cannot bring the present application to an end. The
real question is whether they accepted the obligations in the PAAA,
including its arbitration clause, by entering into or acting under
the later arrangement. In the case of Respondent No. 2, the terms
of the SDA provide a sufficient basis to answer this question in the
affirmative. In Cox & Kings Ltd, paragraph 170.12, the Supreme
Court held that, when a dispute is being referred to arbitration, the
Court should leave it to the Arbitral Tribunal to decide whether a
non-signatory is bound by the arbitration agreement. This
principle matters because the final responsibility of each
respondent, and the reason for treating that respondent as bound,
may depend on the terms of the agreements and the evidence
showing that person's involvement. However, the position of
Respondent No. 2 is different from that of Respondent Nos. 3 and
4. The material before this Court shows that Respondent No. 2
signed the SDA and was substituted as the developer. The
Applicant relies on the provision referring to the present or future
partners of the developers. But the material before this Court does
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not show the exact capacity in which Respondent Nos. 3 and 4
accepted individual obligations under the SDA. Their liability
cannot be decided only because they are connected with
Respondent No. 2 or are described as part of the group of
developers.
38. The requirement explained in paragraph 127 of Cox & Kings
Ltd must be applied to each non-signatory whose involvement is
disputed. The Arbitral Tribunal will have to examine the relevant
agreements and objective evidence to find out whether
Respondent Nos. 3 and 4 directly and consciously accepted
obligations under the redevelopment arrangement or otherwise
became bound by the arbitration agreement. Their connection with
Respondent No. 2, will not be enough. But this question does not
require the whole application to be rejected at the beginning.
There is a prima facie basis for sending the disputes against
Respondent No. 2 to arbitration. The position of Respondent Nos.
3 and 4 can be examined by the Arbitral Tribunal in accordance
with law.
39. In The Zoroastrian Radih Society , this Court considered
whether a person could be treated as a stranger to an arbitration
arrangement only because that person had not signed the original
agreement. In that case, this Court relied upon the judgment in
Shri Shivranjan Towers Sahakari Griha Rachana Sanstha Maryadit
v. Bhujbal Constructions and Others, 2025 SCC OnLine Bom 3097
and referred to the following observation in paragraph 20 thereof:
“Undoubtedly, the Petitioner-society is not a signatory to the
said Agreement for Sale and it could not have been a
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signatory as it was yet to be formed. Therefore, the issue
cannot be determined only on the premise that the
Petitioner-society is not a signatory to those Agreement for
Sale which contains the Arbitration Clause.”
40. This observation does not mean that every person who has
not signed an arbitration agreement must be bound by it. It means
that the absence of a signature cannot be the only thing considered
while deciding the issue. The Court must look at the actual
relationship between the parties and find out where their rights
and obligations come from. In The Zoroastrian Radih Society , this
Court referred to Daman Singh v. State of Punjab, which dealt with
the relationship between a cooperative society and its members. In
that case, the Society had not been formed when the individual
Agreements for Sale were made. The present case is about a new
developer which later entered into a supplementary agreement
and was substituted under the existing redevelopment agreements.
Though the facts are not the same, the need to examine the actual
relationship remains.
41. The Applicant has shown that the objection that the
respondents did not sign the PAAA cannot defeat the arbitration
application. Respondent No. 2 accepted obligations under the SDA
relating to the PAAA. As regards Respondent Nos. 3 and 4, their
position will have to be decided by the Arbitral Tribunal after
looking at the agreements and the evidence. It is not necessary to
give a final finding on their individual liability while deciding the
present application.
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Effect of Clause 69 of the SDA:
42. The respondents have further argued that the SDA does not
contain an arbitration clause and that Clause 69 gives jurisdiction
to the Courts at Mumbai. Clause 69 reads as follows:
“In case of any dispute or differences which may arise
between the parties hereto with regard to the right and
obligation of parties herein and/or the interpretation of any
of the clauses herein contained then the Court/s in Mumbai
alone shall have jurisdiction to entertain and try such
disputes.”
43. This objection has to be considered by looking at the actual
words of Clause 69. It refers to disputes “between the parties
hereto” about their rights and obligations under the SDA or the
meaning of its clauses. The Applicant has not signed the SDA. His
claim arises under the PAAA, which contains Clause 46 providing
for arbitration. The SDA substitutes the new developer under the
PAAA and requires it to perform the obligations stated in that
agreement. Therefore, the Applicant's claims cannot be treated as
governed only by Clause 69 merely because that clause appears in
the SDA. Clause 69 says that the Courts at Mumbai will have
jurisdiction to hear and decide the disputes mentioned in it. But it
does not say that an arbitration clause taken from another
document will stop operating or that disputes cannot be referred
to arbitration. This clause has to be read along with the other
provisions by which the PAAA and the earlier redevelopment
agreement were adopted. Both provisions can work together
without treating the arbitration clause as having ended.
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44. The fact that the SDA does not contain an arbitration clause
does not decide the issue . Section 7(5) of the Arbitration and
Conciliation Act, 1996 allows an arbitration clause to be
incorporated by reference. The decisions in M.R. Engineers, NBCC
and Hirani Developers require the Court to examine whether the
reference is clear and whether the parties intended to make the
arbitration clause part of the later arrangement. For the reasons
stated, the relevant provisions of the SDA satisfy this requirement,
at least in relation to Respondent No. 2.
45. The respondents' argument that the Applicant must approach
the Civil Court instead of invoking arbitration cannot be accepted.
Clause 69 does not defeat the arbitration clause in the PAAA,
which has been adopted as part of the later arrangement. This
finding is limited to the Applicant's claims arising under the PAAA
and the obligations accepted by the substituted developer. It does
not mean that every dispute arising under the SDA, whatever the
parties or the relevant terms may be, must go to arbitration.
Whether the dispute about the terrace prevents reference to
arbitration:
46. The respondents say that the Applicant is not entitled to the
terrace area of 318 square feet. They rely on Clause 7.1 of the
registered Agreement for Redevelopment dated 27 August 2012.
That clause reads as follows:
“7.1 The developers under the terms of this agreement have
agreed to grant to the presently existing member/s new
flat/commercial units in the proposed building/s to be
constructed on the said plot which shall have the presently
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existing carpet area occupied by the member as per joint
measurement plan including dry balcony, flower bed, niches
as per the approval of the MCGM. The said New
flat/commercial unit shall be made available to each of the
presently existing member/s free of cost and shall have the
benefit of areas as mentioned aforesaid (hereinafter referred
to as the said ‘PERMANENT ALTERNATE
ACCOMMODATION’) in accordance with the details of the
areas mentioned in the List of members furnished by the
society as per its present records and duly verified by the
Developers. The permanent alternate accommodation to be
granted hereunder shall have constructed carpet area
(internal wall to wall), viz., the presently existing carpet area
of the flat/s/commercial units agreed to be granted
hereunder including dry balcony, flower bed, niches. The
commercial units shall have 14 ft height from unfinished
floor to slab on current existing area as per the approval
from the MCGM, the details thereof are mentioned in the
copy of the area statement annexed hereto (a copy of the
area statement is annexed hereto and marked as Annexure
‘VII’).”
47. According to the respondents, this clause limits each
member's entitlement to the carpet area which the member
occupied earlier, together with the areas mentioned in the clause.
They further say that the original Agreement for Redevelopment
did not promise a terrace and that the approved plans do not show
the terrace claimed by the Applicant. On this basis, they dispute his
claim for an additional 318 square feet. The Applicant, on the
other hand, relies on the specific terms of his registered PAAA.
According to him, Flat No. 803 was allotted to him along with an
open terrace measuring 318 square feet. He says that the dispute
about the terrace has come directly from the arrangement and
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should be decided by the Arbitral Tribunal.
48. At this stage, it is not necessary to decide which side is
correct. The Agreement for Redevelopment contains provisions
about the area to be given to existing members. The Applicant
relies on his individual PAAA and says that it gives him a terrace in
addition to the carpet area. The parties disagree about how these
provisions should be understood. The relevant documents will
have to be read together, the allotment details examined, the
approved plans considered and the terms interpreted before the
claim can be decided.
49. The respondents' objection that the approved plans do not
show the terrace is relevant to the Applicant's claim. But this
objection does not, , mean that the dispute cannot be sent to
arbitration. Whether the terrace was promised under the PAAA,
whether the allotment depended on the approved plans and what
relief can be given if the promise is proved are questions which
require examination of the evidence and the complete
arrangement.
50. The respondents have objected to the Applicant's claim for
separate car parking. If this claim is not part of the reliefs sought
in the present application, there is no need to decide it here. If the
Applicant raises such a claim before the Arbitral Tribunal, it will
have to be considered according to the relevant terms and facts.
This order does not declare that the Applicant is entitled to the
terrace or any car parking space.
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Whether the claim for transit rent has been proved:
51. The Applicant says that Respondent Nos. 2 to 4 failed to pay
monthly transit rent as required under paragraph 61 of the SDA.
The respondents, however, say that rent was regularly paid until
23 August 2022. They admit that Respondent No. 2 “regularly paid
the monthly compensation/rent to the Applicant” until that date.
They have said that they are ready to pay rent as required.
52. The respondents' admission that rent was paid until 23
August 2022 is relevant. It shows that payments were made in
connection with the Applicant's earlier premises and the
redevelopment arrangement. But it does not establish what
amount was payable after that date or prove that all obligations
were fulfilled. The Applicant says that some amounts were left
unpaid, while the respondents dispute this. Whether rent
continued to be payable, the period for which it was payable and
how the payments made should be taken into account will have to
be decided after examining the evidence.
53. The application mentions different amounts calculated for
different dates. The Applicant claims that Rs. 13,91,858/-
remained unpaid as on 31 May 2023 after giving credit for a part
payment. He claims Rs. 73,05,937/- as on 1 August 2023 towards
rent, double rent and interest. These are disputes about whether
any liability exists and, if it does, how much has to be paid. The
respondents' denial does not mean that there is no arbitration
agreement. At the same time, the Applicant cannot get the
amounts claimed only because an Arbitrator is appointed. The
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Arbitral Tribunal will have to examine the agreements, accounts,
payments and calculations of both sides before deciding what
amount, if any, is payable. The present application seeks
arbitration for the transit rent dispute as well as the dispute about
the terrace. Both claims are said to arise from the PAAA and the
later redevelopment arrangement. They are disputes for which the
arbitration clause has been invoked. Whether the Applicant
succeeds in either claim, fully or partly, is different from the
question whether the disputes can be sent to arbitration.
Effect of the pending MahaRERA proceedings:
54. The respondents next say that the Applicant has filed
Complaint No. CC006000000303322 before the MahaRERA
Authority and cannot again ask for the same reliefs through
arbitration. The Applicant says that the MahaRERA proceedings
have been disclosed in this application. He further says that the
notice invoking arbitration was issued without affecting those
proceedings and that the disputes raised here have not been
decided by any other forum. According to him, the reliefs claimed
in the two proceedings are different.
55. The fact that a proceeding before a statutory authority is
pending cannot be ignored. But merely because another
proceeding has been filed, it does not follow that every dispute
between the parties must be kept out of arbitration. The nature of
the dispute, the reliefs claimed, the powers of the statutory
authority and the legal effect of the pending proceedings have to
be examined before reaching such a conclusion.
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56. In M. Hemalatha Devi v. B. Udayasri, 2023 INSC 870, the
Supreme Court considered whether a consumer could seek a
remedy under the Consumer Protection Act even when an
arbitration agreement existed. The Court held that the nature of
the dispute and the statutory remedy available to the consumer are
important in deciding whether the matter can be referred to
arbitration. However, that case concerned proceedings under
consumer protection law. Its principles cannot be applied to every
dispute only because a proceeding is pending before a statutory
authority under another law.
57. The decision in The Zoroastrian Radih Society , considered an
objection based on pending consumer proceedings. In that case,
the Applicant gave an undertaking that it would not press and
would withdraw the interim application seeking monetary reliefs
before the consumer forum. This Court accepted that undertaking
and held that, in those circumstances, the objection about
overlapping monetary claims was not enough to refuse
appointment of an Arbitrator.
58. The facts in the present case are different. The Applicant has
not given any undertaking to withdraw the MahaRERA complaint.
He says that the reliefs claimed in the two proceedings are
different, while the respondents say that the same reliefs are being
claimed in both. The material before this Court is not enough to
hold that all the claims before MahaRERA are the same as the
claims sought to be referred to arbitration. There is no material to
show that the disputes raised in the present application have been
decided by that authority.
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59. The respondents' objection cannot be accepted as an
absolute bar to appointing an Arbitrator only because the
MahaRERA complaint is pending. However, this order does not
allow the Applicant to obtain the same relief twice. Nor does it
mean that every claim made before MahaRERA can be referred to
arbitration. The legal effect of those proceedings, any claims which
overlap and the extent to which the disputes can be referred to
arbitration will have to be considered according to law. The
Applicant shall place the relevant pleadings and orders from the
MahaRERA proceedings before the Arbitral Tribunal. Any question
about a statutory bar, the choice of remedies or prevention of
double recovery shall remain open for decision, to the extent that
it falls within the Tribunal's jurisdiction.
Alleged failure to produce the Development Agreement:
60. The respondents have alleged that the Applicant deliberately
did not attach the registered Agreement for Redevelopment dated
27 August 2012, registered on 28 August 2012 under Serial No.
BDR-11-07189-2012, because he wanted to mislead this Court.
They rely on this document to say that the members were
promised only the carpet area which they were occupying earlier
and were not promised any additional terrace area.
61. The Agreement for Redevelopment is relevant for deciding
what the Applicant is entitled to under the contract. The
respondents have relied on this document in support of their
defence, and the relevant clause has been placed before this Court.
However, merely because the Applicant did not attach the
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document at the beginning, and it is now available for
consideration, it cannot be concluded that he intended to mislead
the Court. There must be some material to support such a finding.
In any case, it is not necessary to make such a finding for deciding
the present application. There is a difference in the dates
mentioned while describing the redevelopment arrangement. The
Applicant refers to 25 March 2014, whereas the respondents rely
on the Agreement for Redevelopment dated 27 August 2012,
registered on 28 August 2012. The PAAA and the SDA refer to the
registered redevelopment arrangement by giving its particulars.
This difference in the dates does not take away the arbitration
clause from the PAAA or decide whether the substituted developer
agreed to follow its terms. If this difference affects the meaning or
application of any provision, the parties may place the relevant
documents before the Arbitral Tribunal. No final finding about the
terrace or rent claims is being made on this ground.
Scope of examination under Section 11:
62. After considering the above submissions, I find that there is a
written arbitration agreement in the PAAA. Clause 46 provides for
arbitration, and the Applicant has invoked that clause for disputes
concerning the performance of obligations under the
redevelopment arrangement. The question is whether the fact that
Respondent Nos. 2 to 4 did not sign the PAAA is enough to stop
these disputes from being referred to arbitration. For the reasons
stated, it is not enough. The SDA substitutes Respondent No. 2
under the earlier redevelopment arrangement and the individual
PAAAs. It requires the obligations mentioned in those agreements
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to be performed. When the provisions of the SDA are read with
Clauses 1 and 46 of the PAAA, there is a sufficient prima facie basis
for referring the disputes concerning Respondent No. 2 to
arbitration. The respondents have not shown any clear provision
which excludes the arbitration clause in the PAAA from the
obligations accepted under the SDA.
63. The position of Respondent Nos. 3 and 4 is different because
their individual capacity and involvement have not been
established from the material placed before this Court. As
explained in Cox & Kings Ltd , whether a non-signatory is bound by
an arbitration agreement must be decided by examining the
arrangement and objective evidence showing that person's
involvement. Respondent Nos. 3 and 4 cannot be treated as bound
only because they are connected with Respondent No. 2. Their
position may be examined by the Arbitral Tribunal according to
law, including the principle stated in paragraph 170.12 of that
judgment.
64. The objection that the SDA does not contain a separate
arbitration clause is not enough to refuse reference to arbitration.
The SDA adopts the earlier redevelopment arrangement and
requires the new developer to perform the obligations contained in
it. Clause 69, which refers to the jurisdiction of the Courts at
Mumbai, does not exclude the arbitration clause in the PAAA. The
decision in Hirani Developers and the principles explained in M.R.
Engineers, NBCC and National Skill Development Corporation
support reading the connected agreements together instead of
treating every document separately.
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65. The other objections raised by the respondents concern the
actual claims made by the Applicant. Whether he is entitled to the
terrace, whether the approved plans affect that entitlement,
whether transit rent continued to be payable after 23 August 2022,
whether the 10% increase applies throughout the period claimed
and whether double rent or interest is payable are all disputed
questions. These matters require examination of the agreements,
approved plans, accounts and other evidence. The respondents will
be able to raise their objections before the Arbitral Tribunal.
66. The Applicant's claims cannot be treated as proved merely
because an Arbitrator is appointed. At the same time, the
respondents cannot avoid arbitration only by denying the claims
when the disputes arise from a arrangement which, on a prima
facie examination, contains an arbitration clause applicable to the
substituted developer. The purpose of referring the disputes to
arbitration is to provide a forum where they can be decided
according to law. Appointment of an Arbitrator does not decide the
rights of either side in advance.
67. After considering all the material placed before this Court, I
find that the Applicant has shown sufficient grounds for appointing
a Sole Arbitrator to decide the disputes arising from the PAAA and
the connected redevelopment agreements.
68. In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:
A) Ms Shruti Tulpule, an Advocate of this court is
hereby appointed as the Sole Arbitrator to adjudicate
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upon the disputes and differences arising from the
Agreement for Permanent Alternate Accommodation
dated 21 June 2014, read with the Supplementary
Development Agreement dated 28 December 2015;
Office Address:- Office No. 7, Teekays Business Centre,
Mezzanine Floor, Ready Money Mansion, Veer
Nariman Road, Fort, Mumbai – 400001
Email: [email protected]
Contact: 98234 74226
B) A copy of this Order will be communicated to the
Learned Sole Arbitrator by the Advocates for the
Applicant within a period of one week from today. The
Applicant shall provide the contact and communication
particulars of the parties to the Arbitral Tribunal along
with a copy of this Order;
C) The Learned Sole Arbitrator is requested to
forward the statutory Statement of Disclosure under
Section 11(8) read with Section 12(1) of the Act to the
Advocates for the Applicant so as to enable them to file
the same in the Registry of this Court. The Registry of
this Court shall retain 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;
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D) The parties shall appear before the Learned Sole
Arbitrator on such date and at such place as may be
indicated by the Learned Sole Arbitrator, for obtaining
appropriate directions with regard to the conduct of
the arbitral proceedings, including fixing the schedule
for filing of pleadings, examination of witnesses, if any,
and dates of hearing. At such meeting, the parties shall
furnish to the Arbitral Tribunal valid and functional
email addresses, together with the mobile and landline
telephone numbers of their respective Advocates.
Communications sent to the said email addresses shall
constitute valid service of correspondence in
connection with the arbitral proceedings.
E) All arbitral costs and fees of the arbitration and
of the Arbitral Tribunal shall be borne by the parties
equally in the first instance. The same shall, however,
remain subject to any final Award that may be passed
by the Arbitral Tribunal in relation to costs.
69. The question whether Respondent Nos. 3 and 4 are
individually bound by the arbitration agreement shall remain open
for decision by the Arbitral Tribunal according to law.
70. The Learned Sole Arbitrator shall be at liberty to adjudicate
upon the claims and counterclaims, if any, and to determine all
questions relating to merits, in accordance with law.
71. All actions required to be taken pursuant to this order shall
be taken upon receipt of a downloaded copy as available on this
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Court’s website.
72. The Commercial Arbitration Application stands disposed of
in above terms.
(AMIT BORKAR, J.)
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