Judgment :-

Dalveer Bhandari, J.

1. This application has been filed by the applicant under section 11(5) read with section 11(9) and section 11(12) of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator for adjudicating and deciding the disputes which have arisen between the applicant and the respondents in respect of the implementation and working of agreements entered into between the applicant and the respondent no.3 on the one hand and respondent nos.1 and 2 on the other hand on 29.1.2005 and the supplementary agreement between the same parties on 2.2.2005.

2. The applicant is a citizen of the United States of America and is a person of Indian origin.

3. Respondent no.3, Dr. Vinod Kaura is the husband of the applicant, Vanna Claire Kaura.

4. Respondent no.2, Anil Indulkar was doing business in Pharmaceuticals in USA and respondent no.1, Gauri Anil Indulkar is his wife. Respondent no.2 came in contact with the applicant and he represented to the applicant and respondent no.3 that there was a good prospect of business for water and amusement park in India and that if the applicant and respondent no.3 invested in India, the applicant and respondent no.3 would get good returns on their investments. Consequently, the applicant and respondent no.3 remitted $6,40,000 (US Dollars) to respondent nos.1 and 2. A memorandum of understanding dated 7.6.2000 was entered into between the applicant and respondent no.3 on the one hand and respondent nos.1 and 2 on the other. On the basis of the capital so provided by the applicant and respondent no.3, respondent nos.1 and 2 formed a company called, M/s Splash Mountain Water Park Pvt. Ltd. with its registered office at Pune, Maharashtra. According to the applicant, it was agreed that 1,67,000 equity shares of Rs.100/-each in the said company shall be allotted as fully paid-up shares to the applicant and respondent no.3 by way of 40% equity shares to be allotted to the applicant as per the earlier understanding. It was also agreed that respondent nos.2 and 3 shall hold the remaining 2,50,400 equity shares of Rs.100/-each representing their 60% shares holdings in the company.

5. According to the applicant, it was agreed by an agreement dated 29.1.2005 that respondent no.1 who owned 25 acres of land in Pune should transfer 10 acres out of the said land along the eastern boarder thereof to the applicant in lieu of the 40% contribution made by the applicant towards the initial capital. There is a clause of arbitration in the said agreement. In the supplementary agreement entered on 2.2.2005 a small modification was made that inasmuch as respondent no.1 undertook to transfer and convey the entire 25 acres of land owned by her to the applicant instead of the earlier agreed extent of 10 acres of land. Accordingly, respondent no.1 did not transfer the land, as agreed. It is alleged that respondent nos.1 and 2 called a Board meeting of the company hurriedly to ensure that the applicant and respondent no.3 could not know about the meeting and there was no possibility of their participation in the said meeting. In the said meeting, respondent nos.1 and 2 maneuvered to get a resolution passed to wind up the Water Park business of the company and transferred the said business to another company owned by the close relatives of respondent nos.1 and 2. The land on which the business of the company was being run was also handed over to the said company owned by the close relatives of respondent nos.1 and 2.

6. In these circumstances, the applicant had sent a legal notice on 14.3.2006 to respondent nos.1 and 2 appointing one Vilol Khaladkar as an arbitrator and also called upon respondent nos.1 and 2 to appoint their arbitrator. Since respondent nos.1 and 2 did not take any steps to appoint their arbitrator, the applicant filed an arbitration petition in the High Court of Bombay under section 11 of the Act. The applicant submitted that the said arbitration petition filed by the applicant