Through this Application under Section 11 of the Arbitration and Conciliation Act, 1996 (Act 26 of 1996) (for short, the Act), applicant Mohd. Imtiyaz Ahmed has sought the appointment of arbitrator for settlement of disputes between him and the respondents arising out of the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007.

2. Background facts in a nutshell leading to filing of this Arbitration Application are : Respondents Mohd. Hussain Khan and Noor Ahmed Khan are owners of the houses bearing Municipal No.12-1-566 to 574, totally admeasuring 630 sq. yards. The applicant and the respondents entered into a registered Agreement of Development-cum-General Power of Attorney on 19.09.2007. The applicant had applied to the Greater Hyderabad Municipal Corporation for going ahead with the construction project and obtained sanction on 21.02.2008. A Supplementary Agreement of Development came to be executed between the parties on 18.10.2008 with regard to change in sharing of the constructed areas among them. The respondents got issued a notice dated 12.03.2009 terminating the contract. They also filed a suit O.S.No.408 of 2009 on the file of VII Senior Civil Judge, City Civil Courts, Hyderabad, against the applicant seeking cancellation of the Supplementary Agreement of Development. Whileso, the applicant issued a notice dated 13.08.2009 invoking the arbitration clause in the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007 and nominating Hon’ble Justice Vaman Rao, a retired Judge of this Court, as an arbitrator for resolution of disputes. The respondents issued a reply stating that once the Agreement of Development-cum-General Power of Attorney is cancelled, the clauses therein cannot be treated as part and parcel of the Supplementary Agreement of Development, dated 18.10.2008 and as the Supplementary Agreement of Development, dated 18.10.2008, does not contain the arbitration clause, appointment of arbitrator does not arise. Hence, this application by the applicant under Section 11 of the Act, seeking the appointment of an arbitrator for settlement of disputes arising out of the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007.

3. Notice before admission came to be ordered on 18.11.2009. The respondents entered appearance through a counsel and filed counter-affidavit.

4. The sum and substance of the counter-affidavit filed by the respondents is that once the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007, is cancelled, the clauses therein cannot be treated as part and parcel of the Supplementary Agreement of Development, dated 18.10.2008 and as the Supplementary Agreement of Development, dated 18.10.2008 does not contain the clause with regard to the appointment of arbitrator, the application filed under Section 11 of the Act is liable to be dismissed. Para.2 of the counter-affidavit needs to be noted and it is thus:

"2. In reply to para. No.2. It is true that myself and R2 are owners of property bearing 12-1-566 to 574. It is false to say that Applicant is distantly related to our family. That the contract was signed between myself and my brother as Applicant is friend of my son. Applicant got any how executed a Registered Development Agreement-cum-GPA on 19.09.2007, bearing Doc.No.4321 of 2007 in his favour. I, truly states that the terms as agreed between us in the Doc.No.4321 of 2007, were altered and altogether a new agreement was executed i.e., "Supplementary Agreement of Development", Dt.18.10.2008, bearing Doc.No.4333 of 2008, wherein true and correct statement of Applicant and Respondents were recorded, canceling the original agreement Doc.No.4321 of 2007 which contains the Arbitration clause. Therefore, the Arbitration clause is no more in existence, after execution of Doc.No.4333 of 2008. That the execution of Development Agreement-cum-GPA has been carried out by both the parties voluntarily and the cancellation of