ORDER :

Arup Kumar Goswami, J.

1. Heard Mr. S.S. Prasad, learned Senior Counsel assisted by Mr. V.V. Ramakrishna - learned counsel for the applicants. Also heard Mr. O. Manoher Reddy, learned counsel for the respondents.

2. This is an application filed by the applicants under Section 11(5) & (6) of the Arbitration and Conciliation Act, 1996 (for short "the Act, 1996") for appointment of an arbitrator.

3. The applicant No. 1 is the father and the applicant Nos. 2 and 3 are his sons and the applicant No. 1 is the general power of attorney holder of the applicant No. 2.

4. The case of the applicants is that they are the absolute owners and possessors of land admeasuring 1877 sq. yards out of 2824 sq. yards along with ACC shed of old municipal ward No. 52, present ward No. 17, Old Assessment No. 26202T/3, New Assessment No. 575842, Door No. 40-17-192/1H, in RS.No. 28/1, situated near Greenlands Hotel, Labbipet, Vijayawada, Krishna District. The above land, which is described in schedule 'C', had fallen into the share of the applicant No. 1 under a registered deed of partition dated 18.09.2010.

5. In order to develop the property commercially, the applicants were looking for prospective builders and in that context, the respondents had approached the applicants. After detailed discussions and deliberations, a Development Agreement coupled with General Power of Attorney (for short, 'Agreement') dated 26.09.2016 came to be executed. Consequent upon the execution of the Agreement, the 'C' schedule property was handed over to the respondents. Though the building plan was approved in the month of December, 2016 and, yet, they did not proceed further to start the project. However, the respondents started raising demands for handing over of additional land for a road contrary to the terms and conditions of the Agreement.

6. Thus, a dispute having arisen, a legal notice dated 06.04.2017 was issued by the applicants for referring the dispute to an arbitrator and proposing to appoint Mr. K.V.V. Satyanarayana Murthy, Advocate to resolve the dispute between the parties or to come forward for execution of cancellation of the Agreement. However, the respondents, by reply notice dated 28.04.2017, rejected the name of the arbitrator proposed by the applicants and in turn, proposed to appoint Mr. Doguparthi Murali Krishna Rao, Advocate as arbitrator and also made claims which are not subject matter of the Agreement. Another notice dated 05.08.2017 was issued by the applicants raising claim against the respondents, as against which, a reply was issued by the respondents by rejecting the claim of the applicants as well as the name of arbitrator proposed. One more notice was issued calling upon the respondents to appoint an arbitrator within 30 days from the date of receipt of the notice. The respondents replied back proposing the name of Mr. Doguparthi Murali Krishna Rao, Advocate as arbitrator to resolve the dispute which, however, was not accepted by the applicants.

7. In the backdrop of the aforesaid facts, the present application came to be filed for appointment of an arbitrator.

8. A counter-affidavit was filed on behalf of the respondents.

9. Before the objection taken in the counter-affidavit and the arguments of the learned counsel for the parties are noted, it would be appropriate to extract Clause 20 of the Agreement, based on which this application is filed.

"20. If any dispute arises between the parties hereto on account of this agreement, the same shall be referred to an Arbitrator mutually appointed and the decision of the Arbitrator shall be final and conclusive. If there is no mutual agreement for appointment of the Arbitrator, then the disputes can be resolved by filing civil suits in a competent court of law at Vijayawada jurisdiction."

10. In the counter-affidavit, it is stated that there was no mutual agreement for appointment of the arbitrator and since there is no consensus with regard to the arbitrator, the application is not maintainable