Alok Aradhe, J.

Sri. S. Sriranga, learned counsel for the petitioner. Sri.Santhosh H.R., learned counsel for the respondent Nos.1 to 4.

Sri.Janekere C.Krishna, learned counsel for respondent No.5.

2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.

3. In this petition, under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act' for short), the main issues which arise for consideration are, whether Clause 27.4 of the agreement is an arbitration agreement and whether respondent No.5 who is third party to the agreement can be subjected to arbitration proceeding. The ancillary issues which arises for consideration are about the effect of order dated 11.04.2018 passed by Division Bench of this Court in MFA No.8190/2016 and whether the petitioner has bifurcated the parties and the claims which is impermissible in law. In order to appreciate the issues involved in this proceeding, the background facts which lie in a narrow compass may be referred to.

4. The petitioner and respondent Nos.1 to 4 entered into joint development agreement on 25.11.2011 for development of properties mentioned in schedule B and C annexed to the agreement. A memorandum of understanding was executed by the petitioner and the respondents to enforce the execution and registration of the joint development agreement. The petitioner paid a sum of Rs. 7.5 lakhs to the respondent Nos.1 to 4 which was refundable on the first day of the month following the date of completion as defined in joint development agreement. The respondent Nos.1 to 4 issued a notice on 29.01.2013 to terminate the joint development agreement, to which the petitioner responded by submitting a reply on 05.03.2013. The petitioner thereafter filed an application under Section 9 of the Act on 09.08.2014. However, the respondent Nos.1 to 4 on 12.09.2014 sold Schedule B and C properties to respondent No.5. On 22.07.2015, the petitioner issued a legal notice for appointment of an arbitrator to resolve the dispute between the parties on or about 07.11.2015. The petitioner, thereafter filed an application to implead respondent No.5 on 30.08.2017. It is noteworthy that respondent No.5 was impleaded in Section 9 of the Act, in the absence of any objection by it.

5. Learned counsel for the petitioner submitted that Clause 27.4 of the joint development agreement contains an arbitration clause and the petitioner had given a notice on 22.07.2015 for appointment of an Arbitrator. The respondent Nos.1 to 4 have sold the properties in favour of respondent No. 5. Therefore, he is successor in interest of respondent Nos.1 to 4 and any person claiming through a party can be made party to the arbitration proceeding. It is also argued that in a proceeding under Section 9 of the Act, the application for impleadment of respondent No. 5 was allowed in the absence of any objection by it. In support of the aforesaid submissions, reference has been made to the decisions of the Hon'ble Supreme Court in 'CHLORO CONTROLS INDIA (P) LTD. Vs. SEVERN TRENT WATER PURIFICATION INC., (2013) 1 SCC 641' AND 'PURPLE MEDICAL SOLUTIONS PRIVATE LIMITED Vs. MIV THERAPEUTICS INC. AND ANOTHER, (2015) 15 SCC 622'.

6. On the other hand, learned counsel for respondent No. 5 submitted that the provisions of the Arbitration and Conciliation (Amendment) Act, 2015, do not apply to the fact situation of the case as the arbitral proceeding commenced on 25.07.2015. The parties have not agreed to be governed by Amendment Act 2015. It is further submitted that existence of arbitral agreement is a sine-qua non and intention to arbitrate must be unequivocal. It is urged that arbitral clause has to be strictly construed. It is pointed out that in the absence of any agreement between the petitioner and respondent No.5, the petition is liable to be dismissed qua respondent No.5. It is also submitted that the Division Bench of this Court in MFA No.