The main legal point established is that disputes involving third party rights and allegations of fraud may be deemed non-arbitrable, requiring adjudication in a properly instituted proceeding with the involvement of the third parties.

ORDER

1. The petitioner is a society registered under the Karnataka Societies Registration Act, 1960 [hereafter referred to as 'the Association']. The first respondent is a company registered under the Companies Act, 1956 and is engaged in the business of real estate development and construction of multi-storied apartments. The second respondent is a company registered under Section 25 of the Companies Act, 1956. The dispute is about the handing over vacant possession of certain apartments constructed in the property bearing No.3 (old 25, 25/2) situated at Norris Road, Municipal ward No. 76, Richmond Town, Bengaluru, admeasuring 18796 Sq. Ft [the Subject Property].

2. The residential apartment building comprising of these apartments is constructed by the first respondent in performance of the terms of the Joint Development Agreement dated 04.10.2010 and the Supplemental Agreement of even date. These agreements are executed and registered amongst the petitioner and the respondents. The Joint Development Agreement dated 04.10.2010 [hereinafter referred to as, 'the J D Agreement'] is executed contemporaneously with a Power of Attorney. The J D Agreement provides for resolution of disputes/ difference amongst the parties thereto, and clause 30 thereof reads as extracted hereafter. It must be observed that a copy of the Supplemental Agreement dated 04.10.2010 is not produced by either of the parties.

30) SPECIFIC PERFORMANCE AND DISPUTE RESOLUTION:

30.1) In the event of a breach by either party, the other party (the aggrieved party) shall be entitled to specific performance and also be entitled to recover all losses, expenses and damages incurred as a consequence of such breach from the party committing breach;

30.2) Irrespective of what is stated in this Agreement, any breach committed by a Party may be complained of by the Other Party in writing calling upon the Party in breach to remedy the breach. On the failure of such Party to remedy such breach within 15 days from the date of receipt of such notice to that effect, the non- defaulting Party shall take steps to resolve such compliance in terms stated below

30.3 In the event of any dispute of difference arising in relation to this agreement, its interpretation, performance or any other matter, the same shall be decided by mutual discussion between the parties. Either of the Party shall be entitled to raise such question in writing in a letter to the other Party and the Parties' representative shall meet and use good faith efforts to resolve such dispute or differences within a week of either of the Parties raising a dispute.

30.4 In the event of the Parties being unable to resolve their difference/dispute by conciliation as above or within such further time as the Parties may mutually agree, the dispute may be referred by either Party to the Arbitration by a panel of three [3] arbitrators (one to be appointed by the First Party and the other to be appointed by the Second Party and third by the two [2] arbitrators) in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any re- enactment or modification thereof and shall be decided by such Arbitral Tribunal;

i) The venue of the arbitration will be held in Bangalore City;

ii) The language of the Arbitration Proceedings will be in English.

The disputes shall be resolved of reference or within a reasonable period as may be agreed between the parties in writing. It is, however, clarified the work will not stop, pending the Arbitration process.'

3. The undisputed facts are that the M/s.World Gospel Mission has purchased the subject property under the sale deed dated 20.09.1961, and this Mission, a trust, has executed a Deed of Trust from one Trustee to another dated 29.12.1973 endowing all its immoveable properties, including the subject property. The second respondent is described as the Transferee Trustee and the petitioner is described as the Administrative Trustee. This Deed of Trust dated 29.12.1973, because