1. Both the above Appeal and the Arbitration Application have been referred to us for final disposal by the Hon’ble the Chief Justice.

2. The above Appeal arises out of a judgment and order dated 27th August,2007 passed by the learned Single Judge dismissing the Arbitration Petition filed under Section 9 of the Arbitration and Conciliation Act,1996 (for the sake of brevity "the said Act") and the above Arbitration Application No.43 of 2008 has been filed for the purpose of appointment of an Arbitrator as per the provisions of Section 11 of the said Act.

3. The entire controversy in both the above Appeal as well as the Arbitration Application arises out of the purported Memorandum of Understanding (in short MOU) entered upon between the Ravilal Nanji Dedhia Group and Rajesh Builders Group. It is the case of the Appellant that a MOU was executed between the Ravilal Nanji Dedhia Group and Rajesh Builders Group on 8th November,2004, wherein in Arbitration clause, both the parties had jointly appointed one Shantilal Vershi Haria as a sole Arbitrator. Mr.Aney, the learned Senior Counsel appearing on behalf of the Appellant contended that it was a joint venture arrangement, whereby both the parties had agreed to jointly develop a property situated at Prabhadevi by demolishing an existing structure. Mr.Aney, the learned Senior Counsel pointed out that as per the aforesaid MOU, the share would be on 50:50 percentage sharing basis. Mr.Aney, the learned Senior Counsel pointed out that before the aforesaid development could take place, various other formalities had to be completed as mentioned in Clause-2 of the aforesaid MOU. It is the case of the Appellant that pursuant to the aforesaid joint venture agreement, the Appellant had contributed a sum of Rs.31 lacs on 10th November,2004 and another sum of Rs.1 Crore on 18th May,2005 and lastly Rs.1.5 Crores on 25th April,2006. Mr.Aney, the learned Senior Counsel contended that part of the aforesaid amount was used to pay off the Everest Construction Company as well as Lake View Developers and even thereafter for the purpose of obtaining retirement deed from Satinder Pal Investment Pvt.Ltd.

4. Mr.Aney, the learned Senior Counsel pointed out that when his client came to know about a public notice issued by the proposed buyer Everest Construction Co. on 3rd July,2007, immediately a notice was given by Appellant’s Advocate stating that there is a joint venture agreement subsisting between the Rajesh Builders Group and Dedhia Group. Thereafter within a period of four days, the Appellants through their Advocate invoked the Arbitration clause seeking arbitration. Thereupon, a letter was received from the Advocate of Ravilal Dedhia dated 17th July,2007 requesting inspection of the purported MOU and other relevant documents. Similarly, even the Advocate for Respondent Nos.2 and 3 sought inspection of the said MOU and denied that Respondent Nos.2 and 3 had executed any such MOU.

5. Thereafter, the Appellant’s Advocate on 21st July,2007 wrote to the said Shantilal Vershi Haria requesting inspection of the said MOU. To the said letter of Appellant’s Advocate, on 24th July,2007 Mr.Shantilal Haria sent a reply stating that the original MOU which was in his possession will be offered for inspection to both the sides.

6. In the meanwhile on 7th August,2007, the Arbitration Petition came to be filed under Section 9 of the said Act for an injunction pending the arbitration. In the said proceedings, on 17th August,2007, Mr.Haria filed an Affidavit stating that the Respondents had misrepresented and had taken a letter dated 17th July,2007 as if the original MOU was in his possession and stated that the same was not in his possession. On the very same day, the Respondent No.1 also filed an Affidavit denying any agree