1. By this application filed under section 11(6) of the Arbitration and Conciliation Act, 1996, the applicants seek appointment of arbitrator.

2. Mr. Madon, learned senior counsel appearing for the respondents raises a preliminary objection about maintainability of this application on the ground that the Memorandum of understanding dated 6th November, 2008 which contains an arbitration agreement, has not been stamped in accordance with the provisions of the Bombay Stamp Act, 1958. It is submitted by the learned senior counsel that the memorandum of understanding is required to be impounded in this proceedings and shall be sent for adjudication.

3. Some of the relevant facts for the purpose of deciding the preliminary objections raised by the respondents are summarized as under:

(a) It is the case of the applicants that the applicants and the respondents entered into a memorandum of understanding dated 6th Nov. 2008. Under the said document the respondents granted development rights of the property described under the said agreement to the applicants inter alia to construct a building on certain part of the property and to obtain TDR in respect of certain area affected as road in development plan of Mira Bhayander Municipal Corporation and other rights in respect of the said property including right to sell the premises in such building to be constructed on the said property, to receive TDR from the Municipal Council by surrendering such area affected by road and upon the terms and conditions set out in the said document for the consideration mentioned therein.

(b) It is the case of the applicants that the respondents vide their advocate's letter dated 15th December, 2010 called upon the applicants to perform the obligations mentioned in clauses 2, 3 and 10 of the said memorandum of understanding within a period of one month making such time of one month as an essence of contract and further mentioned that in default the respondents shall treat the said MOU/ contract as cancelled/terminated. The applicants vide their advocate's letter dated 6th January 2011 requested the respondents to fix up the joint meeting to finalize the plans and to take immediately necessary steps for submitting plans to the Municipal Corporation and to take positive steps for development of the property and construction of buildings thereon. By letter dated 5th February, 2011 sent through their advocates, the respondents purportedly terminated and cancelled the MOU dated 6th November, 2008. The applicants denied the allegations made by the respondents in their advocate's letter dated 5th February, 2011 by addressing a letter dated 7th June, 2011.

(c) The respondents in reply to the said letter, vide their letter dated 11th June, 2011 contended that the said MOU dated 6th November 2008 was only in the nature of “expression of interest”.

(d) The applicants vide their advocates letter dated 18th august, 2011 denied the said contentions. The parties thereafter entered into further correspondence. The applicants through their advocates letter dated 21st November, 2011 invoked clause 19 of the said MOU and appointed Mr. R.J. Ashar Architect as arbitrator and called upon the respondents to concur with the said name as arbitrator. The respondents vide their advocates letter dated 15th December, 2011 once again contended that the said MOU had already been terminated and therefore, the applicants were not entitled to invoke any of the terms and conditions including the arbitration agreement.

The applicants vide their advocate's letter dated 2nd January, 2013 denied the said contentions of the respondents.

(e) On 1st February, 2013, the applicants filed this application under section 11(6) of the Arbitration and Conciliation Act, 1996. On 19th January, 2013 the applicants herein filed an application under section 9 of the Arbitration and Conciliation Act, 1996 in the District Court at Thane (Civil Misc. Application No.21 of 2013). By an order dated 30th Au