1. Rule. Heard finally with the consent of learned Counsel for the parties.

2. The petitioners are the original plaintiffs who have filed suit for declaration that the respondent – defendant has made excess construction than permissible under law and that the defendant has no right to transfer the excess construction made by him. Further relief sought is to correct the Deed of Declaration dated 14-10-2008 as well as the subsequent sale deeds dated 26-4-2012. Other ancillary reliefs have also been sought in the suit. In that suit, the defendant filed an application under Section 8 of the Arbitration and Conciliation Act 1996 (for short, the Act of 1996) praying that in view of Clause No.19 in the Deed of Declaration the disputes ought to be referred to an Arbitrator. By the impugned order the trial Court allowed that application and directed the parties to refer the disputes to the Arbitrator. Being aggrieved the plaintiffs have challenged the aforesaid order.

3. In the plaint it is the case of the plaintiffs that initially the father of the defendant was the owner of the suit property which was land at Nazul Sheet No.49/B. After his death the defendant became owner of the said property. The defendant intended to construct apartments on the suit land and thus approached the Municipal Council for sanctioning the map. The map was accordingly sanctioned on 20-6-2007. In accordance with the provisions of the Maharashtra Apartment Ownership Act, 1970 (for short, the Act of 1970) a Deed of Declaration was registered on 14-10-2008. The plaintiffs entered into an agreement with the defendant to purchase two flats on the fifth floor of the said apartments. Similarly, the plaintiff no.3 agreed to purchase a flat on the third floor. Subsequently, sale deeds were executed in favour of the plaintiffs. According to the plaintiffs, they found that there was excess construction made by the defendant which was not in consonance with the sanctioned plan. This excess construction to the extent of about 1250 square feet was part of Hall “A”, Hall “B” and Hall “C” jointly. The plaintiffs therefore called upon the defendant to correct the revenue records and provide amenities in accordance with the Deed of Declaration, but the same was avoided. On that basis the plaintiffs filed the aforesaid suit seeking reliefs mentioned herein above.

4. Along with the suit the plaintiffs filed an application for temporary injunction seeking to restrain the defendant from alienating in any manner Hall “A”, “B” and “C” of the apartments. The defendant in turn filed an application below Exhibit14 under Section 8 of the Act of 1996 praying that in view of Clause No. 19 in the Deed of Declaration dated 14-10-2008 the disputes were required to be referred to arbitration. According to the defendant, there was a efficacious remedy available to the plaintiffs and as the plaintiffs were party to the Deed of Declaration the said arbitration clause was binding. This application was opposed by the plaintiffs on the ground that the suit was maintainable and considering the reliefs as sought, the dispute was not liable to be referred to arbitration. By the impugned order, the trial Court held that in view of Clause No. 19 in the Deed of Declaration the parties ought to be referred to the Arbitrator. Accordingly, by the impugned order dated 20-1-2015 the trial Court allowed the application at Exhibit14. Being aggrieved the plaintiffs have challenged that order.

5. Shri R. L. Khapre, the learned Counsel for the petitioners – plaintiffs submitted that the trial Court committed an error in accepting the prayer made by the defendant for referring the dispute to arbitration. According to him, the reliefs sought in the suit were not of such nature that could be resolved through arbitration. He referred to the averments made in the plaint and urged that the reliefs sought in the suit were in the nature of reliefs in rem and not reliefs in personam. The suit pertained to immoveabl