The invocation of arbitration cannot be prevented due to the uncertainty of the appeal's outcome, and the lack of finality of the award before the arbitral tribunal would be a view on the matter on merits.

JUDGMENT

a. K. Menon, J. - The application seeks appointment of a Sole arbitrator pursuant to notice invoking clause 25 of a writing dated 23rd September, 2006 titled 'Heads of agreement'. The agreement is between the applicant in its earlier name Vishwaroop Infotech Private Limited and Homi Pheroze Ghandy-respondent no.1 and Kersi Pheroze Ghandy (since deceased). Respondent no.2 is the Executor of the Will of late Kersi Ghandy. Clause 25 of the agreement is the arbitration clause, which is reproduced below for ease of reference;

'25. In the event of any disputes or differences arising between the parties the same shall be referred to arbitration under the arbitration and Conciliation act, 1996.'

2. Vishwaroop Infotech Private Limited is now known as Wadhwa Group Holdings Private Limited. The notice invoking arbitration is dated 15th May, 2019, copy of which is at Exhibit 'G' sets out that disputes and differences have arisen between the parties and suggests the name of three persons all advocates of this court, one of whom is to be appointed as Sole arbitrator. The invocation letter is issued by the advocates for the applicant and which is seen to be addressed to the two respondents. The respondents have vide their letter of 13th June, 2019 contended that the notice is premature and the matter is yet decided conclusively and hence the notice is barred by Res Judicata since an appeal is pending before this court and being sub-judice, no arbitrator is required to be appointed. In view of this denial, the present application has been filed.

3. Mr. Khandeparkar who appears for the applicant has taken me through the facts which reveal that on 23rd September, 2006 respondent no.1 and late Kersi Ghandy had agreed to sell and assign the right, title and interest in immovable property described therein to the applicant for consideration of Rs.24 crores. after the disputes arose, Commercial arbitration Petition no.618 of 2012 came to be filed and vide an order dated 17th July, 2012 the High Court referred the disputes to a Sole arbitrator.

4. By his award dated 22nd april, 2013 the arbitrator dismissed the claim on the ground of limitation. By a separate award of 14th august, 2014 the Sole arbitrator dismissed the counter claim of the applicant on the ground of Res Judicata and limitation. Thereafter the applicant filed arbitration Petition no.487 of 2014 and 688 of 2015 under Section 34 of the act challenging both the aforesaid awards. On 22nd January, 2019 this court allowed arbitration Petition no.688 of 2015 and set aside the award dismissing the counter claim. Thereupon arbitration Petition no.487 of 2014 also came to be disposed since it did not survive. The respondent therein being aggrieved by the order of the Single Judge filed an appeal under Section 37 of the arbitration and Conciliation act on 22nd February, 2019 and that appeal is said to be pending.

5. During the pendency of the appeal, the applicant herein invoked arbitration as aforesaid. The application is opposed on behalf of the respondents on the basis that it is premature due to the pendency of the appeal. Mr. Khandeparkar submitted that notwithstanding pendency of the appeal, this application can proceed. In support of his contention, he relies upon a decision of the Delhi High Court in Decor India P. Ltd. v/s. National Building Const. Corpn. L. 2007 (97) DRJ 428(DB) in which he has relied upon the decision to demonstrate that there can be no automatic stay during the pendency of an appeal. He submits that as recorded in paragraph 15 of that judgment, there is no automatic stay in appeals or orders or decrees of suit, it cannot be contended that the legislature intended to provide protection to the defendants by providing automatic stay on filing an appeal under Section 37. Mr. Khandeparkar submits that the decision in Decor India (supra) deals with the situation that is presently faced by the parties. Mr.Khandeparkar submits that the respondent cannot prevent an arbitr