The Court clarified that deletion of a party from proceedings under Section 9 of the Arbitration and Conciliation Act does not preclude the invocation of the arbitration clause against the deleted party. The Court also emphasized the importance of the specific reference to the relevant agreement in the invocation notice.

JUDGMENT :

By this petition, filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, the petitioner has approached this Court seeking appointment of a sole arbitrator for resolution of disputes between the parties.

2. The learned counsel for the petitioner has handed over an affidavit of service showing that the respondent No.2 was served by Courier as well as by email. In the order dated 7/12/2022, it was inadvertently recorded that the learned counsel representing the respondent No.1 was also representing respondent No.2, but it is clarified by the learned counsel for respondent No.1 that he has no instructions to appear on behalf of respondent No.2. In any case, service is affected on the respondent No.2, but it has chosen not to appear before this Court. The respondent Nos.1 and 3 are duly represented by counsel.

3. The brief facts leading up to filing of this petition are that the parties entered into an agreement dated 27/4/2002, whereby development rights were granted to respondent No.2, to develop the property of the petitioner. The agreement was signed between the petitioner and the respondent No.2. The documents on record further show that by agreement dated 22/7/2004, again executed between the petitioner and the respondent No.2, the said respondent was granted development rights with certain additions and variations as compared to the aforesaid earlier agreement.

4. Thereafter, on 20/5/2006, an agreement was executed between the petitioner, respondent No.1 and respondent No.2, whereby development rights were granted to respondent No.1 and possession of the property also stood handed over to respondent No.1. On 13/7/2006, a deed of confirmation was executed between the parties and it was specifically stated therein that the aforementioned agreement dated 20/5/2006, stood confirmed and executed as if the same was executed between the parties to the deed of confirmation and that the said earlier agreement was to be taken as full and complete evidence of its execution and that it would be acted upon.

5. For the purpose of this petition, Clause 14 of the agreement dated 20/5/2006, assumes significance, for the reason that it provides for arbitration, in case of any dispute between the parties.

6. It appears that disputes indeed arose between the parties and the petitioner filed Special Civil Suit No.1400/2010, before the Court of Civil Judge, Senior Division, Pune, for a decree of cancellation of the agreements, specifically pleading that the agreement containing the arbitration clause was procured by means of fraud. There were specific allegations made against the respondent No.3 regarding fraud and collusion. In the said suit, the respondent No.1 moved an application under Section 8 of the aforesaid Act, relying upon the arbitration clause and sought direction to refer the parties to arbitration. This application was resisted on the part of the petitioner. By order dated 19/7/2011, the aforesaid Court allowed the application and directed the petitioner to invoke the process of arbitration, in the light of Clause 14 in the agreement dated 20/5/2006.

7. Aggrieved by the said order, the petitioner filed Writ Petition No.7838/2011, before this Court, which was dismissed by order dated 18/3/2015. Aggrieved by the same, the petitioner approached the Supreme Court. By a detailed judgment and order dated 19/8/2020, the Supreme Court dismissed the appeal and confirmed the orders passed by the Court below and this Court.

8. In this backdrop, the petitioner moved an application on 4/9/2020, under Section 9 of the aforesaid Act before the Court of District Judge, Pune, seeking certain directions against the respondents, as regards carrying out development activities and creation of third party rights in respect of the property in question. During the pendency of the said application, filed under Section 9 of the said Act, on 25/9/2020, the petitioner filed a pursis stating that it did not wish to prosecute the applicatio