An arbitration clause in a previous agreement does not automatically extend to a subsequent agreement unless specifically referred to and included in the subsequent agreement covering the same transaction.

The petitioner seeks the reference of the disputes between the parties to arbitration on the strength of the arbitration clause contained in the agreement of sale executed by the parties on March 14, 2007.

2. It is not in dispute that the agreement for sale has ultimately culminated in a deed of conveyance being executed by the petitioner in favour of the respondent on December 8, 2008.

3. The respondent perceives that the construction undertaken by the petitioner was of poor quality and the petitioner is liable to compensate the respondent therefor. The respondent has instituted proceedings before the Consumer Forum to such effect. The petitioner has not applied under Section 8 of the Arbitration and Conciliation Act, 1996 before the Consumer Forum, but has invoked the arbitration clause contained in the agreement for sale by issuing a letter to the respondent wherein the petitioner's choice as the petitioner's nominee on the arbitral Tribunal has been indicated. The present request under Section 11 of the 1996 Act has been carried to the Chief Justice or his designate upon the respondent failing to respond to the notice or refusing to complete the constitution of the arbitral Tribunal.

4. The petitioner refers to a judgment reported at (2013) 4 WBLR Cal 186 (Shyam Shell v. West Bengal Minerals Development and Trading Corporation Limited) for the proposition that an arbitration agreement survives the matrix contract notwithstanding the termination or cancellation of the matrix contract. The proposition is elementary. It is without doubt that an arbitration clause contained in a matrix contract would survive notwithstanding the termination or expiry of the matrix contract, provided the arbitration agreement is not expressly co-terminus with the matrix contract.

5. However, the facts in the present case do not involve the principle cited by the petitioner. In this case, the parties have executed a subsequent document wherein there is no arbitration clause and the respondent suggests that since an agreement for sale is of limited import and that has culminated in a conveyance, the arbitration clause contained in the agreement for sale can no longer be cited for the purpose of adjudicating the disputes between the parties.

6. Without going into the other issues that may be pending in the Consumer Forum action and in the civil suit instituted by the petitioner herein pertaining to a subsequent document, it does not appear that upon the agreement for sale culminating into a deed of conveyance, the arbitration Clause contained in the agreement for sale survives in the absence of the deed of conveyance specifically referring to the arbitration clause in the agreement for sale and keeping it alive. The matters covered by the agreement for sale are now part of the deed of conveyance and the disputes pertaining to the transaction concluded by the deed of conveyance are not governed by any arbitration clause.

7. The culmination of an agreement for sale of an immovable property in a deed of conveyance executed for the transfer thereof cannot be equated with the expiry of a matrix contract containing an arbitration clause where the arbitration clause would survive notwithstanding the expiry of the matrix contract. An agreement for sale of an immovable property, by its very nature and irrespective of whether it is specifically enforceable, is an agreement preparatory to the transfer of the property upon the execution of the deed of conveyance relating thereto. Once the deed of conveyance is executed, the agreement for sale is over in all respects. Since the very basis for arbitration is the consensus between the parties thereto, an arbitration clause contained in a previous agreement can scarcely be read into the subsequent agreement by any doctrine of incorporation unless it is specifically referred to and included in the subsequent agreement covering the same transaction. The doctrine of incorporation may extend to the commercial term