JUDGMENT :

BIBHAS RANJAN DE, J.

1. The order no 20 dated 21.12.2022 passed by the Learned Civil Judge, Junior Division, 1st Court, Barasat, North 24 Parganas in connection with TS 907 of 2021 is challenged. Learned Judge by the order impugned allowed one application under Section 5 & 8 of the Arbitration and Conciliation Act, 1996 filed on 09.06.2022 along with written statement, for referring the subject matter of the dispute to arbitration.

Background facts in Brief:

2. Petitioner/plaintiff being owner of the subject property entered into a development agreement on 16.08.2010 with the opposite party/defendant to develop a multi storied building thereon, on condition to complete the development work within 36 months with additional period of 6 months from the day of execution of agreement. Accordingly, Registered General Power of Attorney was also executed between the parties. Thereafter, non performance on the part of the opposite party/defendant in terms of agreement compelled the petitioner/ plaintiff to cancel the registered power of attorney by a deed of cancellation dated 09.12.2021. Immediately, opposite party/defendant took possession of the land and installed a gate and also restrained petitioner/plaintiff from entering into the subject property. That is why, plaintiff/petitioner filed a suit being no. T.S no. 907 of 2021. In that suit Learned Trial Judge passed an interim injunction directing the parties to maintain status quo in connection with alienation of the same.

3. Feeling aggrieved, opposite party/defendant preferred one Misc. Appeal no. 4 of 2022. Learned Appellate Court vacated the order of interim injunction. Again petitioner/plaintiff preferred an application under Article 227 of the Constitution of India registered as C.O. 1831 of 2022 wherein Hon’ble Court modified the order of Learned Appellate Court directing preservation of the subject property under the possession of opposite party/defendant but not giving any right to create any 3rd party interest over the same till decision of the application for temporary injunction.

4. Opposite party/defendant filed an application under Section 5 & 8 of the Arbitration and Conciliation Act, 1996 along with written statement before the Learned Trial Judge in TS No. 907 of 2021 on 09.06.2022 with a prayer for referring the dispute to arbitration in terms of clause 39 of the development agreement dated 16.08.2010. Learned Judge allowed the application by referring the dispute to arbitration and stayed the Title Suit awaiting order of arbitral tribunal.

5. Learned advocate, Mr. Arnab Roy, appearing on behalf of the petitioner/plaintiff has advanced two fold arguments. In the beginning, Mr. Roy has submitted that the development agreement being compulsorily registrable, was not registered and the document is liable to be impounded. In support of his contention he relied on a case of M/s. N.N. Global Mercantile vs. M/s. Indo Unique Flame Ltd. and Others, 2023 SCC Online SC 495, SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited, (2011) 14 SCC 66 and Booz Allen and Hamilton Inc vs. SBI Home Finance Limited and Others, (2011) 5 SCC 532.

6. Mr. Roy, next, contended that application under Section 8 of the Arbitration and Conciliation Act, 1996 should have been filed before submission of first statement on substance of the dispute, in terms of the scheme of the act, while opposite party/ defendant already participated in the proceeding of the suit by filing a written statement.

7. Learned Advocate, Mr. Asim Kumar Roy, appearing on behalf of the opposite party/defendant has argued that the opposite party/defendant filed written statement along with petition under Section 5 & 8 of the Arbitration and Conciliation Act on the same day showing inclination to participate in the arbitral proceeding. In support of his argument, he relied on a case of Balasundarma Nagarajan vs. Mohan Kumar Thakur, 2020 SCC Online Kar 3434, Parasramka Holdings Pvt. Ltd. vs. Ambience P