JUDGMENT :

(Moushumi Bhattacharya, J.) :

1. The petitioner prays for appointment of an arbitrator in this application under section 11 of The Arbitration and Conciliation Act, 1996.

2. The petitioner is a Developer and the respondents are the owners of an immovable property situated at Dalimtala Lane, Kolkata. The petitioner was to develop the property described in the Agreement and the developed property was to consist of both the Owners’ as well as the Developer’s Allocations. The petitioner claims to have done substantial work in terms of the Agreement. The petitioner also claims to have made payment of Rs. 32 lakhs towards refundable security deposit to the respondents. The respondents terminated the Development Agreement on 12.2.2019. The petitioner claims that the respondents however waived the termination and allowed the petitioner to continue performing the Agreement. The petitioner invoked the arbitration clause in the Agreement by a Notice dated 28.4.2023 under section 21 of the 1996 Act. The respondents refused to agree with the petitioner’s nomination of an arbitrator and the present application was thereafter filed on 24.8.2023.

3. Learned counsel appearing for the respondent Nos. 3 and 4, namely Sunita Jaiswal and Binod Kumar Jaiswal, takes 3 preliminary objections to the maintainability of the application.

4. The first of such objections is the absence of a proper Notice under section 21 of the Act. The second is that the application is barred by the law of limitation and third that there can be no specific performance of an unregistered Agreement in respect of an immovable property in view of section 49 of the Registration Act, 1908.

5. With regard to the first objection, counsel submits that the Notice dated 28.4.2023 was admittedly served only on the respondent no. 4 and the petitioner caused another notice to be served on the respondent nos. 1 and 2 on 4.7.2023. Counsel submits that section 21 of the Act requires the Notice to be served on all the parties to an arbitration agreement. It is also submitted that the respondents replied to the Notice of invocation and clearly spelt out that there was no live dispute between the parties and that the petitioner had also failed to describe the nature of the dispute in the invocation Notice. Counsel relies on sections 3, 4, 21 and 43(2) of the 1996 Act in support of his contentions.

6. Counsel submits that the Agreement dated 12.11.2011 was terminated by the Notice dated 12.2.2019 and the petitioner replied to the Notice of termination on 6.3.2019. According to counsel, the cause of action admittedly accrued on 12.2.2019 while the present application was filed in August, 2023 after more than 4 years from the accrual of the cause of action. Counsel relies on Article 54 of The Limitation Act, 1963 to say that the prescribed period of limitation for specific performance of a contract is 3 years and that the time would start to run from the date when the petitioner had notice of the termination.

7. Counsel relies on section 49 of The Registration Act, 1908 to urge that there can be no specific performance of a contract in respect of an immovable property. It is submitted that the Development Agreement is an unregistered document which was required to be registered under section 17 of The Registration Act, post termination.

8. Counsel also urges that the petitioner has suppressed the fact of the petitioner being struck off from the records of the Registrar of Companies, West Bengal as well as other documents including the petitioner’s reply to the letter of termination issued by the respondents.

9. Learned counsel appearing for the respondent nos. 1 and 2 objects to the section 21 notice on the ground that the contents of the said notice are not sufficient. According to counsel, the petitioner had merely stated that the respondents have repudiated the Agreement. The other submissions made by counsel are on the merits of the matter.

10. Learned counsel appearing for the pe