JUDGMENT :

Soumen Sen, J.

1.The appeal is arising out of a judgment and order passed by the learned 2nd Court at Barasat in connection with an application filed under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘said Act’).

2. The dispute between the parties is arising out of a registered development agreement executed by and between the plaintiff, Samujjal Enterprise, the opposite party no.1 herein and the appellants on 6th January, 2014.

3. The appellant no.1 is a proprietorship firm represented by the appellant no.2. Initially a development agreement was entered into between the appellants with one Debjani Sarkar the original owner of the property in question on 6th January, 2014. Subsequently the owner transferred the property in favour of one Soma Singh on 19th May, 2015. Soma Singh by a registered deed of sale dated 13^th March, 2019 conveyed the property in favour of the plaintiffs/respondents. The plaintiff is the present owner of the property. The appellants alleged that Debjani Sarkar could not have transferred her interest in the suit property in favour of 3rd parties in supersession of the earlier agreement. It is submitted that the development agreement with Debjani contains an Arbitration Clause. Dispute arose between the present appellant and Debjani Sarkar in respect of the development agreement. Debjani was attempting to transfer her share and interest to the 3rd parties in breach of the said agreement. It was on such consideration the appellants filed an application under Section 9 of the said Act being Misc. case being no.173 of 2015 before the learned Additional District Judge, Barasat in which proceeding Debjani Sarkar appeared and during the pendency of the said application Debjani Sarkar transferred the suit property in favour of Soma who subsequently transferred the property in favour of the plaintiff and its partners. Debjani executed the said conveyance as constituted attorney of Soma and transferred the self-same property in favour of plaintiff and his partners.

4. The present plaintiff derived its title through Debjani and hence is bound by the arbitration agreement. On such facts an application was filed under Section 8 of the said Act for referring the parties to the dispute to arbitration.

5. The said application was contested by the plaintiff being the transferee from Soma Singh who had purchased the property from Debjani Sarkar during the pendency of the proceeding under Section 9 of the Arbitration and Conciliation Act.

6. The learned District Judge dismissed the application on the ground that the subject matter of the action brought in by the plaintiffs does not fall entirely within the ambit of the arbitration clause contained in the development agreement on 6th January, 2014. Moreover, the present plaintiff is not a party to the development agreement which contains an arbitration clause. The learned Single Judge relied upon the decision of the Hon’ble Supreme Court in Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya & Ors., (2003) 5 SCC 531: 2003 SCC OnLine SC 523 and held that there is no provision for splitting the cause or parties and referred the subject matter of the suit to the arbitrator in view of the law laid down in the said decision. The plaintiff is not a party to the arbitration agreement and it does not bind the plaintiff. The subject matter of the arbitration agreement does not include within itself the subject matter of the suit. The aforementioned development agreement was executed for the purpose of defining the terms of development of the suit property which is not the subject matter of contention in the present suit.

7. There is no provision under the Act for splitting cause or parties before referring the parties to arbitration. Moreover, the appellant nos. 1 and 2 have preferred the said application under Section 8 of the Arbitration and Conciliation Act long after the filing of their first statement on the substance of dispute.

8. Mr. D