The main legal point established in the judgment is that non-compliance with conditions for interim injunction does not lead to forfeiture of the right to seek appointment of an arbitrator, and the burden to prove waiver lies on the party alleging it.

( 1 ) IN this petition filed by the petitioners under Section 11 (4) of the arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Act ) prayer made is to the effect that an independent arbitrator in pursuance to clause 12 of the Agreement to Sell (for short `the Agreement ) dated 18th august, 2002 be appointed and disputes referred to him for adjudication.

( 2 ) THE petitioners claim that they are the bona fide purchasers of property No. 35, Block 205-B, known as 8, Babar Lane, Bengali Market, New Delhi measuring 330 sq. yds. According to them, the respondent had agreed to sell the aforesaid portion of the property to the petitioners for a total consideration of Rs. 28 lacs vide Agreement dated 18th August, 2002. The petitioners paid a sum of Rs. 6 lacs as earnest money. Rs. 5 lacs was paid to the respondent on 18th august, 2002 and Rs. 1 lacs was paid through post dated cheque and remaining consideration was to be paid on execution of lease deed. The respondent had also handed over physical and vacant possession of this portion of property to the petitioners which fact is also incorporated in clause 2 of the Agreement dated 18th August, 2002. As per the Agreement, the respondent was to take permission for sale from Landdo , Nirman Bhavan but he had failed to discharge this obligation and did not take steps for obtaining the requisite permission. The petitioners were constrained to give legal notices dated 10th January, 2004 and 28th January, 2004 but to no effect. The petitioners became suspicious that the respondent was backing out of the contract. This suspicion was confirmed when on 9th September, 2004 the petitioners came across a public notice published in the daily edition of the newspaper Hindustan Times. In this notice which was issued on behalf of Sh. S. Rivjit Singh Joher, B-35, Defence Colony, New delhi, general public was informed that entire property bearing No. 8, Babar lane, New Delhi was a subject matter of valid and subsisting Agreement to Sell dated 9th May, 2003 between Mr. H. N. Singh, Mr. Gurdeep Singh (respondent herein) and their brothers and the said Mr. Joher. The petitioners at that stage filed an application under Section 9 of the Act wherein exparte injunction order dated 29th September 2004 was granted subject to certain conditions, including the condition that the petitioners shall take steps for appointment of an arbitrator by filing an application under Section 11 which was not filed. The said application was dismissed on 17th May, 2005 primarily on the ground of non- payment of requisite deposit ordered by the court. This petition is, therefore, now filed for appointment of an arbitrator.

( 3 ) IN the reply filed by the respondent, few preliminary objections to the maintainability of this petition are taken. Notably among them, which were pressed at the time of arguments, are:" (a) In view of filing of petition by the petitioners under Section 9 of the Act and dismissal thereof the alleged arbitration agreement stands waived/abandoned/given up. (b) Existence of arbitration clause and valid contract is disputed which was disputed even in earlier proceedings. The petitioners have dishonestly created/forged/fabricated the Agreement as no such Agreement was ever executed. (c) The petitioners have concealed these facts and have not disclosed the complete facts and reasons because of which application under Section 9 (OMP no. 338/2004) came to be dismissed. It is highlighted that along with paper book served upon the respondent there is a document styled as receipt of payment of Rs. 1 lac which is dated 18th september, 2002. The said receipt does not find its incorporation either in documents filed along with the petition or as an averment in the petitioners list of documents. The respondent has placed reliance on copy of the said receipt. It is contended that reference to said receipt would make it clear that: (i) no agreement to sell ever came into existence eit