The main legal point established is that the language of the arbitration agreement determines the scope of disputes that can be referred to arbitration, and in this case, the agreement provided for arbitration of 'any dispute' including specific performance.

Rajiv Sahai Endlaw, J.

1. I.A No. 10202/2008 of the defendant Nos. 1 and 2 under Section 8 of the Arbitration and Conciliation Act, 1996 in C.S. (OS) No. 463 of 2008.

2. The Counsel for the defendant Nos. 1 and 2, who now appears for defendant No. 3 as well, states that the defendant No. 3 is also a director of the defendant No. 1 and the application may be treated as on behalf of all the defendants. 2. No reply to the application has been filed by the plaintiff. However, the counsel for the plaintiff has handed over a reply in the Court and the same is taken on record.

3. The plaintiff has instituted this suit for specific performance of an agreement dated 26.4.2004 of sale of immovable property. The said agreement on page four thereof contains the following clauses:

That if the second party fails to make the payment of the balance amount as agreed upon, at the time of vacant physical possession and clear of NOC from the Land Acquisition Department, from date of this Agreement. The transaction will be considered as cancelled and the earnest money will be forfeited by the first party.

That if the first party refuse or fails to complete the bargain within the prescribed time the second party shall be entitled claim and receive double the amount of earnest money paid by him/her to the first party.

That if the first party infringes the terms and conditions of this agreement, the second party shall be entitled to get the implementation thereof effected through Court of law by specific performance of this agreement or any other law for the time being in force at the costs and risks of the first party or may rescind this agreement, and in that eventuality, the first party shall be liable and responsible for making good the losses which may be suffered incurred, undergone and or sustained by the second party as a result thereof and this Agreement between the party.

That in the eventuality of any dispute in between the parties on any manner incidental thereof the same shall be referred to an arbitrator appointed mutually and a decision of the arbitrator shall be final and binding in between the parties.

4. The defendants before filing the written statement have applied for the parties to be referred to arbitration.

5. The Counsel for the plaintiff has contended that the agreement between the parties provides for the plaintiff to approach a Court of law for specific performance of the agreement and thus contends that the clause for arbitration which appears later in position in the agreement, to the clause for specific performance by a Court of law, does not apply when the dispute is of specific performance. It is also contended that the relief of specific performance can be granted by the Court alone. The plaintiff contends that the defendants have already delayed the matter any if the matter is referred to arbitrator, the defendants are likely to delay the same further. The Counsel for the plaintiff has further contended that what can be referred to arbitration are only the disputes and the application of the defendants does not specify and dispute between the parties and for this reason also Section 8 of the Arbitration Act does not apply.

6. The agreement is between the defendant No. 1 acting through its directors defendant Nos. 2 and 3 and the plaintiff. The defendant Nos. 2 and 3 do not claim any independent right and have been impleaded in the suit also in their capacity only as the directors of the defendant No. 1. Thus, the parties to the present suit are the same arbitration agreement.

7. As far as the plea of the Counsel for the plaintiff with respect to the issue of specific performance being not referable to arbitration is concerned, the question has been settled in Olympus Infrastructure v. Meena Vijay Khaitan and Ors. [1999] 3 SCR 490 .

8. The contention that the dispute of specific performance was not included in the arbitration clause also cannot be accepted. The agreement provides for the consequences flowing