MANMOHAN, J.

I.A. 12076/2017 in CS(OS) 125/2017, I.A. 12079/2017 in CS(OS) 126/2017 and I.A. 12074/2017 in CS(OS) 127/2017

1. Present applications have been filed by the applicants-defendants under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “said Act”) for referring the disputes raised in the present suits to arbitration.

2. It is pertinent to mention that CS(OS) 125/2017, CS(OS) 126/2017 and CS(OS) 127/2017 have been filed by the plaintiffs for recovery of Rs.3,60,77,292.75,/- Rs. 3,52,49,060/- and Rs. 2,86,84,102/- respectively along with interest and permanent injunction.

3. In the applications, it is averred that Clause 6.16. of Apartment Buyer’s Agreement dated 27th October, 2009 as well as Clause 21 of the Maintenance Agreement provides that in the event of any question, dispute or difference arising under the said Agreements, the dispute shall be referred to Arbitration. According to learned counsel for the applicants-defendants, as there is a dispute between the parties, the matter needs to be referred to arbitration. The relevant portion of the arbitration clause contained in the Apartment Buyer’s Agreement dated 27th October, 2009 is reproduced hereinbelow:-

"6.16. Settlement and Arbitration:

6.16.1. The parties hereto have agreed that all disputes and/or differences between any two or more of the Purchaser/s Applicants, Allottees, Apartment Owners, Association of Apartment Owners and/or the Company in any manner connected herewith or arising here from shall be referred to the independent and sole arbitration of an Arbitral Tribunal (Tribunal) appointed by the Board of Directors of the Company, whose decision will be final and binding on the parties to the reference. The arbitration will be in accordance with the Arbitration and Conciliation Act, 1996 or any statutory modification or enactment thereto for the time being in force..."

4. Learned counsel for the applicants-defendants stated that Clause 13 of the Conveyance Deed dated 26th September, 2014 stipulated that all the terms and conditions enumerated under the Apartment Buyer’s Agreement dated 27th October, 2009 shall be deemed to have been incorporated in the said Conveyance Deed and therefore the arbitration clause being Clause 6.16 of the Apartment Buyer’s Agreement forms a part of the conveyance deed.

5. Learned counsel for the applicants-defendants stated that after the dismissal of the applications filed by the defendants under Order VII Rule 11 CPC on 7th September, 2017, the defendants had referred the disputes between the parties to the sole arbitration of Hon’ble Mr. Justice K.K Lahoti (Retd.) in accordance with the aforesaid arbitration clauses. He pointed out that the written statements were filed without prejudice to the right of the defendants to refer the present disputes to Arbitration. In support of his submissions, he relied upon the following judgments:-

(A) Kalpana Kothari Vs. Sudha Yadav & Ors., (2002) 1 SCC 203:-

"8. .........In striking contrast to the said scheme underlying the provisions of the 1940 Act, in the new 1996 Act, there is no provision corresponding to Section 34 of the old Act and Section 8 of the 1996 Act mandates that the judicial authority before which an action has been brought in respect of a matter, which is the subject-matter of an arbitration agreement, shall refer the parties to arbitration if a party to such an agreement applies not later than when submitting his first statement. The provisions of the 1996 Act do not envisage the specific obtaining of any stay as under the 1940 Act, for the reason that not only the direction to make reference is mandatory but notwithstanding the pendency of the proceedings before the judicial authority or the making of an application under Section 8(1) of the 1996 Act, the arbitration proceedings are enabled, under Section 8(3) of the 1996 Act to be commenced or continued and an arbitral award also made unhampered by such pendency. We ha