The court emphasized the importance of consistency in challenging the existence of an Arbitration Agreement and upheld the findings of the Arbitrator regarding ownership and possession rights.

Navin Chawla, J.

This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') has been filed by the petitioner challenging the Arbitral Award dated 21.02.2015 passed by the Sole Arbitrator adjudicating the disputes that have arisen between the parties in relation to the Partnership Deed dated 01.06.1989 executed between the petitioner no.2 and the respondent.

2. The bone of contention between the parties is in relation to possession of shop situated at property bearing No.2360A, Main Patel Nagar, Shadi-Khampur, New Delhi-110008 (hereinafter referred to as the 'shop').

3. The respondent had earlier filed a suit against petitioner no.2, being Suit No.134/2007. In the said suit, the petitioner no.2 filed an application under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 (CPC) read with Section 5 of the Act seeking dismissal of the suit in view of the presence of an Arbitration Agreement between the parties in the Partnership Deed. It is important to note that the said application was filed by petitioner no.1 as a Power of Attorney holder of petitioner no.2.

4. The suit filed by the respondent was dismissed by the Court of Additional District Judge, Delhi vide order dated 17.07.2008 on the ground of there being an Arbitration Agreement in existence between the parties.

5. The respondent, thereafter invoked the Arbitration Agreement between the parties vide notice dated 12.11.2008. The petitioners in their reply dated 28.11.2008, however, now denied the existence of the Arbitration Agreement between the parties and challenged the veracity of the Partnership Deed. Petitioner No.2 also claimed that the shop was in possession of petitioner no.1 in his independent right.

6. Faced with this reply, the respondent filed yet another suit, being CS No.212/2009, before the Court of District Judge(West), Delhi, claiming recovery of possession of shop and damages/mesne profits. In this suit both the petitioners herein were impleaded as defendants.

7. The petitioners filed an application before the Court seeking dismissal of the above suit on the ground of it being barred by principle of res judicata in view of the earlier dismissal of the suit vide order dated 17.07.2008. This application was allowed by the Court of the Additional District Judge, Delhi by order dated 30.09.2009 thereby dismissing the suit.

8. The respondent challenged the above order by way of an appeal before this Court, being RFA No.110/2010. This Court by an order dated 23.07.2010 passed the following order:

"Counsel for parties agree that an arbitrator may be appointed to adjudicate upon the disputes and differences, and claim and counter claims of the parties, subject to liberty to the parties to raise all objections which may be available to them in accordance with law. It is also agreed that a retired Additional District Judge, may be appointed as a Sole Arbitrator. Accordingly, Justice J.P. Singh, a former Judge of this Court [Cell No.9810053190] is appointed as the sole Arbitrator, to adjudicate upon the disputes and differences, and claim and counter claims of the parties. Parties shall be at liberty to raise all objections, which may be available to them in accordance with law. Counsel for the respondent submits that the fee of the learned Arbitrator be paid by the petitioner. The fee of the Arbitrator is fixed at Rs.l.00 lac, which shall be shared between the parties, at the first instance, subject to final order which may be passed by the Arbitrator. In view of the stand taken, the judgment and decree is set aside. Parties shall be bound by the statement made by their respective counsel in court today. Accordingly, the appeal stands disposed of. Trial court record be sent back forthwith."

9. In view of the above, the arbitration proceedings commenced before the Arbitrator.

10. On the pleadings of the parties, the following issues were framed by the Arbitrator:

"1. Whether there is /was any valid partn