The appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act requires only a prima facie examination of the arbitration agreement's existence, with mixed questions of law and fact reserved for the Arbitral Tribunal.

JUDGMENT :

HARISH VAIDYANATHAN SHANKAR, J.

1. The present petition has been filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996, A & C Act, seeking the appointment of a Sole Arbitrator in terms of Article 34 of theApartment Bu yer’s Agreements dated 22.01.2016 and 12.03.2016, [Apartment Buyer’s Agreements].

2. Petitioner Nos. 1 and 2 are husband and wife, residing in New Delhi. Respondent No. 1 is a company incorporated under the Companies Act, 1956, and is engaged in the business of real estate development and construction of residential and commercial projects in New Delhi and its adjoining areas. Respondent Nos. 2 and 3 are Directors of Respondent No. 1-Company and are stated to be responsible for its affairs and representations made to the Petitioners.

3. In January 2016, the Petitioners came into contact with Respondent Nos. 2 and 3, acting on behalf of Respondent No. 1, in relation to a residential project titled “Iramya Heights”, stated to be located at Plot No. 42, Sector-13, Dwarka, New Delhi, 3 project

4. It is averred that Petitioner No. 1, vide cheques dated 11.01.2016 and 18.01.2016, paid sums of Rs.1,00,000/- and Rs.8,46,000/- respectively towards booking and part consideration for a 2 BHK residential apartment along with one car parking space in the said project.

5. It is further stated that between 22.02.2016 and 25.02.2016, Petitioner No. 1, on behalf of Petitioner No. 2, made additional payments aggregating to an amount of Rs.11,55,000/- towards booking and part consideration for a second 2 BHK residential apartment with a car parking space in the same project. The said payments were duly acknowledged by the Respondents through the issuance of receipts.

6. Pursuant to the aforesaid payments, an Apartment Buyer’s Agreement dated 22.01.2016 was executed between Petitioner No. 1 and Respondent No. 1 in respect of the first apartment, and a separate Apartment Buyer’s Agreement dated 12.03.2016 was executed between Petitioner No. 2 and Respondent No. 1 in respect of the second apartment.

7. The aforesaid Apartment Buyer’s Agreements contain an arbitration clause, being Article 34, which provides that all disputes arising out of or in relation to the Apartment Buyer’s Agreements shall, upon failure of amicable settlement, be referred to a Sole Arbitrator for adjudication.

8. On the same respective dates as the Apartment Buyer’s Agreements, i.e., 22.01.2016 and 12.03.2016, Deeds of Guarantee were also executed by Respondent No. 1 in favour of the Petitioners. Under the said Guarantees, Respondent No. 1 assured, inter alia, a return at the rate of 15% per annum on the amounts invested, payable upon expiry of 24 months from the respective dates of execution of the Apartment Buyer’s Agreements.

9. The Petitioners contend that the Respondents neither commenced nor completed construction at the project site, nor delivered possession of the allotted apartments and car parking spaces. It is further alleged that the Respondents failed to refund the invested amounts together with the assured return of 15% per annum, as contractually guaranteed.

10. It is stated that between January 2018 and May 2018, the Petitioners addressed multiple emails to the Respondents seeking refund of the principal amounts along with the assured returns. By email dated 05.03.2018, the Respondents indicated that arrangements were being made to process the refund and that a timeline was under consideration.

11. Subsequently, by email dated 07.06.2018, the Res