JUDGMENT :

Heard Mr. D. Baruah, learned counsel assisted by Ms. N. Upadhyay and Mr. S. Khound, learned counsel for the petitioner. Also heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. A.K. Rai and Mr. N. Alam, learned counsel for the respondents.

2. The present petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator for resolution of the disputes which according to the petitioner had arisen with the respondents, which however, has been contested by the respondents on the ground that the disputes are not arbitrable.

3. As per the law as it stands today, reference to arbitration is the norm and adjudication by the court/tribunal, the exception.

4. However, before we proceed to examine the matter on merit as to the arbitrability or non arbitrability of the disputes in the present case in the light of the law which has been laid down, it would be necessary to refer to the facts of the case briefly.

PLEA OF THE PETITIONER

5. The petitioner is a company incorporated and registered under the Companies Act, 1956 having its registered office at New Delhi and its regional office at Guwahati. Both the respondents No.1 and 2 are also companies incorporated and registered under the Companies Act, 1956 having their registered offices at Guwahati.

6. The Respondents No. 1 and 2 are joint owners, with 67.29% and 32.71% shares, of a plot of land measuring 9 (nine) Bighas 3 (three) Kathas and 3 (three) Lechas located in Guwahati. The petitioner and the two respondents had entered into a contractual arrangement for development of the property/plot of land owned by the respondents by executing a Joint Development Agreement (JDA) on 09.12.2009. As per the JDA, the petitioner, inter alia, was to develop a commercial-cum-office complex over the said property owned by the respondents, comprising of shopping mall, offices, multiplexes, residential complex and multistoried parking space on a turnkey basis with a plan duly approved by the competent authorities. Clause 1.2 of the JDA provided that as regards the completed constructed area and all the saleable and non saleable portions, the share of the Developer, the petitioner was 52.40% and the respondents as the owners was 47.60%.

7. It is the case of the petitioner that after the execution of the JDA, the petitioner company diligently undertook all steps, including surveying, designing, planning, getting the plan approved from the local authorities, financial arrangement as well as marketing of the project.

8. It is also the case of the petitioner that after execution of the JDA, it came to light that the respondents had certain ongoing legal disputes relating to the same property pertaining to which the JDA was executed, with one M/s Avani Projects and Infrastructure Ltd., which was not disclosed to the petitioner by the respondents. Because of the aforesaid legal disputes, the progress of the project was severely hampered. Resultantly, the petitioner had to execute a Supplementary Agreement on 04.03.2012 with the respondents as an offshoot of the JDA to mitigate time essence, conditions of squaring of liability of the company M/s Avani and Infrastructure Ltd. and other attending issues, under which, the period of completion of the project was revised and the petitioner was compelled to bear additional liabilities for payment to the said M/s Avani and Infrastructure Ltd., as per the Supplementary Agreement. The residential portion of the project was also converted into shopping/commercial units which entailed more expenses. Thus, the petitioner had to bear additional costs for completing the project which necessitated arranging funds from the banks/financial institutions and the borrowing limit was enlarged by the Supplementary Agreement.

9. The petitioner contended that subsequently, however, the project work could not be co