Mohammad Rafiq, J.

This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short 'the Act') has been filed by the applicant, M/s. BVM Projects Pvt. Ltd., a company registered under the Companies Act, 1996 having its registered office at New Delhi, through its authorised representative Shri Ravinder Bakshi.

2. Facts as averred in the application are that an agreement to sell dated 03.08.2004 was executed by Respondents No. 1 to 5 through their attorney Ghanshyam Singhal in favour of a company namely M/s. Hind Enterprises Pvt. Ltd. for sale of the land admeasuring 100 acres, i.e. 160 bigha falling in Village Mahala situated in Jaipur. Aforesaid land was agreed to be purchased @ Rs.4,00,000/- per bigha and total sale consideration was Rs.6,40,00,000/-. M/s. Hind Enterprises Pvt. Ltd. assigned all the rights, title and interest and due amount of money in respect of the aforesaid agreement to sell dated 03.08.2004 to the applicant company. While a Memorandum of Understanding dated 30.01.2005 was signed between them, separate assignment deed dated 08.04.2005 was also prepared. Till the time of execution of agreement to sell dated 03.08.2004, which was signed by Respondent No. 1 for himself and as a constituted attorney on behalf of other respondents, i.e. respondents No. 2 to 5, total amount of Rs.65,00,000/- was paid to the respondents as per details given in the application. The respondents represented that aforesaid land was free from all encumbrances and they had all the rights to transfer and/or convey the rights, interest and title in the aforesaid property. In addition to amount of Rs.65,00,000/-, another amount of Rs.35,00,000/- was also paid to the respondents as per the terms and conditions of the agreement to sell. It was also agreed by the respondents that they would obtain NOC and all other permissions from the competent authorities requisite for the sale of the aforesaid land within 15 months w.e.f. 28.06.2004, i.e. on or before 28.08.2005. Clause 14 of the agreement to sell dated 03.08.2004 provided that in case of any dispute or difference, the parties shall try to settle the same amicably, failing which the matter shall be referred to arbitration under Indian Arbitration and Conciliation Act, 1996 and both the parties shall appoint one arbitrator on their behalf and if required a third arbitrator, to act as an umpire. Instead of obtaining NOC within the time, Respondent No. 1 met representative of the appellant on 30.01.2005 and explained that since the substantial inalienable right in ownership of the land by virtue of part performance of the agreement to sell dated 03.08.2004 was vested in them, therefore, he proposed a viable business proposition by which both the parties could gain substantially as the price of the land had increased.

3. Mr. Shyam Kant Sharma, learned counsel for the appellant submitted that in terms of representation given by Respondent No. 1, the parties entered into a fresh Memorandum of Understanding dated 30.01.2005 to resolve the issue amicably. It was agreed that all the rights/equitable rights out of the agreement to sell dated 03.08.2004 stood released on agreeing that the amount of Rs.1,00,00,000/-, which was paid to the respondents shall be returned along with Rs.2,00,000/- per bigha for 160 bigha, i.e. Rs.3,20,00,000/-. Thus, total amount of Rs.4,20,00,000/- was to be paid by the respondents within seven months from the date of execution of the MoU. The respondents, however, paid only a sum of Rs.43,00,000/- against clear receipt and a sum of Rs.3,77,00,000/- was still required to be paid. It was agreed in the Memorandum of Understanding that time was essence thereof and in case the respondents fail to pay the amount which was due within the specified time, the applicant would be at liberty to sell 62 bigha with frontage on the Main Highway 600 ft. from side nearer to Ajmer. The respondents paid a sum of Rs.57,00,000/- on 07.10.2005 and paid furthe