The 1940 Act applied to arbitral proceedings commenced before the 1996 Act, and the Court upheld the validity of the agreement and the arbitration clause.

M.M. Kumar, J. - The legal representatives of Sultan have filed the instant petition under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenging concurrent findings recorded by both the Courts below. Both the Courts below have allowed the petition filed by the respondent-firm under Section 20 of the Arbitration Act, 1940 (for brevity, 1940 Act) in view of the arbitration clause 11 of the arbitration agreement dated 2.4.1986 Ex.P3. Both the Courts have further held that the dispute was liable to be referred to the arbitration of Mr. Kapil Sibal as per the agreement between the parties.

2. Brief facts of the case necessary for disposal of the instant petition are that on 3.4.1989 Civil Suit No. 17 was filed by the respondent-firm M/s Puri Construction (P) Ltd. claiming that the petitioner had approached the firm through the property dealers for sale of land situated at Village Wazirabad, District Gurgaon. The detailed description of the land is given in paragraph 3 of the petition. The respondent-firm agreed to buy this land at the rate of Rs. 1,95,000/- and on 2.4.1986 an agreement to sell was executed by Sultan (now represented by his legal representatives - petitioners) in favour of the respondent-firm. There are usual terms and conditions in the agreement to sell. However, the respondent-firm claimed in its petition under Section 20 of 1940 Act that there was an agreement for referring any dispute between the parties to the arbitration of Mr. Kapil Sibal, Senior Advocate C-I, Maharani Bagh, New Delhi. The respondent-firm further alleged that it has always been ready and willing to perform its part of the contract. However, the petitioner had avoided to execute the sale deed. Claiming that the dispute was liable to be referred to the arbitration of Mr. Kapil Sibal, the petition was filed for issuance of direction to the petitioner to file the arbitration agreement and for referring the matter to the sole arbitration of Mr. Kapil Sibal.

3. In reply, the stand taken by the petitioner was that the petition filed by the respondent-firm was time barred. The ownership of the land, the agreement to sell dated 2.4.1986 and part payment of sale consideration by the respondent-firm were not disputed. However, it was asserted that the respondent-firm had failed to execute the sale deed for want of funds. The petitioner also opposed the assertion that there was an arbitration clause and that the name of Mr. Kapil Sibal has been interpolated lateron without the knowledge and consent of the petitioner. It was further claimed that in cases where there is an agreement for reference of dispute to an arbitrator, the agreement cannot be treated as complete and enforceable unless the name of the arbitrator is duly filled in.

4. Both the Courts below have found that the suit under Section 20 of 1940 Act was instituted by the respondent-firm through its authorised agent Mr. Mohinder Singh Puri who had duly signed and verified the petition. It was further found that there was no interpolation by adding the name of Mr. Kapil Sibal and the agreement dated 2.4.1986 Ex.P3 was valid. It contained a valid arbitration clause. In pursuance to arbitration clause 11 in agreement dated 2.4.1986 Ex.P3, both the Courts below directed that the dispute be referred to the sole arbitration of Mr. Kapil Sibal. The parties were directed to file their claim/counter claim. The view of the learned Appellate Court on the issue concerning the agreement to sell Ex.P3 dated 2.4.1986 reads as under :-

"There can be no denial to the fact that mere marking of an exhibit on a document does not dispense with its proof. The statement of Mahinder Puri P.W.1 as it stands also does not appear to be sufficient to prove this document. However, in the circumstances of this case, the petitioner was not obliged to lead any other evidence to prove the document. The peculiar circumstance of this case is the admission of Sultan Singh appellant of the e