ORDER :

1. Heard on the question of admission and interim relief.

In this petition under Article 226 of the Constitution of India, the petitioner has challenged the validity, propriety and legality of the order dated 26.10.2023 passed in Arbitration Case No. 03/2022 by the Sole Arbitrator whereby the application filed by the petitioner under Section 16 of the Arbitration and Conciliation Act, 1996 (referred to as the ‘Act of 1996’ hereinafter) has been dismissed.

2. The brief facts of the case are that the petitioner Company and respondent No. 1 had entered into a Memorandum of Understanding (MoU) on 01.12.2017 in respect of construction of model house on 11 plots in a residential colony developed by the petitioner. The MoU contains an arbitration clause for dispute resolution.

3. Certain dispute arose between the parties in relation to the performance of the terms of the MoU and therefore, the respondent No. 1 approached this Court by filing A.C. No. 71/2021 seeking appointment of Arbitrator under Section 11 of the Act of 1996. The said application was allowed vide order dated 11.11.2022 appointing Hon’ble Justice (Retd.) Shri S.K. Kulshrestha as the Sole Arbitrator.

4. The petitioner filed an application before the Sole Arbitrator under Section 16 of the Act of 1996 on the ground that an arbitration clause contained in an unstamped document cannot be acted upon, with a prayer that respondent No. 1 be directed to pay the stamp duty in respect of the MoU. Vide order dated 26.10.2023, the said application came to be dismissed by the Sole Arbitrator holding that the MoU was in the nature of an agreement to sale whereby the possession was not given and therefore, the stamp duty of Rs. 1,000/- was required to be paid. Since, Rs. 1,000/- has already been paid, therefore, there is no question of insufficiency of stamp duty.

5. Being aggrieved, the petitioner has approached this Court by filing the present writ petition assailing the impugned order on the ground that the same has been passed by the Sole Arbitrator in complete violation of constitutional mandate laid down by the five-judges constitutional bench of the Apex Court in case of N.N. Global Mercantile Pvt. Ltd. vs. Unique Flame Ltd. and Others, (2023) 7 SCC 1.

6. Learned counsel for the petitioner further contended that the MoU is not a simple agreement for sale of plot but it is an agreement for sale with a stipulation for construction covered by Article 6(d)(i) of the Indian Stamp Act. He further submitted that in similar facts and circumstances, one Virendra Modi had filed W.P. No. 25217/2022 before this Court and this Court was pleased to grant stay in that case.

7. Per contra, learned counsel for the respondent has filed reply to the petition raising preliminary objection with regard to maintainability of the writ petition either under Article 226 or 227 of the Constitution. The present petition has been filed being aggrieved by the dismissal of their application under Section 16 of the Act of 1996. Learned counsel for the respondent submitted that there is no remedy under the Act of 1996 against dismissal of the application under Section 16. It is only after passing of the final award that the issue can be raised in appeal under Section 34 of the Act of 1996. In support of his contention, learned counsel for the respondent relied on the judgment of the Apex Court in case of Deep Industries Ltd. vs. Oil and Natural Gas Corporation Ltd. and Another, (2020) 15 SCC 706 wherein the aforesaid position has been settled as follows:

“............The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34. What the High Court has done in the present case is to invert this statutory scheme by going into exactly the same matter as was gone into by the arbitrator in the Section 16 applicati