ORDER

Defendants in the suit filed the above revision against the order dated 08.11.2022 in I.A.No.283 of 2021 in O.S.No.47 of 2020 on the file of VI Additional District Judge, Kakinada.

2. Suit O.S.No.47 to 2020 was filed by the plaintiffs for recovery of an amount of Rs.98,30,000/- with subsequent interest from the date of suit and costs.

3. The averments in the plaint, in brief, are that plaintiffs are the absolute owners of the plaint schedule property; that plaintiffs jointly purchased the schedule property under two different sale deeds; that plaintiffs entered into Development Agreement with the 1st defendant represented by 2nd defendant on 28.10.2009; that the developer should only construct five floors including ground floor within 21 months; that 1st defendant did not complete the construction even after the grace period; that plaintiffs addressed a letter in the month of May, 2013 to 1st defendant expressing intention to cancel the development agreement and later issued legal notice dated 19.06.2013 regarding the completion of construction and cancellation of development agreement and it was contended that the arbitration clause stands cancelled; that 2nd defendant got issued reply dated 27.06.2013; that plaintiffs gave another notice dated 22.07.2013 to the 2nd defendant that they are not interested in the development agreement; that the defendant got issued reply dated

03.08.2013 assuring the construction would be completed; that before the elders defendants agreed to complete the entire construction by 30.12.2017, however, defendants failed to keep up their word; that plaintiffs have to complete the construction on their own; that the unfinished work comes to Rs.800/- per square feet; that as per the development agreement, defendants have to pay liquidated damages at Rs.3,000 per square yard; that the defendants sold their share in the flats in the apartment; that defendants did not complete number of works; that plaintiffs are entitled to liquidated damages at Rs.800/- per square feet and hence, filed the suit for reliefs stated supra.

4. Defendants, before filing written statement, filed I.A.No.283 of 2022 under Section 8 (1) of Arbitration and Conciliation Act to refer the dispute to arbitrator under the provisions of Arbitration and Conciliation Act.

5. In the affidavit filed in support of the petition, it was contended interalia that upon presentation of the plaint, Court issued summons and the suit stands posted to 29.12.2021; that the recovery of damages was sought for on the strength of the recitals in the Development Agreement dated 28.10.2009; Clause No.30 of agreement contemplates arbitration clause; that the agreement was filed along with the suit and hence filed the application.

6. Respondents/Plaintiffs filed counter and opposed the application. In the counter it was contended interalia that the suit is filed for recovery of liquidated damages since the defendants failed to comply with the conditions laid down in the development agreement; that Clause No.30 of agreement is with regard to the disputes arising out of any quality of the construction, service and efficiency etc.; that in the notice dated 19.06.2013 plaintiff requested the defendants to refer the matter to the mutually agreed arbitrator to resolve the issue; that having received the notice defendant did not come forward to appoint an arbitrator till the filing of the suit; that defendants failed to appoint an arbitrator within 30 days from the date of request made by the plaintiff before filing of the suit and hence the petition is not maintainable under law and prayed the court to dismiss the application.

7. By order dated 08.11.2022, the Court below dismissed the application. Aggrieved by the same, the above revision is filed.

8. Heard Sri A.Radha Krishna, learned counsel for the petitioners and Sri V.S.R.Anjaneyulu, learned senior counsel representing Ms.Vangala Sailaja, learned counsel for the respondents.

9. Learned counsel for the petition