The court's role under Section 11 of the Arbitration and Conciliation Act is limited to confirming the existence of an arbitration clause, leaving substantive disputes for the arbitrator.

% 03.04.2024

1. This is a petition filed under Section 11 of the Arbitration and Conciliation Act , 1996 seeking appointment of an Arbitrator to adjudicate the disputes between the parties.

2. The Arbitration Clause is contained in the Deed of Assignment dated

27.02.2008 which reads as under: “21. Arbitration- Any claim, controversy or dispute arising out of or under this Deed not settled by mutual Deed of the parties involved within 30 days after a party is provided written notice for settlement thereof, shall be referred to arbitration to a sole arbitrator jointly appointed by the parties under the Indian Arbitration and Conciliation Act of 1996. In the event the parties are unable to agree upon a sole arbitrator, the claim, controversy or dispute shall be referred to a panel of three arbitrators, one of whom shall be appointed by the Original Developer one by the Assignee Developer and the third to be appointed by the aforesaid two arbitrators. The arbitration proceedings shall be conducted in New Delhi, India and shall be governed by and construed in accordance with the laws of India. The language of the arbitration shall be English. The costs and expenses of the arbitrator(s) and holding the arbitrator shall initially be borne in equally by the Assignee Developer and Original Developer. Initially each party will bear its own legal, travelling and other similar costs. However, the arbitrator(s) may in his/their award, require any party to pay such costs as the arbitrator(s) think fit, including the costs and expenses of the arbitration, travel, costs and advocates fees. The parties shall be entitled to specific performance of all the terms of this Deed.”

3. As there were disputes between the parties, the petitioner invoked the arbitration vide Legal Notice dated 19.10.2022. Since the disputes were still pending, the present petition has been filed.

4. Mr. Deshmukh, learned counsel for the respondent No. 1 states that in the present case, the petitioner does not have the land in question and hence the Deed of Assignment has already worked itself out.

5. He draws my attention to a Sale Deed, wherein the petitioner has sold the subject land to respondent No. 1. He states that the arbitration petition is not maintainable as the land in question has already been sold to the respondent No. 1 and challenge to the Sale Deed has already been dismissed by the learned Civil Judge and as well as Appellate Court, Faridabad.

6. This defense of the respondent No. 1 shall be adjudicated by the learned Arbitrator. This Court at the stage of Section 11 is only required to see the existence of an arbitration clause between the parties.1

7. Another aspect which requires to be noticed is that a similar objection was taken in ARB.P. 1230/2021, wherein the Coordinate Bench noted the existence of the Sale Deed dated 11.01.2010 and similar arguments in the judgment dated 27.04.2023. It reads as under:- “(bc) Cause of action will start from the date of knowledge of the registered Sale Deeds qua the Project Land- that the sale deeds dated January 11, 2010 qua the whole of the project land were executed in favour of the respondent No. l by the Petitioner Group. The Petitioner Group claims that they obtained the knowledge about the registered sale deeds on September 30, 2013. It is his submission that even if it is assumed that the Petitioner Group had obtained the knowledge of the registered sale deeds on September 30, 2013, the limitation for invoking arbitration seeking 10% of the built-area arose on September 30, 2013 i.e., when the Petitioner Group obtained the knowledge that the entire project land was transferred to the respondent No.l. Therefore, the limitation expired in September 2016 and accordingly, the invocation of the arbitration agreement in December, 2019 is barred by limitation; also, during the course of the arguments, the counsel for the Petitioner Group had also contended that the built-area was sold to the re