ORDER

This petition is filed for appointment of a sole

Arbitrator relying upon the agreement for arbitration as contained in the Joint Development Agreement dated 13.11.2013. The agreement for arbitration reads as follows:

“Any dispute or difference which may arise between the parties with regard to the intents and meanings of this Deed or any part thereof or any; matters relating to the transaction shall be referred to a SOLE ARBITRATOR and the decision of the Sole Arbitrator to be appointed by the Parties in the manner provided under the Nature of Decision Making and the award of the sole arbitrator shall be binding on all the parties. The Indian Arbitration & Conciliation Act, 1996 together with all amendments and submission shall be applicable. Arbitration shall be subject to the jurisdiction of the

Bangalore City Civil Courts.”

2. This Court must, before adverting to the rival submissions, refer to agreements/deeds executed leading to this petition. These Deeds have been executed for development of the property described as bearing Corporation No.636 measuring 26,136 sq. feet situated in Horamavu, Bengaluru [the subject property]. The details of these agreements/

deeds, which are as follows:

[a] Joint Development Agreement dated

13.11.2013 and Contemporaneous General Power of Attorney dated

30.03.2016,

[b] Memorandum of Supplemental

Agreement dated 28.02.2014,

[c] Deed of Rectification of Joint

Development Agreement dated 30.03.2016 and Supplemental General Power of Attorney dated

30.03.2016,

[d] Memorandum of Understanding dated

04.04.2016 and

[e] Memorandum of Entry for Deposit of

Title Deed and Recording Equitable

Mortgage dated 31.03.2016.

After these agreements/ deeds, the first petitioner has executed a Gift Deed dated 19.08.2022 transferring the subject property in favour of the other petitioners, who are his wife and children. 3. It remains undisputed that the present controversy is because the subject property has not been developed with allegations being made against each other about interference with possession and the respondent asserting that, with payment of consideration as mentioned in the above-mentioned documents, it has acquired an undeniable irrevocable interest in the subject property. The respondent has also commenced the suit in O.S. No.2922/2023 impugning the Gift Deed dated 19.08.2022 and for declaration that its rights under the Joint

Development Agreement dated 13.11.2013 and the subsequent Deed of Rectification dated 30.03.2016 is valid and subsisting. The petitioners, who by then have filed this petition for appointment of a sole arbitrator, have filed an application in the suit under Section 8 of the Arbitration and Conciliation Act, 1996 [for short, ‘the Arbitration Act’] for reference of the dispute to arbitration.

4. When Sri. G S Venkata Subba Rao, the learned counsel for the respondent, is queried on whether the pendency of the application under Section 8 of the Arbitration Act in in O.S. No.2922/2023 can be a condition against the petitioner prosecuting this petition for appointment of an Arbitrator, he submits that it may not be. However, the learned counsel opposes the appointment of the Arbitrator on the following grounds:

[a] the first petitioner has executed the

Joint Development Agreement dated 13.11.2013 stating that he is the absolute owner of the subject property and the respondent’s transaction is only with the first petitioner,

[b] the other petitioners cannot be parties to the dispute and their interest in the subject property under the Gift Deed dated 19.08.2022, which is executed notwithstanding the Joint Development Agreement, must necessarily be decided in the pending suit in O.S. No.2922/2023,

[c] that the arbitration proceedings cannot be between those who are not parties to the agreement, and the other petitioners have not joined in the execution of the aforementioned

Agreements/ Deeds.

5. In response, Sri Mohammed Akhil, the learned counsel for the petitioners, submits that the other petition