SUBAIR S S Vs. DLF HOME DEVELOPERS LTD

JUDGEMENT

(1.) This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 to appoint an arbitrator for resolving the dispute between the Petitioners and Respondents 1 and 2 in respect of Ext. A-2 agreement for sale dated 21-2-2008 entered into between the Petitioners and Respondents 1 and 2.

(2.) The case of the Petitioners is that an extent of 7.83 acres of land in Kakkanad Village belonged to Respondent No. 4 and five others. The owners entered into Ext. A-1 agreement dated 8-2-2008 with the Petitioners agreeing to sell the Property at the rate of 3.5 lakhs per cent of land. It is contended that on the basis of Ext. A-1 agreement, the Petitioners entered into Ext. A-2 agreement for sale dated 21-2-2008 with the first Respondent, to sell the property to the first Respondent or its nominee, at the rate of 5.5 lakhs per cent. It is contended that except 1.26 acres of land on the rear side of the property, the rest of the property was assigned by the owners to Respondent No. 3, the nominee of Respondent No. 1. According to the Petitioners, they had provided a bridge across a canal for the entrance to the property and that is the only entrance to the property. The property having road frontage was sold to the nominee of Respondent No. 1 under different documents and the balance remaining is an extent of 1.26 acres of land.

(3.) On 27-1-2009, Respondent No. 4 and another co-owner sent Ext. A-3 notice to the Petitioners and the first Respondent requesting them to perform the agreement for sale. The Petitioners also sent Ext. A-4 notice dated 16-3-2009 to the first Respondent requesting to comply with the terms of the agreement. The Petitioners and the fourth Respondent filed O.S. No. 303 of 2009 on the file of the Sub Court, Ernakulam for specific performance of the agreement for sale. In that suit, Defendants 1 and 2, who are Respondents 1 and 3 in the Arbitration Request, filed Ext. A-5 application praying to dismiss the suit as not maintainable in view of the arbitration clause contained in the agreement for sale and to refer the Plaintiffs and Defendants 1 and 2 for arbitration. O.S. No. 303 of 2009 was dismissed accepting the contention of Respondents 1 and 3 herein and the parties were directed to resort to arbitration. Thereafter, Ext. A-6 notice dated 9-11-2009 was issued by the Petitioners to Respondents 1 to 4, in which a panel of three persons to be appointed as arbitrator was suggested. As per Ext. A-7 notice dated 27-11-2009, the first Respondent declined the request made by the Petitioners. The first Respondent contended in Ext. A-7 that the fourth Respondent is not the absolute owner of the property. The request for referring the disputes to arbitration was rejected by the first Respondent. In these circumstances, the Petitioners filed this Arbitration Request.