QALLABHBHAI HIMANTBHAI PATEL Vs. BHAGWANBHAI NARANBHAI PATEL

JUDGEMENT

(1.) PRESENT application has been preferred by the petitioner herein - one of the defendant of Civil Suit No. 68 of 2005 pending in the Court of learned Civil Judge (S. D.), Bhavnagar under Section 11 of the Arbitration and Conciliation Act, 1996 to appoint one Shri Odhavji Ravjibhai Monpara and/or to appoint any other arbitrator with respect to the dispute between the parties as related to dispute i. e. specific performance vis-a-vis the contract involved i. e. agreement to sale dated 10. 11. 2004

(2.) IT is not in dispute that for the very agreement to sale dated 10. 11. 2004 respondent herein has filed Civil Suit in the Court for specific performance of said agreement to sale in which the petitioner is also one of the defendant. Therefore, it is not in dispute that in the said suit there are other defendants also who are partners of partnership firm - Bapasitaram Company of which the petitioner is also one of the partner. Therefore, in the said suit subject matter is disputed agreement to sale of which specific performance is sought. It is not in dispute that other defendants are not party to the arbitration agreement. It is true that earlier when the application was submitted for appointment of arbitrator, all the defendants were joined but subsequently all those other defendants were deleted and only the applicant came to be continued in the arbitration proceedings. Therefore, the subject matter of the dispute which is sought to be referred to the arbitrator is subject matter of aforesaid Civil Suit. In view of the fact that it is alleged that some of the defendants to the aforesaid Civil Suit are not party to the arbitration agreement and/or agreement to sale, entire dispute is not capable of being referred to the arbitrator for arbitration.

(3.) IDENTICAL question came to be considered by the Hon'ble Supreme Court in the case of Sukanya Holdings Pvt. Ltd. v/s. Jayesh H. Pandya reported in AIR 2003 SC 2252 (relevant para - 7,14 and 15 ). Aforesaid decision of the Hon'ble Supreme Court further came to be considered by the Hon'ble Supreme Court in another subsequent decision in the case of Atul Singh and Ors. v/s. Sunil Kumar Singh and Ors. reported in 2008 AIR SCW 570. In the case of Sukanya Holdings Pvt. Ltd. (supra), the Hon'ble Supreme Court in para 7, 14, 15 and 16 has observed and held as under :