1 cra-471-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 471 OF 2011 Smt. Amina Mohd. Islam Momin and others .. Applicants Versus Sayyed Ahmed Mohammed Hasan Momin and another .. Respondents Ms. Vaishali Bhilare for the Applicants, Mr. Ramesh Duba Patil a/w Mr. Aswin Giri i/by Ms. Anita M. Vasani for the respondents. CORAM: R. M. BORDE, J. DATED : 18th August, 2011 P. C. 1. Rule. Rule made returnable forthwith. 2. With the consent of the learned counsel appearing for the parties, taken up for final disposal at the admission stage. 3. Heard Ms. Bhilare, the learned counsel for the petitioner and Mr. Patil, the learned counsel for the respondents. 4. The applicants-original defendants are raising 2 cra-471-11.sxw exception to the order passed by the IIIrd Joint Civil Judge, Junior Division, Bhiwandi on 28th March, 2011, below Exh.98 in Regular Civil Suit No. 401 of 2007. 5. The Respondents- original plaintiffs presented a suit claiming decree of perpetual injunction against the defendants-applicants herein. The defendants are the owners of the property involved in the dispute. They entered into a development agreement with the plaintiffs, with a view to develop the property and the plaintiffs have accordingly taken steps, in pursuance to the agreement. It is the contention of the plaintiffs that having received the substantial sum under the agreement, the defendants are trying to create a third party interest, which may create hindrance in the way of plaintiffs in developing the property. The plaintiffs, therefore, are constrained to file a suit against the defendants, claiming the decree of perpetual injunction, restraining the defendants from creating third party interest in relation to the suit property. 6. The defendants appeared before the trial Court in answer to the suit summons and challenged the jurisdiction 3 cra-471-11.sxw of the Court, by presenting an application Exh.13. It is pointed out by the defendants that the development agreement entered into between the parties contains an arbitration clause and thus, it is obligatory on the part of the plaintiffs to seek appointment of the arbitrator. The application tendered by the defendants raising objection to the jurisdiction of the court to entertain the suit has been turned down by the trial Court. As such, the defendants are constrained to approach this court by presenting the civil revision application. 7. I have heard the arguments advanced by the counsel, appearing for the respective parties and perused the record. 8. Clause 28 contained in the development agreement entered into between the parties states as below: “28. None of the parties shall commit breach of any of the provisions of this agreement. It is agreed that in case of any dispute between the parties regarding transaction, both the parties shall mutually agreed to get it solved through one arbitrator appointed by each. The decision of the arbitrators shall be final and binding upon both the parties.” 9. It is the contention of the plaintiffs that the apprehended act of the defendants of creating third party 4 cra-471-11.sxw interest in relation to the suit property do not come within the purview of clause- 28 of the agreement and, therefore, the Civil Court is perfectly within its bonds to entertain the suit. It is also contended by the plaintiffs that the defendants have taken evasive stand and have not admitted the agreement placed on record. The plaintiffs apprehend that the defendants may adopt a stand before the arbitrator objections to entertainability of the dispute by the arbitrator. 10. The counsel for the defendants, contends that the leaned trial judge has committed error in turning down the application tendered by the defendants. It is contented that having observed in the order that the defendants have tendered the application before filing their written statement, pointing out the clause relating entertaininabnility of the dispute by arbitrator. The application is entertainable. However, according to the trial court, dispute covered by the suit does not come within the ambit of clause 28 of the development agreement and as such, the dispute raised before the Civil Court is entertainable. 11. Clause 28 of the development agreement is very 5 cra-471-11.sxw specific and it brings within its fold, all the dispute between the parties regarding the impugned transaction. There can be no duel opinion as regards the entertainability of the instant dispute by the arbitrator to be appointed under clause 28 of the Agreement. The parties to the agreement have resolved to refer the dispute to the arbitrator in relation to the impugned transaction and both the parties shave also mutually agreed to get the dispute resolved through one arbitrator appointed by each. Clause 28 of the agreement also attaches finality to the decision of the arbitrator. 12. Considering the text of clause 28 of the development agreement, I am of the view that the dispute in the instant suit can be resolved by the arbitrator. The apprehension expressed by the plaintiffs- respondents herein as regards the proposed stand of the defendants is also misplaced. The counsel appearing for the applicants- original defendants, in terms, states before this Court that the original defendants agree the correctness of the agreement placed on record so also clause 28 contained in the agreement. It is also made clear by the defendants that the 6 cra-471-11.sxw dispute arising in the suit comes within the ambit of clause 28 and is arbitrable. In view of the statements made by the learned counsel for the defendants, on instructions, at bar, the apprehension expressed by the plaintiff respondent as regards the proposed stand of the defendants before the arbitrator appears to be misplaced. 13. In view of the reasons recorded above, the the revision application deserves to be allowed and the same is accordingly allowed. 14. The order passed by the III Joint Civil Judge, Junior Division, Bhivandi below Exh.98 in RCS No. 401 of 2007 on 28/3/2011, is quashed and set aside and the application Exh. 98 shall be deemed to have been allowed. 15. The parties shall be at liberty to invoke clause 28 of the agreement and seek appointment of the arbitrator. 16. Rule is accordingly made absolute. 17. There shall be no order as to costs. ( R. M. BORDE, J.)