VBC 1 arp14.10-11.2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE ARBITRATION PETITION NO.14 OF 2010 Sudhir Gangadhar Borgaonkar & Anr. ...Petitioners. Vs. M/s.Amar Bharat Construction. ...Respondent. .... Mr.A.A.Garge for the Petitioners. Mr.R.D.Suryawanshi for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD, J. February 11, 2011. P.C. : A development agreement was entered into between the Petitioners and the Respondent on 6 December 2004 under which the Respondent was to provide a constructed area to the Petitioners. The case of the Petitioners is that under clause 2 of the agreement, the Respondent as developer was to provide the constructed area within 24 months of the grant of a commencement certificate by the Municipal Corporation. Clause 17 of the agreement provides for resolution of disputes by an arbitral tribunal to be constituted upon each party appointing one Arbitrator. According to the Petitioners, a commencement certificate was issued on 7 May 2007. On 20 February 2010, the VBC 2 arp14.10-11.2 Petitioners issued a notice to the Respondent invoking arbitration and nominated an Arbitrator. The Respondent in a reply dated 17 March 2010 stated that the construction under the development agreement could not be completed as a result of certain pending litigation and because of practical difficulties. 2. The Petitioners have instituted these proceedings under Section 11(6) of the Arbitration and Conciliation Act, 1996. In reply, the Respondent does not deny the existence of the arbitration agreement. However, it has been stated that a tenant of the Petitioners had instituted a litigation which had to be resolved and there were other practical difficulties in the execution of the work. It has been contended that there is no arbitrable dispute and that as a matter of fact, the Respondent is entitled to sue for damages. 3. From the material on record, it appears that there is no dispute about the validity of the agreement. Disputes have evidently arisen between the parties and the Petitioners have invoked the arbitration agreement. The defence of the Respondent VBC 3 arp14.10-11.2 is essentially on merits which has to be urged before the arbitral tribunal. However, there is no substance in the defence that there is no arbitrable dispute since ex-facie the narration of facts would reveal that disputes have arisen between the parties. 4. Both, Counsel appearing on behalf of the Petitioners and Counsel appearing on behalf of the Respondent are agreed in stating before the Court that in order to obviate delay and expense, it would be appropriate if a sole arbitrator is appointed with the consent of the parties and the Counsel. Accordingly, by consent Shri Justice R.G.Sindhakar, former Judge of this Court shall stand appointed as sole Arbitrator under the Arbitration and Conciliation Act, 1996. The Petition is accordingly disposed of. There shall be no order as to costs. 5. The Registrar (Judicial-I) shall forthwith communicate a copy of this order to the sole arbitrator together with a memorandum of address of parties. ( Dr.D.Y.Chandrachud, J.)