1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.943 of 2010 M/s.Fiza Construction ... ... Petitioner (Orig. Plaintiff) v/s. Smt.Parvati K. Thakur & ors. ... Respondents (Orig. Respondents) Mr.A.Y. Sakhare, Sr.Advocate i/by Mr.Jeetendra Sachdev for Petitioner. Mr.P.S. Dani i/by Mr.Amol P. Mhatre for Res.Nos.1 & 2. Mr.P.K. Dhakephalkar, Sr.Advocate i/by Mr.Ajay S. Patil for Res.No.3. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 10th February, 2010 P.C. : 1.Rule, returnable forthwith. 2.The Petitioner has challenged the order of the learned 2nd Joint Civil Judge, Senior Division, Panvel, dated 8.1.2010 allowing the parties to go to arbitration as per the arbitration agreement between them. The parties entered into an Agreement for sale on 8.3.2008 in respect of the immovable property which was agreed be sold to the Petitioner herein. Clause 12 of the 2 Agreement is stated to be the arbitration clause by the Respondents herein, inter alia, against whom the Suit came to be filed in which the impugned order is passed. Clause 12 of the Agreement reads thus: The Agreement is prepared under the provisions of the Arbitration and Conciliation Act and all the terms and conditions of the Agreement would be decided as per the provisions of the Arbitration and Conciliation Act. It will have to be seen whether by this the parties specifically intended to refer their disputes to arbitration. The learned Judge has considered that intent. It was argued by the Plaintiff in the Suit (the Petitioner herein) that this clause is vague and does not reflect any such intention. 3.My attention has been drawn to the judgment in the case of Jagdish Chander vs. Ramesh Chander & ors., 2007 (5) SCC 719 in which the kinds of disputes that could be specifically referred to arbitration reflected from the intent of the parties in an agreement or a clause of the agreement were considered, the reflection of the intent being the material substance to be seen. The reference to the dispute expressly or impliedly made out showing the intention to go to arbitration was 3 mandatory. The illustrations given in that judgment as would constitute a clear agreement to refer the dispute to arbitration under Section 7 of the Arbitration and Conciliation Act, 1996 (the Act) would be where (i) it has been stated that the dispute shall be referred to arbitration, (ii) direct expression of intent is shown and (iii) the Agreement does not contain anything that detracts from the Arbitration Agreement. As against that, what agreements would not constitute an agreement to refer the dispute to arbitration are shown to be those agreements or clauses in which a fresh consent would be required, the parties would go to arbitration if they desire in future to refer the dispute, the parties may show that they would consider settlement in future, the clause shows the condition specified by the expression if the parties decided etc. Hence a desire or hope to have the dispute settled by arbitration or which required further consent or consensus of the parties would not show an agreement in presenti to refer the dispute to arbitration. Consequently, the word shall would be absent in the arbitration clause and word if would be shown suggesting a conditional circumstance when the parties may in future decide to refer the dispute to arbitration. 4.Similarly, in the case of Nilesh Sanghani vs. Rakesh 4 Zandga, 2008 (2) BCR 901 where a letter of resignation was sent to a company by its Director and was simpliciter signed by a party without complaining its contents, one of the paragraphs that stated that the valuation of a particular person would be final, constituted no agreement in writing between the parties, even by way of exchange of communication by fax, letter, e-mail, etc. and hence was held not to be an arbitration agreement , there being only a unilateral act of one of the parties. 5. Since the agreement of arbitration or clause in agreement does not require any particular form but only a claim to that end, which is not denied by other party and which would require the parties to submit their disputes to arbitration, the agreement clause would be enough for such purpose. Since in this case there has been no unilateral letter, but a development agreement containing a clause relating to arbitration and the parties decided therein that the entire Act would be applicable to them, the decision to make a reference thereunder is unmistakable and clear. In this case, the clause is precise, brief and clear. It shows the intention of the parties for the applicability of the Act itself with regard to their disputes. Hence it cannot be stated that there was no agreement in that behalf. 5 6.Consequently, the further judgments relied upon by the Petitioner s Advocate to show the circumstances in which those alleged arbitration agreement were held not to be so do not govern this case. One such case was the case of Bombay Isle Developers Pvt. Ltd. vs. Kamladevi Jagdish Diwan & anr., 2006 (5) Bom. C.R. 704 in which due to unrestrained construction and development activity the Plaintiff had to rush to Court and submit himself judicial adjudication. 7.It is contended that since there are other parties to the Suit the dispute cannot be referred to arbitration based upon the case of Sukanya Holdings Pvt. Ltd. vs. Jayesh H. Pandya & anr., 2003 (5) SCC 531. In that case, there were several disputes relating to a Partnership Firm as well as the disputes relating to development of properties. A part of the dispute only could be referred to arbitration with regard to some of the parties. Consequently, it was held that no bifurcation of the dispute between the parties could be made. That, of course, has been followed in the case of Mandabai Ananta @ Vaman Katkari vs. Rajesh Madhavi & ors. In Civil Revision Application No.86 of 2007, dated 26th June 2007. 8.In this case, the main dispute is between the Plaintiff 6 and Defendant Nos.1 and 2 (the Petitioner and Respondent Nos.1 and 2 herein). The other party is the later transferee. The agreement in favour of the transferee would be governed by and fall from the decision in case of an earlier agreement between the Plaintiff and Defendant Nos.1 and 2. There need be no bifurcation of any dispute. Rights of Defendant No.3 in the Suit would be dependent upon reference of the arbitration as much as it would be dependent upon the resolution of the Suit upon judicial adjudication. 9.Defendant no.4 in the Suit is CIDCO whose land is the subject matter of the dispute and which as a statutory Authority would be required to consent to the transfer. It is, therefore, a formal party and would abide the decision of the Arbitrator as much as the Court. 10.It is also contended that the application did not have any Annexure and is consequently against the mandate of Section 8(2) which required Defendant Nos.1 and 2 in the Suit to annex the original arbitration clause or its certified copy with its application for reference of the Suit to arbitration. Section 8(2) has been sufficiently complied inasmuch as the arbitration clause was well before the Court as a part of the agreement relied upon by the Plaintiff himself in the Suit. 7 11.It may be mentioned that the arbitration is one of the alternative modes provided for adjudication of dispute even in Section 89 of the Code of Civil Procedure. The special Statute in 1996, which repealed the earlier Arbitration Act, 1940 requires inter alia the Suit filed by parties in Courts to be disposed of upon a reference made under Section 8 of the Act. This is in keeping with the spirit of the culture of Alternative Dispute Resolution. The interpretation of the clauses relating to arbitration or agreement of arbitration must be made in keeping with such spirit. When any clause shows a reference to be made to arbitration under the Act or otherwise, the Courts would be loathe to construe the agreement between the parties such as to strike down their intent to refer their dispute to the alternative mode for its resolution. Once the Court sees that intent of the parties to resort to arbitration is clear, the forum does not matter. 12.Similarly once the arbitration clause itself is before the Court, further technicality of filing an arbitration agreement and annexing it with an application for reference of the dispute to arbitration becomes redundant. In such cases, Section 8(2) of the Act cannot be mandatorily construed. 8 13.For all the above reasons, the Writ Petition has no merit. It is dismissed. Rule is discharged. The status quo order shall continue for 2 weeks. 14.No order as to costs. (SMT.ROSHAN DALVI, J.)