1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2874 OF 2008 IN SUIT NO. 1090 OF 2007 Shalini ramesh Parab ...Plaintiff Vs. Suresh Appa Parab & Ors. ...Defendants Mr. Kevic Setalvad i/b. Vimla & Co., for Plaintiff Mr. Milind More for Defendants 1 to 4 Mr. Atul Rajadhayksha i/b. M/s. Utangale & Co., for Defendants No.5 CORAM: SMT.ROSHAN DALVI, J. DATED: 10 TH OCTOBER, 2008 P.C. 1. This Notice of Motion is taken out by Defendants 1 to 4 upon the Plaintiff for referring the dispute in the suit to Arbitration. The reference to arbitration is contained in the clause under a declaration dated 20th January, 2004 signed by the Plaintiff and Defendants 1 to 4. The declaration annexed as Exhibit- K to the plaint is a document admittedly executed by these parties. It shows reference to the development agreement dated 23 rd August, 2000 for specific performance of which this suit is filed. If confirms the rights of the developer under that agreement, the period provided 2 for development, the fact that the property is not charged or encumbered in favour of any one else and also the vacant possession of “our shops” being 4 shops described therein to be given to the builder. 2. It is for this declaration that the parties agreed to refer the dispute to arbitration of Advocate Jog. The dispute under the clause for reference to arbitration was for differences of opinion as to interpretation of any of the “Clause or intention ”. 3. This suit is for specific performance of the agreement dated 23 rd August, 2000. The suit is essentially filed against the builder, Defendant No.5. Reliefs are claimed against the builder, Defendant No.5. The Plaintiff is not seeking any reliefs against Defendants 1 to 4, as an heir of her predecessor- in-title one Jankibai, who was the original owner of the property to be developed by the Defendant No.5. She would be entitled to 1/4 th share in the property which would have gone to Jankibai upon development. Consequently Defendants 1 to 4 are proportionately entitled to 3/4 th share. 4. The Plaintiff takes exception to the reference of the dispute in the suit to arbitration on the ground that the 3 reliefs prayed for in the suit do not relate to any of the clauses of the declaration and that the dispute in the suit is not only with regard to the parties to the declaration in which the arbitration clause exists, but also with regard to the builder who is not a party to the declaration. 5. The Counsel on behalf of the builder/Defendant No.5 however has agreed to go to arbitration. 6. Nevertheless the Arbitrator would have to decide the dispute only in terms of the arbitration clause and no further. The Plaintiff claims Specific performance of the Agreement dated 23 rd August, 2000 and essentially her 1/4 th share in the property which would have to be given by the builder to Jankibai, her predecessor- in-title. The Arbitrator would not be entitled or enjoined to decide that dispute unless all the parties now freshly agree to refer the present dispute to arbitration. 7. Consequent upon the judgment in the case of Sukanya Holdings Pvt.Ltd. Vs. Jayesh H. Pandya and another 2003 AIR SCC 531, this dispute relating to the aspect outside the arbitration clause and between the parties to the arbitration clause as also other parties cannot be referred to arbitration. Similarly as held in the case of India Household 4 and Healthcare Ltd. Vs. L.G. Household and Healthcare Ltd. 200(5) SCC 510 also this dispute falling outside the scope of the arbitration cannot be referred to arbitration. Hence, the Notice of Motion is dismissed. (SMT. ROSHAN DALVI, J.)