Singhania Buildcon Private Limited vs Merlin Projects Limited
2026 Latest Caselaw 318 Chatt

Chattisgarh High Court

Singhania Buildcon Private Limited vs Merlin Projects Limited on 11 March, 2026

Author: Ramesh Sinha

Bench: Ramesh Sinha

                                         1




                                                       2026:CGHC:11713


                                                                      AFR

            HIGH COURT OF CHHATTISGARH AT BILASPUR


                              ARBR No. 23 of 2024

Singhania Buildcon Private Limited Through Its Authorised Signatory Shri

Subodh Singhania Aged 55 Years, R/o 05 School Road, Choubey Colony,

Raipur, Chhattisgarh

                                                                --- Applicant

                                      versus

1 - Merlin Projects Limited A Company Incorporated Under The Provisions Of

The Companies Act 1956 And An Existing Company Under The Companies

Act 2013 Having Its Registered Office At Merlin Oxford, 2nd Floor, 22 Prince

Anwar Shah Road, Police Station Charu Market, Kolkata - 700033 Through Its

Director Shri Sushil Mohta.

2 - Archees Real Estate Through Its Sole Proprietor, Meenali Singhania, W/o

Subodh Singhania Aged 50 Years, R/o 05 School Road, Choubey Colony,

Raipur, Chhattisgarh.

                                                           --- Respondent(s)

For Applicant : Mr. Sumant Das, Senior Advocate, Assisted by Ms. Anu Mishra and Mr. Kaif Ali Rizvi, Advocates.

For Respondent No. 1 : Mr. Abhishek Sinha, Senior Advocate assisted by Mr. Ghanshyam Patel and Mr. Saptarshi Datta, Advocates.

For Respondent No. 2 : Mr. Rajeev Shrivastava, Senior Advocate assisted by Mr. Akash Shrivastava, Advocate

Archees Real Estate Through Its Sole Proprietor Meenali Singhania, W/o

Subodh Singhania, Aged 50 Years, R/o 05 School Road, Choubey Colony,

Raipur Chhattisgarh.

---Applicant

Versus

1 - Merlin Projects Limited A Company Incorporated Under The Provisions Of

The Companies Act, 1956 And An Existing Company Under The Companies

Act, 2013 Having Its Registered Office At Merlin Oxford, 2nd Floor, 22 Prince

Anwar Shah Road, Police Station Charu Market, Kolkata- 700033 Through Its

Director Shri Sushil Mohta

2 - Singhania Buildcon Private Limited Through Its Authorized Signatory Shri

Subodh Singhania, Aged 55 Years, R/o 05 School Road, Choubey Colony,

Raipur, Chhattisgarh.

--- Respondent(s) For Applicant : Mr. Rajeev Shrivastava, Senior Advocate assisted by Mr. Akash Shrivastava, Advocate For Respondent No. 1 : Mr. Abhishek Sinha, Senior Advocate assisted by Mr. Ghanshyam Patel and Mr. Saptarshi Datta, Advocates.

For Respondent No. 2 : Mr. Sumant Das, Senior Advocate, Assisted by Ms. Anu Mishra and Mr. Kaif Ali Rizvi, Advocates.

Hon'ble Mr. Ramesh Sinha, Chief Justice

Order on Board

11/03/2026

1. Heard Mr. Sumant Das, learned Senior Advocate, Assisted by Ms. Anu

Mishra and Mr. Kaif Ali Rizvi, learned counsel {for the applicant in ARBR

No. 23/2024 and respondent No. 2 in ARBR 22/2024}, Mr. Rajeev

Shrivastava, learned Senior Advocate assisted by Mr. Akash Shrivastava,

learned counsel {for the applicant in ARBR No. 22/2024 and respondent No.

2 in ARBR No. 23/2024}, Mr. Abhishek Sinha, learned Senior Advocate

assisted by Mr. Ghanshyam Patel, and Mr. Saptarshi Datta, learned counsel

for the respondent-Merlin Projects Ltd.

2. By these petitions under Section 11(6) of the Arbitration and Conciliation

Act, 1996 (for short, the Act of 1996), the applicants seek a relief of

appointment of a Sole Arbitrator in view of the provisions of the Act of 1996

and the subsequent amendments thereof from time to time read with clause

46 of the agreement dated 16.03.2007 between the parties for resolution of

the disputes arising under the said agreement.

3. The facts, as projected by the applicants are that they are owners and are in

possession of various parts and parcels of the land {as detailed in

paragraph 2 of the petition} situated at Kota near Hotel Piccadilly, Raipur.

The applicants-Archees Real Estate and Singhania Buildcon Pvt. Ltd.

entered into an agreement with the respondent-Merlin Projects Ltd. on

27.11.2005 for development of a project named 'Singapore City' comprising

of residential and commercial buildings in the parcel of the land situated at

village Kota, near Hotel Piccadilly, Raipur. The parties agreed to create a

Special Purpose Vehicle (for short, the SPV) for the said work. The parties

entered into a subsequent agreement dated 16.03.2007 after the lands of

the applicants were freed from all encumbrances and sanction for layout

and land development permissions were jointly obtained by the applicants,

thus, a joint venture was created by the applicants and the respondent No. 1

in the name of "Singhania Merlin Estate". The agreement dated 16.03.2007

enumerates the formation of the joint venture as well as the conditions under

which the Joint venture will operate. The relevant terms and conditions of

the agreement were (a) the name of the firm was Singhania Merlin Estate

(b) The actual value of the said property was agreed at a sum of Rs.160 per

sq ft and the same is to be handed over in joint venture and the same was to

be deposited in the account of the applicants by the respondent No. 1 as

price of the said property; (c) The total land owned by and in possession of

the applicants is 8,37,613 sq ft. (d) The total amount of the price of the land

was fixed for a sum of Rs.13,40,18,080.00; (e) The agreement further

stipulates that the land of the applicants will be treated as the capital of the

applicants and the respondent No. 1 will introduce funds for commencing

the work of the proposed project matching the capital of the applicants after

which the proceeds from the sale of flats in the residential block of the

project shall be distributed; (f) According to clause 17 of the agreement, if

the respondent No. 1 fails to match the capital investment of the applicants

by 30.09.2008, the respondent No. 1 will be bound to pay an interest on the

balance amount at the rate of 12% p.a. to the applicants up to 31.03.2009

and the interest on the remaining amount from 01.04.2009 will be at the rate

of 21% p.a.; and (g) As per the terms of the agreement all the decisions

regarding the working of the joint venture will be taken by the parties in

consonance with each other.

4. Apart from other obligations recorded in the agreement dated 16.03.2007,

the parties in Clauses 46 of the said agreement have recorded that any

dispute in between the parties and counter proceedings and hearings shall

take place only at Raipur, Chhattisgarh in accordance with the provisions of

the Arbitration and Conciliation Act, 1996. The applicants and the

respondent No. 1, entered into a further agreement in the nature of

Indenture of Partnership on 30.03.2007. The said agreement also contains

an arbitration clause which states that "All disputes which arise between the

partners of their respective personal representatives whether during or after

the determination of the partnership or whether in relation to the

interpretation of these presents or to any act or omission of any party to the

dispute or either of these or in relation to any other matter whatsoever

touching the partnership affairs shall be referred to arbitrators, one to be

nominated by each party in difference and if the arbitrators so appointed

differ they will refer the matter to an. UMPIRE to be chosen by the

arbitrators and every such reference shall be deemed as an Arbitrator

under the Indian Arbitrator and Conciliation Act and the provision of the

said act or statutory modification thereof for the time being in force shall

apply.

5. Subsequently, the parties by way of three several agreements two of which

dated 31.03.2007 and another dated 31.03.2008 formed the partnership

business in the name of the 'Singhania Merlin Estate with effect of

commencement from 17.03.2007. It is pertinent to state that by the

agreement dated 31.03.2008, the parties refereeing themselves as partners

agreed to purchase/acquire certain other land as more fully mentioned in the

said schedule appended thereto. The parties set up an office at GE Road,

Behind Hotel Piccadilly, Raipur, in order to carry on the development work

at Raipur. Such Office was to look after the said 'Singapore City Project"

which was the only purpose/ venture of the said legal relationship of the

parties hereto.

6. Mr. Rajeev Shrivastava and Mr. Sumant Das, learned Senior Advocates

appearing for the respective applicants submit that the respondent No. 1

has failed to comply with the terms and conditions mentioned in the

agreement dated 16.03.2007 and has willfully breached the contract. The

discrepancies of the respondent No. 1 against the agreement dated

16.03.2007 are as under:

a) As per clause 11 of the agreement dated 16.03.2007, the

respondent No. 1 was liable to pay an advance amount to the

applicants against their capital investment to the tune of

Rs.1,01,00,000/- by 30.07.2007. However, the respondent No. 1 has

failed to pay the aforementioned amount to the applicants.

b) As per clause 14 of the agreement dated 16.03.2007 the respondent

No. 1 has agreed to pay the balance consideration of the land to the

applicants between 01.04.2007 to 30.09.2008 but the respondent No.

1 has to comply with this clause till date.

c) Apart from the non-payment of the respondent No. 1 against the

land of the applicants, the respondent No. 1 has not only willfully

breached the payment schedule agreed upon by the parties as per

clause 30 of the agreement but also no interest was ever paid by the

respondent No. 1 as stipulated in clause 17 of the agreement.

d) As per clause 21 of the agreement dated 16.03.2007 the parties had

agreed to make any and all decisions regarding the working of the

project in consonance with each other, however, the respondent No. 1

never consulted the applicants and made the decisions unilaterally

which was detrimental for the project.

e) As per clause 40 of the agreement dated 16.03.2007 the respondent

No. 1 was solely responsible to raise the building and thus it was upon

the respondent No. 1 to arrange contractors, laborers as well as to

procure all the materials and equipment that were needed for the

construction, but the respondent No. 1 failed to depute an competent

team of contractors, suppliers, laborers, etc. to complete the

construction work in the agreed upon time frame due to which the

buyers of the projects suffered and the goodwill of the applicants was

hampered.

f) The respondent No.1 also failed to invest adequate funds for the

construction of the project in scheduled time which caused great

distress to applicants, and the applicants were left with no other option

than to obtain loan from the bank for completing the project even

before the investment of both sides were at par, this action of the

respondent No. 1 is in complete contradiction to clause 42 of the

agreement dated 16.03.2007 which was agreed by the respondent

No.1.

g) Due to delay and non-infusion of funds for development of the

project by respondent No. 1 in terms of the agreement executed, this

led to substantial delay in the completion of the project and thereby the

applicants incurred substantial losses.

7. Learned Senior Advocates submit that out of the total land shown in

Schedule I and II of the agreement of partnership dated 30.03.2007 only

3,60,590 sq. ft. as mentioned in Schedule I of the land was the capital

contribution made by the applicants, subject to receipt of full consideration

from the respondent No. 1. However, no registered document was executed

in favour of the partnership firm for lack of receipt of full agreed

consideration within stipulated time period. Against this land of 3,60,590 sq.

ft., an amount of Rs.74,15,762/- was paid as interim capital to the

applicants. On account of non-receipt of full consideration, the Schedule I

land of 3,60,590 sq. ft was never registered in the name of the alleged

partnership firm. Furthermore, the agreement dated 30.03.2007 having its

nomenclature as partnership agreement provided for the ratio of profit and

loss was fixed to be divided amongst the parties in following manner:

Singhnia Buildcon Pvt. Ltd. 56%, Archees Real Estate 4% and Merlin

Projects Limited 40%. From the execution of such agreements and till date

though, the respondent No. 1 as a developer/building contractor was

obliged to complete and take steps in accordance with the agreement as

granted in its favor, however, it is absolutely evident from the records that

they have failed and neglected to do so within 18 months of time. Time was

always of essence in the agreement and therefore interest clause was also

incorporated for delay. In fact, time and again the applicants had called

upon and have requested the respondent No.1-Merlin Projects Limited to

complete the said project in terms of the layout approval, however, the same

has fallen deaf ears. As on date the respondent No.1 could only complete

construction on approximately 2,44,340 sq. ft of land by way of 7

Residential Blocks and there are still 3 more residential blocks of Phase I of

the project which are yet not constructed by the respondent No. 1 on the

total area of 3,60,590 sq. ft. relating to Phase 1 of the 'Singapore City'

project at Kota, Raipur. The respondent No. 1 in an attempt to tarnish the

goodwill of the applicants and to paint a negative image of the applicants

made false allegations against the applicants stating that they both

approached various brokers at Kolkata behind the back of the respondent

No. 1 to commence another project at Kolkata while abandoning the one at

Raipur. Furthermore, the respondent No. 1 also made a false allegation

against the applicants that they trespassed in the office of the partnership

firm and forcefully took all the books of account of the firm, however, the

respondent No. 1 has not been able furnish any evidence to support the

bald allegations made against the applicants. The acts of the respondent

No. 1 are a clear indication of the malafide intent of the respondent No. 1.

The respondent No. 1 by committing the aforementioned acts is simply

trying to commence the arbitration proceedings at Kolkata as against the

agreed venue and seat of, arbitration at Raipur as per Clause 46 of the

agreement dated 16.03.2007, in order to gain an undue advantage over the

applicants. On a combined and comprehensive reading of the Promoter

Builder Agreement and the partnership agreements as executed between

the parties hereto, it would be evident that the sole purpose of the execution

of such agreements was for the purpose of developing the land as owned by

the applicants herein which are situated at Kota, Raipur, Chhattisgarh.

Therefore, the only business of the partnership is for the development of the

said land situated at Raipur only. Thus, breach of the agreement by the

respondent No. 1 who has defected and continues to affect development of

the land and the projects. It is worth noting that the development and

construction work on the said land has been halted by the respondent No. 1

since 2012 and the respondent No. 1 has been in continuous breach of the

agreements. All of a sudden, the applicants were served with a copy of an

order dated 06.04.2024 along with an application under Section 9 of the Act

of 1996, registered as Misc. Case (Com) 97 of 2024. The respondent No. 1

without having any just and probable cause filed an application under

Section 9 of the Act of 1996 before the learned Commercial Court at

Alipore, Kolkata on 03.04.2024 in order to frustrate and harass the

applicants. The respondent No. 1 under the aforementioned application has

invoked the arbitration clause mentioned in the agreement dated

30.03.2007 and has deliberately suppressed the existence of an arbitration

clause under the agreement dated 16.03.2007. The respondent No. 1 did

not approach the Court with clean hands and has suppressed material facts

and was able to obtain an ex-parte ad-interim injunction order from the

learned Commercial Court vide its order dated 06.04.2024. The applicants ,

upon coming into light regarding the malicious acts of the respondent. No. 1,

filed an application for dismissal of the application filed under Section 9 of

the Act of 1996 along with modification of the order dated 06.04.2024 as the

respondent No.1 is neither suffering any irreparable loss or injury nor the

balance of convenience is in the favor of the respondent No. 1. The

applicants have further filed an objection to the application under Section 9

of the Act of 1996 whereby the applicants have clearly stated that the

arbitration between the parties will be governed under the agreement dated

16.03.2007 as the said agreement was main agreement and the agreement

dated 30.03.2007 is a mere modality of the prior agreement.

8. Learned Senior Advocates further submit that the respondent No. 1 in a

further attempt to distress the applicants sent a notice, dated 25.04.2024,

under Section 21 of the Act of 1996 nominating Hon'ble Justice Subhro

Kamal Mukherjee as its nominee arbitrator. Upon receiving the notice, the

applicants filed a reply on 28.05.2024 whereby the applicants have agreed

for the dissolution of the partnership firm, however, it is pertinent to mention

here that the respondent No. 1 in the notice dated 25.04.2024 has invoked

the arbitration clause as per the agreement dated 30.03.2007 but the

parties are to enter into arbitration as per clause 46 of the agreement dated

16.03.2007 as it is the main agreement and the agreement dated

30.03.2007 is an off shoot of the prior agreement. During the pendency of

the proceedings under Section 9 of the Act of 1996, the respondent No. 1

filed an application under Section 11 which is registered as A.P. (Com) 636

of 2024 of Act of 1996 before the Hon'ble Calcutta High Court for

appointment of an Arbitrator in accordance with clause 18 of the agreement

dated 30.03.2007 and commenced the arbitration proceeding at Kolkata.

The applicants sent a notice, dated 08.07.2024, under Section 21 of the Act

of 1996 to the respondent No. 1 as the respondent No.1 has not only

neglected to complete the construction work but also illegally terminated the

agreement dated 16.03.2007 by making a clear intention of its act by not

proceeding further with the construction work.

9. Mr. Shrivastava and Mr. Das further submit that in response to the

application filed before the Hon'ble High Court of Calcutta by the respondent

No. 1 under Section 11 of the Act of 1996, the applicants have filed a reply

whereby the applicants have clearly stated that the parties will be governed

by the agreement dated 16.03.2007 and have also stated that the

applicants have sent a notice under Section 21 of the Act of 1996 for

initiation of arbitration proceedings at Raipur. The respondent No. 1, in

furtherance to the reply filed by the applicants, has filed an additional

rejoinder before the Hon'ble Calcutta High Court whereby the respondent

No. 1 has specifically denied that any dispute exists with regard to the

agreement dated 16.03.2007 which is completely false and inconsistent with

the actual factual matrix of the case. The respondent No. 1 is continuously

changing its stand before different judicial forums, the respondent No. 1

before the Hon'ble Calcutta High Court has clearly stated that no dispute

has arisen in pursuance to the agreement dated 16.03.2007, however, the

respondent No. 1 has filed various caveats before the learned Court of First

Civil Judge Class I and Class II, Raipur, learned Court of Second Civil

Judge Class 1, Raipur, Learned District Judge, Raipur, learned Commercial

Court, Raipur, learned Court of Ninth Civil Judge Class II, Raipur with

regard to any litigation/application or suit being in respect of incomplete

portions of Phase I of project Singapore City which clearly demonstrates

that the respondent No.1 is well aware of the dispute arising out of

agreement dated 16.03.2007. In view of the foregoing compelling

circumstances, there is no effective remedy available to the applicants but to

approach this Hon'ble Court for appointment of an independent and

impartial Sole Arbitrator under Section 11 of the Act of 1996. As the

agreement dated 16.03.2007 involves construction of real estate project in

Raipur, Chhattisgarh, and the immovable properties are situated at Kota,

Raipur within the jurisdiction of this Hon'ble Court and thus this Hon'ble

Court has jurisdiction over the present dispute and has the authority to

appoint a Sole Arbitrator/ Arbitral Tribunal under Section 11 of the Act of

1996. The applicants are invoking the arbitration clause as contained in the

document dated 16.03.2007 for the reason that the breach as contemplated

by the respondent no. 1 has resulted in loss/ damage to the applicants for

which the applicants have suffered immense monetary loss. The applicants

are trying to resist the application under Section 11(6) of the Act of 1996 as

filed by the respondent No. 1 before the Hon'ble Calcutta High Court on one

of the ground that there was a consensus ad idem to the terms and

conditions as well as the arbitration agreement of 16.03.2007 which is

comprehensive and encompassing all terms of the transactions as

compared to the arbitration agreement of 30.03.2007 which is for limited

purpose. The other ground which the applicants have resisted and have

objected to is that the arbitration clause as entered upon is not binding and

is a void agreement inasmuch as the same has been entered upon by a

partnership firm through Mrs. Meenali Singhania, which does not and

cannot have the implied authority of the other partners. Learned Senior

Advocates lastly submit that it would be in the interest of justice that an

independent Sole Arbitrator/Arbitration Tribunal is appointed/constituted for

adjudication of the disputes arising under the agreement between the

parties.

10. On the other hand, Mr. Abhishek Sinha, learned Senior Advocate appearing

for the respondent No. 1-Merlin Projects Ltd. submits that these arbitration

applications are thoroughly misconceived, misplaced, not maintainable and

are liable to be dismissed in limine with exemplary costs. There is no

arbitration agreement between the parties insofar as the dispute made out in

the said application is concerned. The said application is an afterthought

and the same has become infructuous and not maintainable in view of the

final disposal of the respondent No.1's application under Section 11 of the

Act of 1996, by the Hon'ble Calcutta High Court in AP(COM) No. 636 of

2024. Further, since the said application is under Section 11 of the Act, the

respondent No. 1 would deal with only those allegations and/or contentions

made in the said applications which are material, relevant and germane for

a due and proper adjudication. The said applications (even if the contents

thereof are taken to be true and correct) is barred by and is not maintainable

in facts or in law. The applications have been purportedly filed under Section

11 of the Act for appointment of a Sole Arbitrator/Arbitral Tribunal by

purporting to invoke Clause 46 of the Promoter Builder Agreement dated

16.03.2007. Clause 46 of the said agreement is not and does not contain

any valid or binding or subsisting arbitration agreement between the parties.

The Hon'ble Calcutta High Court by an order dated 8.10.2024, while

disposing of the respondent No.1's application under Section 11 of the Act

[being AP(COM) No. 636 of 2024], inter alia, interpreted Clause 46 of the

said agreement.

11. Mr. Sinha further submits that the AP (COM) No. 636 of 2024 was a prior

application filed by the respondent No. 1 and both the applicants were a

party thereto. As such, the decision rendered in the said order operates as

res judicata between the parties and the applicants are estopped from

contending to the contrary in the present proceeding. The said order was

carried in appeal by the applicants before the Hon'ble Supreme Court by

way of a Special Leave Petition being SLP (C) No. 26420 of 2024. By an

order dated 15.04.2025, the Hon'ble Supreme Court was pleased to dismiss

the aforesaid Special Leave Petition and refused to interfere with the said

order. As such, it has become final and binding on the parties. Hence, these

applications are not maintainable and the same are in abuse of process of

law and of this Hon'ble Court. Without prejudice to the aforesaid preliminary

objections as to the maintainability of these applications, they are also

otherwise not maintainable and the reliefs as prayed therein cannot be

granted by this Hon'ble Court. Pursuant to the said order passed by the

Hon'ble Calcutta High Court, the learned Sole Arbitrator (appointed in terms

of the said order) has entered upon the arbitral reference and the arbitration

proceedings between, inter alia, the parties have commenced and is at the

stage of evidence. In any event, the said agreement was abandoned and

given a go-bye to by the parties, which would be borne out from their

subsequent conduct. After execution of the said agreement, the parties

deliberated and decided not to proceed with the venture as contemplated

under the said agreement (which was for joint development of a piece of

land situated in Raipur, Chhattisgarh in a builder landowner relationship).

Over the course of further negotiations, it was decided that they would form

and constitute a partnership firm, which would continue the development

and would have its registered office at Kolkata. In the aforesaid

circumstances, the parties formed and constituted a partnership firm by

entering into an Indenture of Partnership dated 30.03.2007. The respondent

No. 1 and the applicants are the partners of the partnership firm, which has

its registered office at Kolkata. The partnership firm was to carry on

business under the name and style of 'M/s. Singhania Merlin'. The Deed of

Partnership was entered into at the registered office at Kolkata. The

registered office of the partnership firm was obtained on license and the

respondent No. 1 opened its office there at. Effectively and for all practical

purposes, the ratio of profit sharing was equal between the respondent No.

1 on the one hand and the applicants on the other. In view of the fact that

the registered office of the partnership firm is at Kolkata, the books of

accounts of the firm were maintained there.

12. Mr. Sinha draws attention of this Court to clause 11 of the partnership

agreement which pertains to maintenance of books of accounts. The

relevant portion of the same reads as under:

"11. BOOKS OF ACCOUNTS:

The usual books of accounts shall be kept properly posted up wherein shall be entered particulars of all money, goods and effects belonging to or owing in or by the partnership received,

sold or purchased in course of partnership business and such other transaction, matters and things relating to the said business as are usually entered in the books of accounts kept by persons engaged in the business of similar nature and such books of accounts together with all vouchers, letters, papers or writings concerned or belonging to the partnership except such as are to be kept at the bankers end shall be kept at the bankers and others shall be kept at the place of business of the partnership, each partner shall at all times have free access to and right to inspect and copy the same."

13. According to Mr. Sinha, the parties had further agreed that all the partners

would have equal power of management. The duties of the partners were

also defined. Clauses 13 and 14 of the Indenture of Partnership reads as

under:

"13. MANAGEMENT:

All the partners shall have equal power of management although they may entrust the day-to-day management of the affairs of the business of the firm to anyone or more of their number as and when they say deem it necessary and expedient.

14. DUTIES OF PARTNERS:

i) Each partner shall:

a) Punctually pay, and discharge his/her separate debts and engagements and indemnify the other partners and partnership assets against the same and all the cost claims and demands in respect thereof.

b) At all times give the other partners true information and faithful explanations of all matters relating to the partnership within his knowledge and offer every assistance in his power to carry on the partnership.

ii) That no partner shall without the consent in writing of the other partners: a) Release or compound any debts owing to or claim of the partnership except in the usual course of the business.

b) Employ and money or effects of the partnership or except in the usual pledge the credit thereof business of the partnership.

c) Enter into any bond or become bailey, surety or security with or for any person or do or knowingly cause or suffer to be done

anything whereby the partnership property or any part thereof may be caused, attached extended or taken into execution, except in the usual course of business.

d) Assign, mortgage, or charge his or her share in the partnership or any part thereof or make any other person a partner therein without the consent of the other partners.

iii) No partner shall do or suffer anything harmful to the interest of the partnership."

14. There are effectively two partners of the firm i.e. the respondent No. 1 on the

one hand and the applicants on the other, each having equal power of

management and control as the other. Even though the said firm was

principally formed for the purpose of carrying out development of real estate,

it was agreed that the said firm would carry on other business as would be

mutually agreed between the parties. In fact, the parties had discussed and

agreed that the firm could very well and profitably carry on further or other

ancillary or allied businesses. The parties had as such decided that even

though the business of the firm would be mainly that of development of the

real estate project as described in the partnership agreement, the parties

would explore entering into further and/or other businesses. The parties had

also agreed that while the first project would be at Raipur, Chhattisgarh, the

parties would initiate other real estate projects at Kolkata. The respondent

No. 1 is a reputed real estate developer in Kolkata and the applicants had

insisted on the partnership, so that the experience and goodwill of the

respondent No.1 could be drawn upon and fresh business and/or other

developments launched at Kolkata, which was an area, the applicants

wanted to enter. In fact, there were numerous negotiations that are being

carried out for the purpose of commencing real estate development projects

at Alipore, Tollygunge and Behala, all outside the jurisdiction of this Hon'ble

Court. Particulars of such proposed projects, which are in the course of

negotiations as detailed in paragraph 't' of the return. In fact, an advanced

stage of negotiation has been reached between the brokers dealing with

such properties and the partnership firm. It can even be said that there is an

informal arrangement and/or agreement that has been reached in-principal.

Finality is being intentionally delayed by the applicants on the pretext that

they did not have the necessary capital available immediately. The first

project of the said firm is at Raipur, Chhattisgarh. There has been progress

in respect of this project, known as Singapore City. After the parties entered

into the partnership and the partnership firm was constituted, the parties

decided on the request of the applicants that the accounting procedure

followed would be on the terms contained in the said agreement. The Deed

of Partnership was amended by a further document dated 31.03.2007 by

which the name of the partnership firm was changed to 'Singhania Merlin

Estate'. In the document dated 31.032007, there is a reference to an

agreement dated 17.03.2007 in the 2nd and 3rd recital. This is an obvious

typographical error and should be read as the said agreement. There is a

similar inadvertent error in the document dated 31.03.2007. There is no

document dated 17.03.2007 that has been executed by the parties. When

the parties had executed the first agreement dated 27.11.2005, the

premised financials were as follows:

(i) The applicants had purchased land ad measuring about 27 acres

and there was further land contiguous to or connected with the said 27

acres of land, in respect of which, agreements for purchase had been

entered into but execution of indenture of sale was pending. The total

extent of the land was 8,37,613 sq. ft.

(ii) The land was valued at Rs.160/- per sq.ft. and would be transferred

to a joint pool formed by the respondent No. 1 on the one hand the

applicants on the other. This would be the capital contribution of the

applicants.

(iii) The respondent No. 1's capital contribution would be brought as

recorded in the succeeding paragraph.

(iv) As regards the cost of construction and the utilization of the money

received from allotment or sale of the land, it was agreed that the first

party shall put further money in the pool as a part of investment for

further planning, sanctioning development of the project and shall go

on investing till they match the value of the land as mentioned as

above.

A. Once the construction starts, the party shall also start booking of

constructed space and receive advances against the same in the pool.

B. Out of the advances received, 25% of the same will be utilized for

construction and development of the project and 75% will be utilized

for payment of the second party to equalize the investment at par with

the first party.

C. Once the investments of both the parties are equal in the pool

account, both the first and second parties shall invest further sums of

money in developing the property in equal ratio. Similarly, they shall

also be entitled to withdraw the surplus amounts in equal ratio.

15. Thus, it is evident that the respondent No. 1 was to introduce the funds for

the development of the project as its capital contribution. The applicants

were to introduce the land as its capital contribution, at a price agreed

between the parties, as mentioned above. Upon booking of constructed

spaces and advances being received, 25% of the same was to be utilised

for construction and development of the project. The remaining 75% of the

advances received was to be utilised for payment to the applicants to

equalise their investment with that of the respondent No. 1. In this way and

with the continued investment by the respondent No. 1 and continued

receipt of funds by the applicants from the advances received from booking,

the investments of both parties were to reach parity. The parties were to

thereafter share profits and contribute further capital in equal proportion. By

15.03.2007, the applicants had acquired 8,37,613 sq.ft. of land, which

constituted Phase I and Phase II of Singapore City. The applicants had

started acquiring land on which Singapore City is being built in the year

2003-2004 and by 2005, bulk of the land had been acquired. By

15.03.2007, the land was completely consolidated. It was contemplated that

the construction would be in two phases i.e. Phase I and Phase II. The land

in such Phase I and Phase II is comprised is the capital contribution by the

partnership firm. In fact, for most of the land acquired, the applicants have

been reimbursed, by the partnership firm, while bringing parity to the capital

contribution of the two partners i.e. the respondent No. 1 and the applicants.

In fact, the parties had agreed that the respondent No. 1 would infuse

necessary sums into the partnership firm and a part of such sums, would be

taken out by the applicants, to bring parity to the capital contributions of the

respondent No. 1 and the applicant, as stated above. The land may be held

by the applicants in their individual names, but the same constitutes

partnership property. This is the admitted position. The total land has been

transferred to the joint pool and is comprised in Phase I and Phase II of

Singapore City (18,37,613 sq.ft.). The total acquisition cost is

Rs.13,40,18,080/- and the same is treated as the capital contribution of the

applicants. The land continues to remain in the names of the applicants for

operational convenience, for obtaining approvals, mutation, permissions etc.

and to save time. In any event, the land being the capital contribution of the

applicants became the property of the partnership firm, for all purposes.

Upon the parties commencing development, in or around March, 2008, it

was discovered that certain additional land aggregating to about 0.1948

hectares was required to be acquired by the partnership firm. The same was

done and the arrangement between the parties is recorded in an agreement

dated 31.03.2008. The purchase was with the funds of the said partnership

firm. The purchase was done in the names of the applicants in view of the

fact that the earlier 8,37,613 sq.ft. of land were also standing in their names

and for operational convenience in obtaining sanctions, approvals and

permissions. After the preparatory and preliminary work, actual construction

work at the project commenced from 2007. It had been decided that there

would be two phases of the project. The first phase of the project was on

360590 sq.ft. of land and would comprise of 10 residential building and a

commercial block. The second phase of the project was on 477113 sq.ft.

Ultimately, out of 10 residential and 01 commercial block, comprised in

Phase I, 07 residential blocks have been constructed. Three residential

blocks and a commercial block remains to be constructed. Phase II of the

project has not been commenced. Construction activity is now at a

standstill, in view of the conduct of the applicants and/or in view of their

unwillingness. The land which is comprised in Phase II and the land on

which construction of the same and of the three towers and the commercial

block yet to be built in Phase I of the Raipur project, as described in

Annexure-R/12. This land is presently substantially vacant and is the

property of and under the control of the partnership firm. The parties have

also executed a further document dated 31.03.2008. It is material to state

that when the parties executed the document dated 31.03.2008, they

realized the inadvertent error of mentioning the date of the said agreement

as 17.03.2007, in the two documents dated 31.03.2007. The respondent

No. 1 has made a total investment of a sum of Rs.16.67 crores and has

withdrawn a sum of Rs.12.75 crores, from the partnership firm, which would

leave apart a sum of Rs.3.91 crores in the partnership firm. The applicants

have invested a sum of Rs.7.59 crores. In addition, the value of the 837613

sq.ft. of land of the respondent No. 1 is Rs.13.40 crores (as per the agreed

valuation of the land at Rs.160/- per sq.ft.). The cumulative investment of the

applicants is therefore Rs.21 crores. Out of this sum of Rs.21 crores, the

applicants have withdrawn a sum of Rs.18.01 crores. Therefore, the capital

investment of the applicants in the said firm is a sum of Rs.2.98 cores while

the respondent No. 1's contribution is Rs.3.91 crores. For the purpose of tax

planning and for their benefit, the applicants had requested that the value of

the land be treated at book value. The respondent No. 1 had agreed to the

same. It is for this reason that the value of the land, which is the applicants'

capital contribution is treated as book value. If the balance sheets of the firm

are considered, the respondent No.1's capital contribution would be of a

much higher percentage than that of the applicants having regard to the

request of the applicants that the value of the land be treated at book value

and not at agreement value. The lands at Raipur (Annexure-R/12), is the

property of the partnership firm. The applicants as partners of the firm are

not entitled to deal with or utilize the said asset without the respondent No.

1's consent or in a manner contrary to what had been agreed between the

parties. Apart from being utilized or used for completion of the project, the

lands mentioned in Annexure-R/12, cannot be utilised for any other purpose

whatsoever. In or around early 2024, it had become apparent that the

applicants were not interested to complete the Raipur project or commence

a new project at Kolkata. All activity of the partnership firm was stopped

and/or has come to a standstill. The applicants have become totally non-

committal. Moreover, upon enquiry being made, it has been learnt that the

applicants are interested to develop and/or sell and/or deal with the

partnership property, in connivance with a third party. The fact that the

applicants are acting in close conjunction with third parties would be evident

that the club building at the project (which is an asset of the partnership

firm) has been, without the knowledge or consent of the respondent No. 1,

handed over to a third party. The respondent No. 1 has obtained a copy of

the agreement which has been executed without its knowledge or consent.

The respondent No. 1, through Mr. Jagdish Baldwa called upon Mr. Subodh

Singhania, the Director of the applicant and had discussed the matter and

requested for resolving all pending issues including completing the Raipur

project and proceeding with development of the Kolkata projects. The

applicants refused to discuss or even to sign the Balance Sheet of the said

firm for the year ended 2022-2023. The intention of the applicants is to deal

with the partnership firm's property. The applicants have started preliminary

work for making construction for the purpose of letting out on land which

abuts the main road, which had been designated as the commercial block in

Phase I. The same is the situation in respect of land comprised in Phase II.

This is prime land and would fetch large rents, which is why the applicants

are acting in the said manner. Such act on the part of the applicants is totally

without the respondent No. 1's consent and utilisation of partnership

property for their own purpose. The intention of the applicants is to not

develop phase II of the Raipur project or complete development of Phase-I

of the Raipur project jointly with the respondent No. 1 or in the partnership

firm.

16. Mr. Sinha further submits that the applicants are also acting wrongfully in

respect of the registered office situated at Kolkata, outside the jurisdiction of

this Hon'ble Court and the Branch Office at Raipur, which is situated at the

mezzanine floor of the Club, Singapore City, and constitute property of the

partnership firm. The applicants are sending representatives who are

discouraging the respondent No. 1's representatives from occupying the

said offices. Moreover, in or around 22.03.2024, the applicants have sent

representatives who had carried away the entire books and records of the

said firm. The respondent No. 1 had lodged a complaint with the local Police

Station at Bhawanipore, Kolkata for the same. However, it is material that

the applicants have the soft copies of the entire accounts of the firm and

have access to the tally software. While removal of the physical accounts is

not complete exclusion of the respondent No. 1 from the books and records

of the partnership firm, it is an act of the applicants which would suggest

that their intention is to exclude the respondent No. 1 completely from the

firm. It is also anticipated that the applicants and their representatives and

men, agents or assigns would encroach upon the registered office of the firm

situated at Kolkata or prevent the egress or ingress of the respondent No. 1

in respect thereof. It is also possible that even though the partnership firm

has a license in respect of the said office at Kolkata, the applicants may

incorrectly deal with the property by misrepresenting themselves to be

owners thereof. In respect of the properties mentioned in Annexure-R/8, the

partnership firm is actively negotiating for the purpose of entering into

agreements for future project. In fact, negotiations with the owners of these

properties had reached an advance stage. At the present juncture, it has

been noticed that the applicants are independently trying to take over the

negotiations with the brokers authorized to negotiate on behalf of the owners

of these properties. It appears that the intention of the applicants is to

deprive the partnership firm and independently enter into development

agreements with the owners of the properties mentioned in Annexure-R/8.

The same would be interfering with the business of the partnership firm. The

applicants cannot engage in activity which is detrimental to the business of

the partnership firm. The respondent No. 1 is therefore entitled that an order

of injunction be passed restraining the applicants from independently

negotiating or entering into any arrangement or agreement with the owners

of the property situated under R. S./L. R. Dag Nos. 2581, 2581/2734,

2581/2735, 2583, 2583/2727, 2584, 2584/2728, 2584/2729, 2584/2730,

2584/2731, 2520/2732 and 2520/2733, under Mouza Parui, J. L. No. 3,

Police Station Behala, under Maheshtala Municipality Ward No. 14, District

South 24 Parganas and property premises No. 37/1, Diamond Harbour

Road, Police Station South Port, within the Kolkata Municipal Corporation

Ward No. 79, Kolkata-700027, District South 24 Parganas, in respect

thereof or from attempting to procure a breach of the informal understanding

which has been reached between the said owners and the partnership firm

in any manner whatsoever. There is a valid, binding and subsisting

arbitration contained in the partnership deed dated 30.03.2007, being

Clause 18 thereof, which reads as under:

"... All disputes which arise between the partners of their respective personal representatives whether during or after the determination of the partnership or whether in relation to the interpretation of these presents or to any act or omission of any party to the dispute or either of these or in relation to any other matter whatsoever touching the partnership affairs shall be referred to arbitrators, one to be nominated by each party in difference and if the arbitrators so appointed differ they will refer the matter to an UMPIRE to be chosen by the arbitrators and every such reference shall be deemed as an Arbitration under the Indian Arbitration and Conciliation Act, and the provision of the said Act or statutory modification thereof for the time being in force shall apply..."

17. Mr. Sinha submits that in the aforesaid facts and circumstances that the

respondent No. 1 was constrained to file an application under Section 9 of

the Act being Misc. Case (Arb) No. 97 of 2024 before the Learned

Commercial Court at Alipore praying for various relief(s). The learned

Commercial Court at Alipore, by an ex parte ad interim order dated

06.04.2024, granted an interim injunction in terms of prayer (a) of the said

application. The applicants had preferred an application for vacating the

order dated 06.04.2024, inter alia, on the ground of jurisdiction of the

learned Commercial Court at Alipore to which the respondent No. 1 had filed

its written objection. A written objection has also been filed by the applicants

to the respondent No. 1's Section 9 application to which the respondent No.

1 had filed its affidavit-in-reply. Allegations and/or statements which have

been made by the applicants in their vacating application as also to the

written objection to the respondent No.1's Section 9 application are all false,

baseless and incorrect. The aforesaid ex parte ad interim order dated

06.04.2024 was extended from time to time by the learned Commercial

Court at Alipore, Kolkata, till 24.04.2025. In view of the constitution of the

Arbitral Tribunal pursuant to the order of the Hon'ble Calcutta High Court,

the learned Commercial Court at Alipore, Kolkata disposed of Section 9

application of the respondent No. 1, by an order dated 24.04.2025. The

respondent No.1 has also invoked the arbitration agreement as contained in

the partnership deed dated 30.03.2007 by way of a notice dated 25.04.2024

issued under Section 21 of the Act of 1996. In view of the conduct of the

applicants, the respondent No. 1 treated the said partnership to be a

partnership at will and by way of a notice dated 25.04.2024 had dissolved

the same and alternatively, recorded that the said partnership is required to

be dissolved by an award to be passed by the learned Arbitrator. The

applicants responded to the said notice dated 25.04.2024 by a letter dated

28.05.2024. The contents of the letter dated 28.05.2024 are untrue and

incorrect and the same are denied and disputed. Since the applicants had

refused to give their consent for constituting an Arbitral Tribunal for the

purpose of adjudicating the aforesaid disputes between the parties, the

respondent No. 1 was constrained to file the aforesaid prior application

under Section 11 of the Act before the Hon'ble Calcutta High Court, being

AP (COM) No. 636 of 2024. Both the applicants had filed their affidavits-in-

opposition to the aforesaid application of the respondent No. 1. The

respondent No. 1 had filed its affidavits-in-reply to the aforesaid affidavits-in-

opposition. As would be evident from the statements made in the aforesaid

affidavits-in-opposition, the applicants had adopted an identical stand before

the Hon'ble Calcutta High Court as to the scope, purport and effect of clause

46 of the said agreement. By the said order, such contentions of the

applicants were rejected by the Hon'ble Calcutta High Court. Such

reasoning of the Hon'ble Calcutta High Court was affirmed by the Hon'ble

Supreme Court of India by its order dated 15.04.2024. Further, the subject

matter of the said agreement and the partnership agreement (being certain

plots of land situated in Raipur, Chhattisgarh) are one and the same.

Furthermore, with the disposal of the aforesaid prior application by the

Hon'ble Calcutta High Court (which was between the same parties and

which has been confirmed and upheld by the Hon'ble Supreme Court) and

the consequent constitution of an Arbitral Tribunal pursuant thereto, which is

presently in seisin of the aforesaid common subject matter, there is no

question of allowing the said application at the present juncture. At the

present juncture, the learned Sole Arbitrator (appointed pursuant to the said

order) is presently adjudicating the respondent No.1's application under

Section 17 of the Act in respect of the self-same subject matter. In any

event, the said agreement has not been given any effect to and the same

has been superseded by the Indenture of Partnership dated 30.03.2007

and, in the alternative, the same has merged with the aforesaid indenture.

Clause 46 of the said agreement is neither valid nor binding and/or

subsisting and no effect thereto, can at all be given. Furthermore, no dispute

can be said to have arisen under the said agreement. Therefore, the

question of referring any dispute allegedly arising under the said agreement

to arbitration, does not and/or cannot arise. Consequently, the question of

any Arbitrator being nominated or appointed for adjudication of any alleged

disputes in terms of the said agreement also does not arise.

18. According to Mr. Sinha, the present petitions are an afterthought and the

same had been filed as a counterblast to the respondent No. 1's application

under Section 11 of the Act, which had been filed before the Hon'ble

Calcutta High Court prior to the filing of these petitions. The present

petitions have been filed with a vexatious, harassive, mala fide and oblique

motive of defeating the arbitral proceedings which, at the time of filing of the

said application, were to arise out of respondent No. 1's application under

Sections 9 and 11 of the Act of 1996. As such, any further continuation of

the said application would be illegal, in violation of the aforesaid orders of

the Hon'ble High Court and the Hon'ble Supreme Court (which have been

passed between the same parties and in respect of the same subject

matter) and also in abuse of process of law and of this Hon'ble Court. In the

aforesaid facts and circumstances, this Hon'ble Court does not have the

jurisdiction to entertain the said application and the same deserves to be

dismissed in limine and with exemplary costs.

19. Placing reliance on the rejoinder filed, Mr. Shrivastava as well as Mr. Das,

learned Senior Advocates appearing for the applicants controvert the

submissions advanced by Mr. Sinha, learned counsel for the respondent

No. 1.

20. I have heard learned counsel appearing for the parties, perused the

pleadings and materials available on record.

21. The applicants have filed these petitions seeking appointment of Sole

Arbitrator in view of Section 46 of the agreement entered into between the

parties on 16.03.2007.

22. For better appreciation of the issue, clause 46 of the agreement dated

16.03.2007 is quoted hereinbelow:

"(46) ;g fd mHk;i{k ds e/; fdlh Hkh rjg dk dksbZ fookn mRiUu gksus ij ml ij dk;Zokgh ,oa lquokbZ dsoy jk;iqj esa gh gksxh rFkk loZizFke fujkdj.k ,dkdh iap Jh iq[kjkth th tSu }kjk fookn dk fujkdj.k vf/kdre rhu ekg dh vof/k esa fd;k tkosxkA lqyg] e/;LFkrk ,oa lqyg vf/kfu;e 1996 ds izko/kkuksa ds rgr fd;s tk;saxsA iap }kjk fookn dk fujkdj.k djus ls badkj fd, tkus ij vFkok viuh vleFkZrk O;Dr djus ij fookn dk fujkdj.k O;ogkj U;k;ky;

jk;iqj ls fd;k tkosxkA"

23. According to the learned counsel for the applicants, the issue before the

Hon'ble Calcutta High Court which was raised by the respondent No. 1 was

with respect to dissolution of partnership firm and the issue involved in the

present applications are different. According to the applicants, for different

agreements, separate arbitration proceedings can be initiated and the issue

raised by the respondent No. 1 and the issue raised by the applicants herein

are different arising out of different agreements entered into between the

parties. It is an admitted position between the parties that in three separate

agreements were entered into.

24. It would be beneficial to take note of the order passed by the Hon'ble

Calcutta High Court, in the petition filed by the respondent No. 1 being

AP-/COM/636/2024, on 08.10.2024, the relevant portion of which reads as

under:

"Upon a perusal of the arbitration clause and the connected documents annexed to the application, it is evident that there is an arbitrable dispute between the parties.

Since the said dispute is covered by the arbitration clause in the agreement between the parties as well as the issue is otherwise arbitrable, there cannot be any impediment in referring the matter to arbitration.

At this juncture, learned counsel appearing for the respondents belatedly seeks an adjournment in the matter. It is also sought to be projected that in Clause 46 in an agreement between the parties dated March 16, 2007, it is provided that

the Raipur Civil Courts shall have territorial jurisdiction over the matter.

Clause 46, which is relied on by the respondents, is a part of one of the agreements between the parties, being a development agreement. The said clause provides that if any dispute arises between the parties, then the proceedings and hearing of that shall only be at Raipur and at first, there shall be conciliation by the sole arbitrator named therein within a maximum period of three months under the provisions of the Arbitration and Conciliation Act, 1996. If the Arbitrator refuses to resolve the dispute or expresses his inability to do so, then the said dispute shall be decided by the Civil Courts at Raipur. In view of there being conflicting clauses in two documents, the development agreement and the partnership deed, the one which is more comprehensive with regard to the parties' intention to refer the dispute to Arbitrator ought to be taken as the guideline for the purpose of deciding an application under the Arbitration and Conciliation Act, 1996. Clause 46 mentions a named person as a "sole Arbitrator"; however, the function designated for such person is not arbitration but conciliation between the parties.

As such, it cannot be said that the arbitral seat has been designated to be in Raipur. That apart, it has been stated thereafter in Clause 46 of the agreement relied on by the respondents that on the failure of the designated person to resolve the dispute or on his expression of inability to do so, the dispute shall be decided by the Civil Courts, Raipur. The decision of a dispute by a Civil Court, by no stretch of imagination, can be deemed to be an arbitral proceeding. Hence, the argument of the respondents that the arbitral seat has been designated in Raipur is not tenable in the eye of law or on the factual matrix of the case as well. Thus, we have to fall back upon Clause 18 of the partnership agreement, which is the primary agreement within the conspectus of which the present dispute has arisen, for the purpose of ascertaining whether any particular place has been designated as the seat of arbitration. A perusal of Clause 18 of

the same clearly shows that no such seat has been designated at all.

Hence, the provisions of Sections 16 to 20 of the Code of Civil Procedure would apply. Going by the said standard, as mentioned earlier, the registered office of the partnership firm is in Kolkata as well as a part of its assets/properties are located within the territorial jurisdiction of this High Court. Thus, this Court has territorial jurisdiction to entertain and decide the present application under Section 11 of the 1996 Act.

In such view of the matter, there cannot be any hindrance to the matter being referred to arbitration.

Accordingly, AP-COM/636/2024 is allowed on contest, thereby appointing Justice Aloke Chakrabarti, a retired Judge of this Court and the Allahabad High Court, as the sole Arbitrator to resolve the disputes between the parties, upon a declaration being obtained from him under Section 12 of the Arbitration and Conciliation Act, 1996."

(emphasis supplied)

25. As per the respondent No. 1, the applicants herein had challenged the order

dated 08.10.2024 passed by the Calcutta High Court wherein it was

observed that clause 46 provides for conciliation between the parties and

not arbitration. However, the said challenge has been turned down by the

Hon'ble Apex Court in SLP(C) No. 26420/2024 meaning thereby that the

finding of the Calcutta High Court that clause 46 of the agreement dated

16.03.2007 is in respect of conciliation proceedings and not arbitration, has

attained finality. Mr. Sinha has also submitted that the conciliator Mr.

Pukhraj Jain is ineligible for the conciliation proceedings and as such, the

only recourse available to the applicants in view of clause 46 of the

agreement is to approach the competent civil court. The fact of Mr. Jain

being ineligible for the conciliation proceedings has not been controverted

by the learned counsel appearing for the applicants. It has further been

submitted by Mr. Sinha that the arbitration proceedings at Kolkata is at the

stage of evidence and the applicants cannot be allowed to initiate a fresh

and separate arbitration proceedings at Chhattisgarh and that too, when

clause 46 of the agreement dated 16.03.2007 does not provide for

arbitration as held by the Calcutta High Court and affirmed by the Apex

Court.

26. The dismissal of the SLP by the Hon'ble Apex Court, filed by the applicants,

affirms the order passed by the Hon'ble Calcutta High Court that clause 46

of the agreement dated 16.03.2007 does not provide for arbitration

proceedings but in fact, conciliation proceedings. Since Mr. Pukhraj Jain is

ineligible for conducting the conciliation proceedings, then in terms of clause

46 of the agreement, the only recourse available to the applicants is the civil

court at Raipur.

27. Once it has been conclusively held that Clause 46 does not constitute an

arbitration agreement but only provides for conciliation followed by recourse

to the Civil Court, the jurisdiction of this Court under Section 11 of the Act of

1996 cannot be invoked and the present arbitration petitions are liable to be

dismissed.

28. Accordingly, ARBR No. 22 of 2024 and ARBR No. 23 of 2024 stand

dismissed. However, the applicants are at liberty to avail such remedies as

may be available to them in law in accordance with Clause 46 of the

agreement dated 16.03.2007.

Sd/-

(Ramesh Sinha) CHIEF JUSTICE

Amit

AMIT KUMAR DUBEY

Head Note

A clause in an agreement cannot be treated as an arbitration agreement

merely because it employs the expression "arbitration". The Court must

examine its true nature and intent, and where such clause, in substance,

provides only for conciliation or amicable settlement followed by recourse to

civil courts, the Court may refuse to appoint an Arbitrator.