LSP 1 9 arp 153.26.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Arbitration Petition No. 153 of 2026 Deepak Haribhau Tandale and others … Petitioners V/s. Muthaliaya Land Developers and others … Respondents. Mr.Aditya S. Lele a/w. Ms. Swamini Thitte Advocate for the Petitioners. Mr.Sandeep Mishra Advocate for the Respondent No.1 Mr. Vivek Rane Advocate for the Respondent No.2 Mr. sagar Joshi Advocate for Respondent Nos.3 and 4. CORAM : S.M. MODAK, J DATE : 28th September 2026. P.C. : 1. Heard learned Advocate for the Petitioners and learned Advocates for Respondent No.1– original Developer, for Respondent No.2- subsequent Developer and for Respondent Nos.3 and 4 who are the family members from the family of the Petitioners. Respondent No.5 is recent developer. Though he is served by way of private notice he has not appeared. The service affidavit is taken on record. LATA SUNIL PANJWANI Digitally signed by LATA SUNIL PANJWANI Date: 2026.10.01 13:35:52 +0530 LSP 2 9 arp 153.26.doc 2. There is an agreement titled as ' ’ भुविकास करार executed on 17th October 2011 on Page No.34. There is an arbitration clause on Page No.46. For ready reference it is reproduced below: " तसेच सदरहू लिहून देणार लिहून घेणार यांमध्ये सदरहू जमीन विमळकतीरी विकास कायासंबंधी अथा मोबदल्यासंबंधी काही ाद विनमाण झाल्यास सदरहू लिहून देणार लिहून घेणार हे सदर ाद हा ादा मार्फ त सोडती. तसेच सदर ादाची विनयुक्ती सदर लिहून देणार लिहून घेणार हे संमतीने करती.” 3. This agreement was executed in between the present Petitioners as some of the owners of the land and pre-decessor in title of Respondent Nos.3 and 4 have also signed it whereas Respondent No.1 has signed it as a Developer. Admittedly Respondent Nos.2 and 5 are not parties. They have raised this objection for referring the dispute to an Arbitrator. 4. Vide notice dated 29th January 2026 (Page-267), the Petitioners have taken recourse to the arbitration clause No.26. That is how the present petition is filed. 5. It is true in the notice dated 6th February 2024 issued by the Petitioners to the Respondent No.1, the Petitioners have referred about the intention of the Respondent No.1 to sale the land to one M/s. Bhakti Developers by using power of attorney. They are present Respondent No.2. This issue is raised on behalf of Respondent No.2. He also relied upon observations in case of LSP 3 9 arp 153.26.doc Nagareeka Indcon Products P. Ltd. v/s. Cargocare Logistics (India) P. Ltd.1 and more particularly Para No.13. The observations in earlier judgment of Jagdish Chander vs. Ramesh Chander2 are reproduced which clause can be said to be an arbitration clause is interpreted therein. A clause which says that “if the parties so decide dispute shall be referred to Arbitrator” or “if they so agree” cannot be considered as an arbitration agreement. 6. On this background, learned Advocate for Respondent No.1 invited my attention to the wordings in clause No.26. I have read clause No.26. It cannot be said that those observations are applicable in the facts involved in this petition. There are two aspects. “If the parties so decide or if they so agree it can be referred to arbitration” is a one clause. This is not case herein. 7. In this case Clause No.26 mentions if the dispute arose, it will be referred to arbitration. There is a clear indication of intention of the parties to adjudicate it through an Arbitrator. If the clause says “if the dispute will arose” it cannot be said that the parties have postponed their desire to get it adjudicated through an Arbitrator. Ultimately, such clause is executed at the time of agreement and it comes into picture when the dispute arose. Said contention is not accepted. There is concluded consent of parties to the agreement to refer it to arbitration. 1 (2026) SCC OnLine SC 630 2 (2007) 5 SCC 719 LSP 4 9 arp 153.26.doc 8. There is a reply filed by Respondent No.2 contending that they are not the party to original agreement. Even Respondent Nos.3 and 4 have raised a similar plea. They are the successors of one Jyoti Bhojane who is a party to the Development Agreement. 9. It is true there are several disputes and allegations and counter allegations by the parties against each other. Those contentions cannot be decided in a petition under Section 11 of the Arbitration and Conciliation Act. The primary requirement for appointment of an Arbitrator are made out. The grievance as raised by Respondent Nos.1 to 4 against the Petitioners including non-signatory to agreement dated 17th October 2011 can be raised before learned Arbitrator. So case is made out for appointment of an Arbitrator. Hence, the order: ORDER A) Mr. Prashant G. Kadam, Advocate is appointed as the Sole Arbitrator to adjudicate upon the disputes and differences between the parties arising out and in connection with the the matter referred above; Office address :- 101, Durgeshwari Tower, Near Jay Anand Hospital, Opp. Dagadi School, Charai, Thane. Email id : - pgkadam@readitmail.com Contact No. - 9820726666 B) A copy of this Order will be communicated to the LSP 5 9 arp 153.26.doc learned sole Arbitrator by the Advocate for the Petitioner within a period of one week from the date of uploading of this order. The petitioner shall provide the contact and communication particulars of the parties to the Arbitral Tribunal along with a copy of this Order; C) The learned sole Arbitrator is requested to forward the statutory Statement of Disclosure under Section 11(8) read with Section 12(1) of the Act to the parties within a period of two weeks from receipt of a copy of this Order; D) The parties shall appear before the learned sole Arbitrator on such date and at such place as indicated, to obtain appropriate directions with regard to conduct of the arbitration including fixing a schedule for pleadings, examination of witnesses, if any, schedule of hearings etc. At such meeting, the parties shall provide a valid and functional email address along with mobile and landline numbers of the respective Advocates of the parties to the Arbitral Tribunal. Communications to such email addresses shall constitute valid service of correspondence in connection with the arbitration; E) All arbitral costs and fees of the Arbitral Tribunal shall be borne by the parties equally subject to final outcome and as per the Schedule. LSP 6 9 arp 153.26.doc F) The place of sitting will be at Thane. 10. Arbitration Petition is disposed of. 11. Petitioner to serve copy of this order to Respondent No.5. (S.M. MODAK, J.)