Scope Of Examination U/S 11 Of Arbitration Act Confined To Existence Of Arbitration Agreement: Delhi High Court

Brief Facts

This is a petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereafter 'A&C Act') seeking appointment of a sole arbitrator to adjudicate the disputes between the parties.

This petition is concerned with the Third Collaboration Agreement dated 14.10.2010 (hereafter 'Third Collaboration Agreement'). The said Third Collaboration Agreement has been executed between petitioner no.1 and respondent no.1 in respect of land.The purport of the said agreement was that the respondent no.1 would develop the said land and construct a Residential/Group Housing/Commercial Colony thereon.

Plot Buyer Agreements dated 23.12.2010 came to be executed between the petitioner no.1, respondent no. l and a group company of respondent no. l i.e. M/s Ansal Townships & Infrastructure Ltd., (the respondent no.2 herein), as a Confirming Party, whereby specific Plots were allotted to the petitioner no.1. However, neither the possession of the Plots was handed over to the petitioner no.1 nor the sale deeds were executed.

Certain disputes have also arisen between the parties in relation to the land admeasuring 9 Kanal & 1 Marla (1.1312 acres) situated in the revenue estate of village Badshahpur, Tehsil & Distt. Gurgaon in Sector 67, Gurgaon, purportedly forming part of the Fourth Collaboration Agreement. Pursuant thereto, vide letter dated 29.11.2018, the respondent no.1 froze/suspended the handing over of possession of the aforesaid plots to the petitioners.

Disputes having arisen between the parties, the petitioners sent notice invoking arbitration dated 14.04.2022 to the respondent no.1 and 2, invoking the arbitration clause contained in the Third Collaboration Agreement dated 14.10.2010. However, no reply thereto is stated to have been sent by the said respondents. The petitioners have also sent notice invoking arbitration to respondent no. 3 to 5 on 11.10.2023. However, no reply thereto was sent by the said respondents.

Contentions

The petitioners submitted that the respondent nos. 1 and 2 have already consented for constituting an arbitral tribunal to resolve the disputes between the parties. So far as respondent nos. 3 to 5 are concerned and that the said respondents ultimately claim their purported title to the plots through respondent nos. 1 and 2 and therefore the assignees and/or have acquired the benefits which have accrued to the respondent nos. 1 and 2 under the Collaboration Agreement.

That the Third Collaboration Agreement, which contains the arbitration clause, defines the term “developer” to include its assignees and the said respondents have impliedly consented to remain bound by the arbitration clause. In support of these submissions reliance has been placed on Rajesh Gupta v. Mohit Lata Sunda, and Shapoorji Pallonji and Co. Pvt. Ltd. v. Rattan India Power Ltd.

That The Plots are the petitioner's share of developed land under the Third Collaboration agreement and the same could not have been dealt/sold by the respondent nos.1 and 2. It is alleged that the respondent nos. 3 to 5 are not bona fide purchasers.

Per contra, the respondents submitted that respondent nos.1 and 2 have no objection to the constitution of an arbitral tribunal to comprehensively adjudicate the disputes between the parties.

The respondent no. 3 submitted that the respondent no. 3 is a bonafide purchaser of the said Plot Nos. C-1018 and C1019 and that the respondent no. 3 had been allotted / purchased the Plots as a part of a settlement with the respondent no.1 and another group company of respondent no.1 and that respondent no. 1 being the absolute owner of the Plots transferred the same to respondent no. 3 in accordance with law.

That respondent no. 3 is not a party to the Third Collaboration Agreement; being a third-party and a non-signatory to the Third Collaboration Agreement, it cannot be made a party to the arbitration. It is contended that in these circumstances, the respondent no. 3 cannot be referred to arbitration under the said agreement. In this regard, reliance has been placed on Gujarat Composite Ltd. v. A Infrastructure Ltd.,(2023) and Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc., 2013.

That there is no assignment of rights/obligations under the Third Collaboration Agreement from respondent no. 1 to respondent no. 3. Reliance has also been placed on Kapilaben v. Ashok Kumar Jayantilal Sheth, 2020.

The respondent no.4 submitted that the respondent no. 4 is a bonafide purchaser of Plot No. C-1018 having purchased it from respondent no. 3 vide registered sale deed dated 03.03.2021 for a lawful consideration.

That that the respondent no.4 is a non-signatory/third party to the Third Collaboration Agreement. It is submitted that there is no legal basis to compel the respondent no.4 to arbitrate.

The respondent no. 5 submitted that respondent no. 5 is neither a party nor is a person claiming through or under any party, under the Third Collaboration Agreement; therefore, the terms of the said agreement, including arbitration clause, do not bind the respondent no. 5.

Court's Analysis

The court, at the outset, discussed the scope of examination under section 11 of the Arbitration Act and observed that it is important to note that in terms of the judgment of the Supreme Court in In Re: Interplay Between Arbitration Agreements under A&C Act, 1996 & Stamp Act, 1899 - (7J),2024 and as further explained in SBI General Insurance Co. Ltd. v. Krish Spinning,2024 the scope of examination under Section 11 of the A&C is confined to the 'existence' of an arbitration agreement. Further, it is not permissible to take recourse to/ apply tests like the “eye of the needle” and “ex-facie meritless” to decline reference to arbitration.

The court further observed that in context of a situation where non-signatories are sought to be impleaded in arbitration, the standard of determination at the reference stage, has been set out by the Supreme Court in Cox & Kings Ltd. v. SAP India (P) Ltd. 2024 wherein it was held that when a non-signatory person or entity is arrayed as a party at Section 8 or Section 11 stage, the referral court should prima facie determine the validity or existence of the arbitration agreement, as the case may be, and in view of complexity of such determination leave it for the Arbitral Tribunal to decide whether the non-signatory is bound by the arbitration agreement.

The court further observed that In ONGC Ltd. v. Discovery Enterprises (P) Ltd.,2022 the Supreme Court has taken note of the fact that there are at least two distinct estoppel doctrines that apply in the non-signatories context, that is, 'the direct benefits' estoppel theory and the 'intertwined' estoppel theory. It is noticed that 'intertwined estoppel theory' looks at the nature of the disputes between the signatories and the non-signatories and in particular whether “issues the non-signatories seeking to resolve in arbitration are intertwined with the agreement with estoppel (signatory party) signed”.

Based on the above, the court further noted the facts of the present case and observed that the subject matter of the Third Collaboration Agreement and also all the subsequent agreements entered into inter se the respondents is the very same land parcel. All the agreements are stated to be in pursuance of each other.

Having perused the facts and relevant case laws, the court came to the conclusion that In view of the extensive adjudicatory exercise involved in determination of the above aspects, and in view of decision of the Supreme Court in Cox & Kings (5J) (supra), all these issues are best left to be decided by a duly constituted arbitral tribunal. It is neither apposite nor permissible for this Court to virtually conduct a mini trial for adjudication of these issues.

Since the facts of the Arbitration Application 722/2022 were also the same, the court made the similar observations and respondents were referred to Arbitration.

Accordingly, the present petition was allowed and all the respondents were referred to Arbitration.

Case Title: SURESH KUMAR KAKKAR & ANR versus M/S ANSAL PROPERTIES AND INFRASTRUCTURE LIMITED & ANR.

Case Reference: ARB.P. 721/2022,O.M.P.(I) (COMM.) 14/2022, CRL.M.A. 23067/2022, I.A. 18367/2022, I.A. 9831/2023, ARB.P. 722/2022 and OMP(I) (COMM) 15/2022 & IA Nos. 5424/2022, 7587/2022, 8605/2023

Judgment Date: 29/10/2024