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       REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NO. 8837 OF 2016

Mrs. Hema Khattar & Anr.  .... Appellant(s)

Versus

Shiv Khera                  .... Respondent(s)

J U D G M E N T

R.K. Agrawal, J.

1) Challenge in this appeal is to the legality of the judgment

and order dated 28.09.2012 rendered by a Division Bench of

the High Court of Delhi at New Delhi in FAO (OS) No. 470 of

2012 whereby the High Court dismissed the appeal filed by the

appellants herein.

2) Factual position in a nutshell is as follows:-

a) An agreement to reconstruct a building situated at C-6/4,

Vasant  Vihar,  New  Delhi  was  executed  between  Hema

Khattar-the appellant No. 1 herein, wife of Ashwani Khattar –

the  appellant  No.  2  herein,  carrying  on  business  in

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construction under the name and style of M/s Dessignz and

Shiv Khera-the respondent herein on 06.06.2009.    

b) Pursuant  to  the  said  agreement,  the  building  site  was

handed over to the appellant No. 1 herein on 09.11.2010 and

thereafter the execution of the work had started.  In March

2011, as per Clause 16 of the Agreement dated 06.06.2009, a

spot  inspection  was  conducted  by  renowned  structural

engineers which pointed out several structural lacunae.  On

coming  to  know  about  the  same,  the  respondent  further

arranged  inspection  by  various  specialized  agencies  which

confirmed the same in their reports.   

c) Being  aggrieved  by  the  quality  of  construction,  the

respondent  served  a  legal  notice  dated  19.09.2011  to  the

appellant  No.  1  seeking  damages.   The  respondent,  vide

Clause 33 of the said agreement, appointed a sole arbitrator

claiming that the appellant No. 1 has not complied with the

terms  of  the  agreement  whereby  disputes,  requiring

adjudication, have arisen between the parties.  In statement of

claims, the respondent, besides other claims, also sought for a

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sum of Rs. 39.85 lakhs paid to the appellant No. 1 along with

a sum of Rs. 35,000/- for the TDS deposited to her credit.

d) The  appellants  filed  a  suit  for  declarations,  permanent

injunction and recovery before the High Court being CS(OS)

No. 1532 of 2012 seeking a decree that the agreement dated

06.06.2009 entered into between the appellant No. 1 and the

respondent was vitiated and had been terminated by mutual

consent  by  both  the  parties  and  any  proceeding  initiated

pursuant to the agreement is null, non-est and void and also

for recovery of an amount of Rs. 45,50,000/-.   

e) It is also pertinent to mention here that it was alleged in

the plaint that a formal meeting was held between the parties

in which it was decided that appellant No.1 will no longer be

the  contractor  and  the  agreement  dated  06.06.2009  would

stand  terminated  by  mutual  consent  and  the  construction

would be carried out by the sub-contractors to be appointed

as per the advice of appellant No. 2 who would supervise the

same without remuneration/profit.

f) The respondent filed I.A. No. 12124 of 2012 in CS(OS) No.

1532  of  2012  under  Section  8  of  the  Arbitration  and

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Conciliation  Act,  1996 (in  short  ‘the  Act’)  claiming that  the

subject-matter  of  dispute  in  the  present  suit  is  already

pending adjudication before the Arbitral Tribunal, hence, the

suit  cannot  be  proceeded  with  which  was  denied  by  the

appellants in their reply to the above said application.

g) Vide order dated 17.09.2012, learned single Judge of the

High Court, found that the suit is bad for misjoinder of parties

as  well  as  for  causes  of  action  and  gave  an  option  to  the

appellants therein to elect whether they want the suit to be

treated as  a  suit  for  recovery  of  money by  appellant  No.  2

herein against the respondent or a suit for declarations and

injunction by appellant No. 1.

h) Being  aggrieved  by  the  order  dated  17.09.2012,  the

appellants went in appeal and filed FAO (OS) being No. 470 of

2012 before  the  High Court.   A division bench of  the High

Court, vide order dated 28.09.2012, dismissed the appeal.

i) Aggrieved by the order dated 28.09.2012, the appellants

have filed this appeal by way of special leave before this Court.

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3) Heard Mr. Jayant Bhushan, learned senior counsel for the

appellants and Mr.  Sakal  Bhushan,  learned counsel  for  the

respondent and perused the records.    

Point for consideration:-

4) The  only  point  for  consideration  before  this  Court  is

whether in the present facts and circumstances of the case the

suit is bad for misjoinder of parties as well as for causes of

action?

Rival submissions:-

5) Learned  senior  counsel  for  the  appellants  contended

before this Court that the agreement dated 06.06.2009 was

executed with dishonest  intention containing the arbitration

clause and in any event the same has been superseded by a

subsequent  oral  agreement  between  appellant  No.  2  herein

and the respondent.

6) Learned senior counsel  further contended that  the High

Court erred in upholding that the cause of action with respect

to relief of money is an independent cause of action from that

of the relief of declarations and injunction.  The High Court

failed  to  appreciate  that  common  trial  of  joint  causes  of

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action is necessary, if at all, as they raise common questions

of law and facts and the course adopted by the High Court

would  lead  to  multiplicity  of  proceedings  causing  delay.

Learned senior counsel finally contended that in view of the

patent illegality in the orders passed by the High Court, the

same are liable to be set aside.     

7) Without prejudice to the aforesaid, learned senior counsel

for the appellants, in the alternative submitted that the entire

matter  be referred to  another  sole  arbitrator  which may be

appointed by this Court as according to him, in the written

contract, there was a clause for arbitration and, subsequently,

in  the  oral  contract  also,  the  terms  of  the  earlier  contract

continued  to  remain  in  operation  except  those  which  were

modified in the oral contract.  

8) In  support  of  the  above  submission,  learned  senior

counsel for the appellants placed reliance upon a judgment of

this Court in P.R. Shah, Shares and Stock Brokers Private

Limited vs.  B.H.H. Securities Private Limited and Others

(2012) 1 SCC 594.  He has referred to paragraph 19 of the

judgment which reads as under:-

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“19. If A had a claim against B and C, and there was an arbitration agreement  between  A and  B but  there was no arbitration  agreement  between  A and  C,  it  might  not  be possible to have a joint arbitration against B and C. A cannot make a claim against  C in an arbitration against  B, on the ground that the claim was being made jointly against B and C, as C was not a party to the arbitration agreement. But if A had a claim against  B and C and if  A had an arbitration agreement  with  B and  A also  had  a  separate  arbitration agreement with  C, there is no reason why A cannot have a joint  arbitration  against  B and  C.  Obviously,  having  an arbitration between A and B and another arbitration between A and C in regard to the same claim would lead to conflicting decisions.  In such a  case,  to  deny  the  benefit  of  a  single arbitration  against  B and  C on  the  ground  that  the arbitration agreements against B and C are different, would lead to multiplicity of proceedings, conflicting decisions and cause injustice. It would be proper and just to say that when A has a claim jointly against  B and  C, and when there are provisions for arbitration in respect of both  B and  C, there can be a single arbitration.”

9) Per contra, learned counsel for the respondent submitted

that the suit has been filed by the two appellants jointly with

respect to the two separate alleged causes of action. He further

submitted that the alleged cause of action of the appellant No.

1 is based upon the agreement dated 06.06.2009 between the

appellant No. 1 and the respondent in which appellant No. 2

cannot be said to have any joint interest and the alleged cause

of  action  of  appellant  No.  2  is  based  upon  an  oral

understanding  arrived  at  between  appellant  No.2  and  the

respondent in which appellant No. 1 cannot be said to have

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any joint interest.  Learned counsel for the respondent further

submitted that in such circumstances, the instant suit in the

present form is not maintainable in terms of Order II Rule 3 of

the Code of Civil Procedure, 1908 (in short ‘the Code’) and the

suit of the appellant No. 1 is required to be separated under

Order II Rule 6 of the Code.

10) Learned  counsel  further  submitted  that  in  view  of  the

existence  of  the  arbitration  clause  in  the  agreement  dated

06.06.2009  and  the  subject  matter  of  dispute  between  the

parties  in  the  present  suit  is  already  pending  adjudication

before  the  Arbitral  Tribunal,  the  instant  suit  filed  by  the

appellant No. 1 cannot be proceeded with and the matter is

required to be referred to arbitration.  Learned counsel finally

submitted that the judgment rendered by the division bench of

the High Court upholding the decision of the learned single

Judge is correct and no interference is called for in the appeal.

11) Learned counsel further submitted that the oral contract

did  not  contain  any  clause  for  arbitration  and  the  dispute

raised by the appellant No. 2 cannot be referred to arbitration.

In support whereof, he relied upon a decision of this Court in

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Kvaerner  Cementation  India  Limited vs.  Bajranglal

Agarwal and Another (2012) 5 SCC 214 wherein this Court

has held that there cannot be any dispute that in the absence

of  arbitration clause in the agreement,  no dispute could be

referred for arbitration to an Arbitral Tribunal.

12) Learned  counsel,  however,  submitted  that  if  this  Court

comes to the conclusion that the matter should be resolved by

way of  arbitration,  the entire matter  be referred to the sole

arbitrator already appointed by the respondent.

Discussion:

13) From  the  materials  on  record,  it  is  evident  that  an

agreement dated 06.06.2009 was executed between the parties

wherein  appellant  No.  1  was  the  contractor  and  the

respondent  as  a  client.   The  agreement  impugned  clearly

states that there is an arbitration clause therein.  Owing to the

dispute among parties, the respondent, in exercise of his right

under  the  said  clause,  appointed  a  sole  arbitrator.

Subsequently, notices were issued to the appellant No. 1 and

the matter  remained pending despite appearance before the

Arbitral Tribunal.  In the meantime, the appellants jointly filed

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a  suit  before  the  High  Court  for  declarations,  permanent

injunction and recovery claiming  a formal meeting was held

between the  parties  in  which it  was decided that  appellant

No.1 will no longer be the contractor and the agreement dated

06.06.2009 would stand terminated by mutual consent and

the construction would be carried out by the sub-contractors

to be appointed as per the advice of appellant No. 2 who would

supervise  the  same  without  remuneration/profit.   The

respondent filed I.A. No. 12124 of 2012 in CS(OS) No. 1532 of

2012  under  Section  8  of  the  Act  claiming  that  the

subject-matter  of  dispute  in  the  present  suit  is  already

pending adjudication before the Arbitral Tribunal, hence, the

suit cannot be proceeded with.  Vide order dated 17.09.2012,

learned single Judge of the High Court, found that the suit is

bad for mis-joinder of parties as well as for causes of action

and gave  an option to  the appellants  to  elect  whether  they

want the suit to be treated as a suit for recovery of money by

appellant  No.  2 herein against  the respondent  or a suit  for

declarations  and  injunction  by  appellant  No.  1.   The

appellants went in appeal before the division bench of the High

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Court.  Vide order dated 28.09.2012, the division bench also

dismissed the same.

14) From the facts of this case, we find that a suit was filed

for declarations, permanent injunction and recovery of money

by the appellants stating that a meeting was held in between

the parties in which it was decided that appellant No. 1 would

no  longer  be  the  contractor  and  the  agreement  dated

06.06.2009 would stand terminated by mutual consent and

the construction would be carried out by the sub-contractors

to be appointed as per the suggestions of appellant No.2, who

would  supervise  the  same  but  without  any

profit/remuneration  as  per  the  oral  agreement.   The

respondent agreed to make all payments towards purchase of

material,  construction,  fee of  architect etc.   Appellant No. 2

incurred an amount of Rs. 45 lakhs for and on behalf of the

respondent which is sought to be recovered under this suit.

The appellants also claimed a declaration to the effect that the

agreement dated 06.06.2009 between appellant No. 1 and the

respondent  was  obtained  by  fraud  and  mis-representation,

hence, it is null and void.  Another declaration sought for in

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the  suit  was  that  the  agreement  dated  06.06.2009  stood

terminated by mutual consent.  A decree for injunction is also

sought  for  restraining  the  respondent  from  initiating  and

carrying on any proceeding arising out of and on the basis of

agreement dated 06.06.2009 between appellant No. 1 and the

respondent.   On  the  other  hand,  the  respondent  took  the

preliminary  objection  that  the  suit  is  bad  for  misjoinder  of

parties and causes of action and further that the arbitration

proceedings  initiated  by  the  respondent,  in  terms  of  the

arbitration clause, is pending adjudication before the Arbitral

Tribunal.

15) Admittedly,  the  cause  of  action  for  recovery  of  Rs.  45

lakhs claimed in the present suit is the expenditure alleged to

have been incurred by appellant No. 2 pursuant to the oral

agreement he claims he had with the respondent sometime in

April,  2011.   On the  other  hand,  the  cause  of  action  with

respect  to  reliefs  of  declarations  and  injunction  is  the

agreement dated 06.06.2009.   The alleged agreement dated

06.06.2009 was, admittedly, between the appellant No. 1 and

the respondent to which appellant No. 2 was only a witness,

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which as per the terms of the plaint terminated later on by

mutual  agreement  between  the  appellant  No.  1  and  the

respondent.  At this stage, it was agreed orally that appellant

No. 2, who is the husband of appellant No. 1, would take over

the execution of the pending works. Admittedly, Appellant No.

1  is  not  a  party  to  the  alleged  oral  agreement  between

Appellant  No.  2  and  the  respondent  for  supervision  of  the

construction by him.   

16) From the materials available on record, particularly, the

transcript of conversation between the appellant No. 2 and the

respondent on 6th and 7th April,  2011, we find that the oral

agreement  was  substituted  in  place  of  the  alleged  written

agreement dated 06.06.2009.  There is a complete accord and

discharge of the responsibilities and liabilities of appellant No.

1 vis-à-vis the defendant and vice-versa.  The plaint also avers

that  after  the  accord  between  appellant  No.  1  and  the

respondent and simultaneous discharge of the obligations, a

distinct oral agreement was entered into between appellant No.

2 and the respondent.  It  is quite clear from what has been

stated  above  that  the  cause  of  action:  the  right  to  get

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declarations with regard to the said contract as null and void

or  a right  to  seek an injunction restraining  the  respondent

from taking any action on the basis of the said contract, if any,

with regard to the prior written agreement arises in favour of

appellant  No.  1  against  respondent  and  not  in  favour  of

appellant No. 2 as he was not a party to the agreement dated

06.06.2009.   On the  similar  lines,  the  right  to  seek money

decree, as is claimed by the appellants,  would be a distinct

cause  of  action  founded  on  subsequent  oral  agreement

between the appellant No. 2 and the respondent.  

17) Learned single Judge of the High Court, vide order dated

17.09.2012, directed the parties to elect as to whether they

want the suit to be treated as a suit for recovery of money by

appellant  No.  2  against  the  respondent  or  a  suit  for

declarations  and  injunction  by  appellant  No.  1  against  the

respondent  and  to  amend  the  plaint  accordingly.   Learned

single Judge, after taking a considered view that the suit is

bad for misjoinder of parties and/or misjoinder of causes of

action, held that the application filed by the defendant under

Section  8  of  the  Act  would  be  disposed  of  only  after  the

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appellants  make  an  election  in  terms  of  this  order.   The

appellants  herein,  instead  of  amending  the  plaint,  went  in

appeal  before  the  division  bench,  which  got  dismissed  vide

order dated 28.09.2012.   

18) Since  the  suit  was  dismissed  for  misjoinder  of  parties

and/or causes of action, it is pertinent to mention here the law

on the point which is as under:-

Order II Rule 3  

“Joinder  of  causes  of  action  – (1)  Save  as  otherwise provided,  a  plaintiff  may  unite  in  the  same  suit  several causes of action against the same defendant,  or the same defendants jointly; and any plaintiffs having causes of action in  which  they  are  jointly  interested  against  the  same defendant  or  the same defendants  jointly  may unite  such causes of action in the same suit.  

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value  of  the  aggregate  subject  matters  at  the  date  of instituting the suit.”  

Order II Rule 6

“Power of Court to order separate trials – Where it appears to the court that the joinder of causes of action in one suit may  embarrass  or  delay  the  trial  or  is  otherwise inconvenient, the Court may order separate trials or make such other  order  as may be  expedient  in  the  interests  of justice.”   

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In  Black's  Law  Dictionary  it  has  been  stated  that  the

expression ‘cause of action’ is the fact or facts which give a

person a right to judicial relief.  A cause of action, thus, means

every fact, which, if traversed, it would be necessary for the

plaintiff to prove in order to support his right to a judgment of

the court. In other words, it is a bundle of facts which taken

with the law applicable to them gives the plaintiff a right to

relief against the defendant. It must include some act done by

the defendant since in the absence of such an act no cause of

action  can  possibly  accrue.  It  is  not  limited  to  the  actual

infringement of the right sued on but includes all the material

facts on which it is founded.

19) Order II, Rule 3, provides for the joinder of several causes

of action and states that a plaintiff may unite in the same suit

several causes of action against the same defendant, or the

same defendants jointly or several plaintiffs having causes of

action in which they are jointly interested against the same

defendant or defendants jointly may unite them in one suit.

The remedy for any possible inconvenience with regard to said

rule is supplied by the provisions of Order II, Rule 6, which

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authorizes  the  Court  to  order  separate  trials  of  causes  of

action which though joined in one suit cannot be conveniently

tried or disposed of together.

20) Similarly, Order I Rule 1 of the Code permits joinder of

more  than one  persons  any  right  to  relief  in  respect  of,  or

arising out of, the same act or transaction or series of acts or

transactions  is  alleged  to  exist  in  such  persons,  whether

jointly,  severally  or  in  the  alternative;  and  if  such  persons

brought separate suits, any common question of law or fact

would arise.  Order I Rule 2 provides that where it appears to

the court that any joinder of plaintiffs may embarrass or delay

the trial of the suit, the court may put the plaintiffs to their

election or order separate trials or make such other order as

may be expedient.

21) In this connection, it is pertinent to refer to a judgment of

this Court in Ramesh Hirachand Kundanmal vs. Municipal

Corporation of Greater Bombay and Others 1992 (2) SCC

524 wherein it was held as under:-

“14. It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather

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than its  main objectives.  The  person  to  be  joined  must  be  one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness . It is not merely that he has an interest in the correct  solution of  some questions involved and has thought or relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, therefore,  must  be  a  question  in  the  action  which  cannot  be effectually and completely settled unless he is a party.”

22) In view of the foregoing discussion, we are of the opinion

that the appellants even though had different causes of action

against  the  respondent  but  it  was  a  continuity  of  the

agreement dated 06.06.2009 and oral agreement is evidenced

by the transcript of conversation between the appellant No. 2

and  the  respondent  on  6/07.04.2011,  therefore,  both  the

appellants could have joined as plaintiffs in a suit and the suit

is not bad for misjoinder of parties or causes of action.  Hence,

learned single Judge as also the division bench, was not right

in  giving  an  option  to  the  appellants  to  pursue  reliefs  qua

appellant No. 1 or qua appellant No. 2 only.  

23) In the present facts and circumstances of the case, it is

also  imperative  to  find  out  whether  the  High  Court  was

justified in deciding the maintainability of the suit when an

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application under Section 8 of the Act is pending adjudication

before the Arbitral Tribunal.  Before proceeding further, it is

appropriate to quote here Section 8 of the Act which reads as

under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement. – [(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies  not  later  than  the  date  of  submitting  his  first statement  on  the  substance  of  the  dispute,  then, notwithstanding  any  judgment,  decree  or  order  of  the Supreme Court or any Court, refer the parties to arbitration unless  it  finds  that  prima  facie  no  valid  arbitration agreement exists.] (2)  The application referred to in sub-section (1) shall not be entertained  unless  it  is  accompanied  by  the  original arbitration agreement or a duly certified copy thereof:

[Provided that where the original arbitration agreement or  a  certified  copy  thereof  is  not  available  with  the party  applying  for  reference  to  arbitration  under sub-section  (1),  and  the  said  agreement  or  certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to  produce  the  original  arbitration  agreement  or  its duly certified copy before the Court.]

(3) Notwithstanding  that  an application has  been  made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”  

24) It is also worthwhile to note Clause 33(d)  of  the

agreement  dated  06.06.2009  which  refers  the  parties  to

Arbitration:-

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“Governing  Law  &  Dispute  Resolution:  All  or  any disputes  and  differences  whatsoever  between  the  parties arising out of this Agreement or relating to or touching the mutual rights and obligations of the parties shall be subject to the jurisdiction of the Courts/Forums in Delhi only and shall be referred for adjudication to the sole arbitrator, to be appointed solely and exclusively by the FIRST PARTY, whose decision shall be final and binding upon the parties.  The arbitration proceedings shall be held at New Delhi, India and only  the  Courts  at  New  Delhi,  India  alone  shall  have jurisdiction over the subject matter of this AGREEMENT.”

25) In  Sundaram  Finance  Limited  and  Another vs.  T.

Thankam (2015) 14 SCC 444, this Court has held as under:-

“8. Once there is an agreement  between the parties  to refer the disputes or differences arising out of the agreement to arbitration, and in case either party, ignoring the terms of the  agreement,  approaches  the  civil  court  and  the  other party, in terms of Section 8 of the Arbitration Act, moves the court for referring the parties to arbitration before the first statement on the substance of the dispute is filed, in view of the peremptory language of Section 8 of the Arbitration Act, it is obligatory for the court to refer the parties to arbitration in terms of the agreement, as held by this Court in P. Anand Gajapathi Raju v. P.V.G. Raju.”

26) In P. Anand Gajapathi Raju & Others vs. P.V.G. Raju

(Dead) and Others (2000) 4 SCC 539, it was held as under:-

“5. The conditions which are required to be satisfied under sub-sections  (1)  and  (2)  of  Section  8  before  the  court  can exercise its powers are:

(1) there is an arbitration agreement; (2) a party to the agreement brings an action in the court

against the other party;

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(3)  subject-matter  of  the  action  is  the  same  as  the subject-matter of the arbitration agreement;

(4)  the  other  party  moves  the  court  for  referring  the parties to arbitration before it submits his first statement on the substance of the dispute.”

In view of the above, where an agreement is terminated by one

party  on  account  of  the  breach  committed  by  the  other,

particularly, in a case where the clause is framed in wide and

general terms, merely because agreement has come to an end

by its termination by mutual consent, the arbitration clause

does not get perished nor is rendered inoperative.  This Court,

in the case of  P. Anand Gajapathi Raju (supra),  has held

that  the  language  of  Section  8  is  peremptory  in  nature.

Therefore, in cases where there is an arbitration clause in the

agreement, it is obligatory for the court to refer the parties to

arbitration in terms of their arbitration agreement and nothing

remains  to  be  decided  in  the  original  action  after  such  an

application is made except to refer the dispute to an arbitrator.

Therefore, it is clear that in an agreement between the parties

before the civil court, if there is a clause for arbitration, it is

mandatory  for  the  civil  court  to  refer  the  dispute  to  an

arbitrator.   

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27) In view of the above, we are of  the considered opinion

that in the present case, the prerequisites for an application

under  Section  8  are  fulfilled,  viz.,  there  is  an  arbitration

agreement; the party to the agreement brings an action in the

court against the other party; the subject matter of the action

is the same as the subject-matter of the arbitration agreement;

and the other party moves the court for referring the parties to

arbitration  before  it  submits  his  first  statement  on  the

substance of  the dispute.  We have come to the conclusion

that the civil court had no jurisdiction to entertain a suit after

an  application  under  Section  8  of  the  Act  is  made  for

arbitration. In such a situation, refusal to refer the dispute to

arbitration would amount to failure of justice as also causing

irreparable injury to the defendant.  

28) As  we  have  already  held  that  the  oral  agreement  as

evidenced  by  the  transcript  of  conversation  between  the

appellant  No.  2  and  the  respondent  on  06/07.04.2011

substituting the alleged written agreement dated 06.06.2009

and which contained a clause for arbitration, the same clause

for arbitration would also be applicable to the oral agreement.

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The Division Bench has also erred in law in affirming the order

passed by learned single Judge.  Both the orders, therefore,

cannot be sustained and are set aside and, therefore, in view

of the decision in  P.R. Shah (supra), there can only be one

arbitrator and there can only be a single arbitration.   

29) In view of the foregoing discussion, the appeal succeeds

and is allowed.  However, instead of remitting the matter back

to  the  learned  single  Judge  for  deciding  the  suit  itself  on

merits,  we  refer  the  disputes  raised  by  the  appellants  in

CS(OS) 1532 of 2012 to the sole arbitrator already appointed,

viz.,  Hon’ble Mr. Justice V.K. Gupta (Retd.) and request the

arbitrator to decide the disputes expeditiously in accordance

with law.

...…………….………………………J.                (MADAN B. LOKUR)                                  

.…....…………………………………J.         (R.K. AGRAWAL)                         

NEW DELHI; APRIL 10, 2017.  

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