2022 LiveLaw (SC) 747

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
SURYA KANT; J., ABHAY S. OKA; J.
SEPTEMBER 07, 2022
CIVIL APPEAL NO. 6272 OF 2022 [ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.15989 OF 2021]
Babanrao Rajaram Pund versus M/s. Samarth Builders & Developers & Anr.
Arbitration and Conciliation Act, 1996; Section 7, 11 - Section 7 of the Act does not
mandate any particular form for the arbitration clause - Even if we were to assume
that the subject-clause lacks certain essential characteristics of arbitration like
"final and binding" nature of the award, the parties have evinced clear intention to
refer the dispute to arbitration and abide by the decision of the tribunal. The party
autonomy to this effect, therefore, deserves to be protected - The deficiency of
words in agreement which otherwise fortifies the intention of the parties to
arbitrate their disputes, cannot legitimise the annulment of arbitration clause -
Courts to give greater emphasis to the substance of the clause, predicated upon
the evident intent and objectives of the parties to choose a specific form of dispute
resolution to manage conflicts between them. (Para 14-28)
(Arising out of impugned final judgment and orderdated 07-07-2021 in ARBA No. 10/2018 passed
by the High Court of Judicature at Bombay at Aurangabad)
For Appellant(s) Mr. Sudhanshu S. Choudhari, Adv. Mr. Mahesh Prakash Shinde, Adv. Mr. Vatsalya
Vigya, AOR
JUDGMENT
Surya Kant, J.
1. Leave granted.
2. The bone of contention in the instant proceedings is whether Clause 18 of the
Development Agreement dated 29.05.2014 possesses the necessary ingredients to
constitute a legal and valid arbitration agreement? The genesis of the dispute lies in the
aforesaid agreement executed between the parties for construction of an apartment
complex called “Amay Apartments”. The construction was to be carried out by
Respondent No.1 partnership firm on the land owned by the Appellant. Respondent No.
2 is the partner of Respondent No. 1 partnership firm.
Factual Background:
3. The Appellant owns and possesses the land bearing Plot Nos. 13 & 14, measuring
4000 sq. ft situated in Village Deolai, District Aurangabad, Maharashtra. Appellant
harbored a desire to develop the said property through the construction of residential and
commercial complexes. Respondent No.1 is a developer engaged in the business of
construction and development of residential and commercial buildings. When it came to
know that the Appellant wished to develop his property, the First Respondent
approached the Appellant and offered to develop the site. The Appellant and Respondent
No. 1, thus, entered into a ‘Development Agreement’ and pursuant thereto the Appellant
also executed a General Power of Attorney (GPA), in favour of Respondent No. 1.
4. The Agreement stipulated that the First Respondent shall construct “Amay
Apartments” within a period of 15 months which was extendable, incumbent on payment
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of a penalty amount. Respondent No. 1 agreed to hand over the constructed area to the
extent of 45% to the Appellant on or before the completion of the period of 15 months,
and to retain the remaining 55% of the developed portion. The Parties also entered into
a Deed of Declaration under Section 2 of the Maharashtra Apartment Ownership
Act,1970 which was registered on 20.10.2015 for the purposes of retaining the facilities,
amenities, common spaces, and to specify the portions of the developed property.
Respondent No. 1, however, failed to complete the development works within the
stipulated time of 15 months. The Appellant served Respondents with a Legal Notice on
11.07.2016, communicating his desire to terminate the Development Agreement and
cancel the GPA as the period of 15 months along with the extendable period of 3 months
had already lapsed. In addition to this, the Appellant issued a publication in the
newspaper dated 11.07.2016 informing the general public that he had terminated the
Agreement as well as the GPA. Respondents in their reply to the Legal Notice
controverted the contents of the Notice. This gave rise to disputes and differences
between the parties.
5. It is pertinent to mention at this juncture that Clause 18 of the Development
Agreement, purported to be an ‘arbitration clause’, reads as follows:
“18. All the disputes or differences arising between the parties hereto as to the interpretation
of this Agreement or any covenants or conditions thereof or as to the rights, duties, or
liabilities of any part hereunder or as to any act, matter, or thing arising out of or relating to
or under this Agreement (even though the Agreement may have been terminated), the same
shall be referred to arbitration of a Sole Arbitrator mutually appointed, failing which, two
Arbitrators, one to be appointed by each party to dispute or difference and these two
Arbitrators will appoint a third Arbitrator and the Arbitration shall be governed by the
Arbitration and Conciliation Act, 1996 or any re-enactment thereof.”
6. The Appellant in the interregnum, sought an injunction under section 9 of the
Arbitration and Conciliation Act, 1996 (the Act) in M.A..R.J.I No. 285 of 2016 and the
District Court at Aurangabad vide order dated 30.09.2016, restrained Respondent No. 1
from selling any tenements on the developed property till further orders.
7. Thereafter, the Appellant invoked the arbitration clause in the Development
Agreement on 07.11.2016 and issued a notice to this effect to the Respondents regarding
referral of the dispute to Mr. Shyam Rajale as the sole arbitrator. Though the notice was
duly served, the Respondents failed to respond to it. This led the Appellant to file an
application under section 11 of the Act before the High Court.
8. It was contended on behalf of the Respondents before the High Court that the
contract lacked the express wording necessary for it to be considered a valid and binding
agreement to refer the disputes to arbitration. Specifically, the absence of the term, “the
parties agreeing in writing to be bound by the decision of an arbitral tribunal”, was
highlighted by Respondent No. 1 to contend that Clause 18 of the Development
Agreement was not enforceable. To buttress this plea, reliance was placed on the
decisions of this Court in Bihar State Mineral Development Corporation and Anr. v.
Encon Builders (I) (P) Ltd.1, and Karnataka Power Transmission Corporation Ltd.
and Anr. v. Deepak Cables (India) Ltd.2, wherein it was held that in case of exclusion
of attributes of an arbitration agreement from a dispute resolution clause, it would not
1
(2003) 7 SCC 418.
2
(2014) 11 SCC 148.
2
amount to a valid arbitration agreement. Respondents further urged that it was crucial
that “the parties should have agreed that the decision of the private tribunal in respect of
the disputes will be binding on them.”
9. Although the High Court vide the impugned judgment dated 07.07.2021,
acknowledged the existence of Clause 18 in the Agreement that provides for disputes to
be referred to arbitration, it accepted the contentions of Respondents and came to the
conclusion that Clause 18 indeed lacks certain essential ingredients of a valid arbitration
agreement, as it does not mandate that the decision of the arbitrator will be final and
binding on the parties. Consequently, the High Court dismissed the application as not
maintainable. The aggrieved Appellant is now before this Court.
10. Notice was issued to the Respondents on 20.10.2021 and as per the office report
dated 18.08.2022, they have been duly served but have not entered appearance. We
accordingly proceeded to hear the matter ex parte on 22.08.2022.
Submissions:
11. Learned counsel for the Appellant vehemently urged that Clause 18 crystallises
the intention of the parties to refer disputes between them to arbitration and to be bound
by the decision of the arbitrator. The High Court failed to read into the intention of the
parties and erroneously drew an inference contrary to the spirit and object of Clause 18.
According to him, the clause clearly mentions that “all the disputes or differences arising
between the parties” are to be referred to arbitration of a Sole Arbitrator mutually
appointed, failing which the dispute shall be referred to a tribunal consisting of three
arbitrators. Moreover, there is no alternative provided in the agreement other than the
arbitration for the purpose of resolution of the disputes. Even the governing law of the
arbitration had been agreed upon by the parties as the Arbitration and Conciliation Act,
1996, manifesting their animus to be bound by the decision of the arbitrator. There are
also no specific exclusions of any attributes of an arbitration agreement in Clause 18 as
envisaged by this Court in Deepak Cables which, in turn, relied upon Jagdish Chander
v. Ramesh Chander & Ors.3.
12. Finally, it was submitted that this Court has time and again held that an arbitration
clause need not be penned down in any specific form. The High Court was thus not
justified in holding that Clause 18 of the Development Agreement did not meet the
essential criteria of a valid arbitration clause.
Analysis
13. It is a settled proposition of law that the existence of a valid arbitration agreement
under Section 7 of the Act is sine-qua-non for a court to exercise its powers to appoint
an arbitrator/arbitral tribunal under Section 11 of the Act. The short question that falls for
our consideration is whether Clause 18 constitutes a valid arbitration clause for the
purpose of invoking powers under Section 11 of the Act?
14. Section 2 (1)(b) of the Act, defines “arbitration agreement” to mean an agreement
referred to in section 7, which inter-alia lays down the following characteristics of an
Arbitration Agreement:
“7. Arbitration agreement—

3
(2007) 5 SCC 719.
3
(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise between them in respect of
a defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of anarbitration clause in a contract or in the
form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams, or other means of telecommunication [including
communication through electronic means] which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of the agreement is
alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration clause constitutes an
arbitration agreement if the contract is in writing and the reference is such as to make that arbitration
clause part of the contract.”
15. It may be seen that section 7 of the Act does not mandate any particular form for
the arbitration clause. This proposition was settled by this Court way back in Rukmanibai
Gupta v. Collector, Jabalpur and Ors.4, while viewing erstwhile section 2(a) of the
Arbitration Act, 1940 which contained the definition of “arbitration agreement”. It was held
that:
“6. ……Arbitration agreement is not required to be in any particular form. What is required to be
ascertained is whether the parties have agreed that if disputes arise between them in respect of the
subject- matter of contract such dispute shall be referred to arbitration, then such an arrangement
would spell out an arbitration agreement. A passage from RUSSELL ON ARBITRATION, 19th Edn.,
p. 59, may be referred to with advantage:
If it appears from the terms of the agreement by which a matter is submitted to a person’s decision
that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry
and hear the respective cases of the parties and decide upon evidence laid before him, then the
case is one of an arbitration.”
16. This very principle was reiterated in K.K.Modi v. K.N.Modi and Ors.5 which also
dealt with section 2(a) of the 1940 Act. While attempting to decide whether the arbitration
clause embodied in a Memorandum of Understanding was a valid arbitration clause or
not, this Court laid down the essential attributes of an arbitration agreement in following
terms:
“17. Among the attributes which must be present for an agreement to be considered as an
arbitration agreement are:
(1) The arbitration agreement mustcontemplate that the decision of the tribunal will be binding
on the parties to the agreement,
(2) that the jurisdiction of the tribunal to decidethe rights of parties must derive either from the
consent of the parties or from an order of the court or from a statute, the terms of which make it
clear that the process is to be an arbitration,

4
(1980) 4 SCC 556.
5
(1998) 3 SCC 573.
4
(3) the agreement must contemplate that substantive rights of parties will be determined by the
agreed tribunal,
(4) that the tribunal will determine the rights ofthe parties in an impartial and judicial manner with
the tribunal owing an equal obligation of fairness towards both sides,
(5) that the agreement of the parties to refertheir disputes to the decision of the tribunal must be
intended to be enforceable in law and lastly,
(6) the agreement must contemplate that the tribunal will make a decision upon a dispute which
is already formulated at the time when a reference is made to the tribunal.
18. The other factors which are relevant include, whether the agreement contemplates that the
tribunal will receive evidence from both sides and hear their contentions or at least give the parties
an opportunity to put them forward; whether the wording of the agreement is consistent or
inconsistent with the view that the process was intended to be an arbitration, and whether the
agreement requires the tribunal to decide the dispute according to law.”
[Emphasis applied]
17. In the afore-cited case, the dispute resolution clause stipulated that the disputes
were to be referred to the Chairman, IFCI or his nominee. This Court came to the
conclusion that the clause in dispute did not constitute a valid arbitration covenant as it
could not be said with clarity that the parties contemplated the disputes to be arbitrated.
18. Encon Builders (supra) placed reliance on K.K. Modi’s case and further
condensed the essential features of an arbitration agreement into four elements i.e.:
“13. The essential elements of an arbitration agreement are as follows:
(1) There must be a present or a future difference inconnection with some contemplated
affair.
(2) There must be the intention of the parties tosettle such difference by a private tribunal.
(3) The parties must agree in writing to be bound bythe decision of such tribunal.
(4) The parties must be ad idem.”
19. It is important to appreciate the nature of the arbitration clause in Encon Builders’
case, which was to the following effect:
“In case of any dispute arising out of the agreement, the matter shall be referred to the Managing
Director, Bihar State Mineral Development Corporation Limited, Ranchi, whose decision shall be
final and binding.”
20. The above-reproduced clause was held to be invalid primarily due to the fact that
the Managing Director, who was chosen to be the adjudicator-cum-arbitrator of the
dispute(s) arising between the parties, was likely to be biased as he had an interest in
the outcome of the case. The principle that one cannot be a judge of his own cause was
thus aptly applied to invalidate the subject clause. It was evidently not a case of an arbitral
clause lacking essential ingredients of an arbitration agreement. In our opinion, this case
renders no assistance to the Respondents.
21. In Jagdish Chander (supra), again a two-Judge bench of this Court dealt with a
peculiar arbitration clause, stipulating that:
“(16) If during the continuance of the partnership or at any time afterwards any dispute touching the
partnership arises between the partners, the same shall be mutually decided by the partners or shall
be referred for arbitration if the parties so determine.”

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 [Emphasis applied]
Reference to the arbitration under the above reproduced clause was contingent on the
determination by the parties, as their explicit intention to arbitrate was conspicuously
missing. This Court, therefore, held that the arbitration clause was invalid as the parties
had shown mere desire or hope to have the disputes settled by arbitration. While
interpreting Section 7 of the 1996 Act and placing reliance on K.K.Modi (supra) as well
as Encon Builders (supra), it was further held that:-
“8.(i)….Where there is merely a possibility of the parties agreeing to arbitration in future, as
contrasted from an obligation to refer disputes to arbitration, there is no valid and binding arbitration
agreement…….
(iii) Where the clause provides that in the event of disputes arising between the parties, the disputes
shall be referred to arbitration, it is an arbitration agreement.”
22. Adverting to the case in hand, it may be seen that the contents and the nature of
Clause 18 are substantially different from the dispute resolution pacts in K.K.Modi,
Jagdish Chander, or Encon Builders (supra). We say so for three reasons. Firstly,
apart from the fact that Clause 18 of the Development Agreement uses the terms
“Arbitration” and “Arbitrator(s)”, it has clearly enunciated the mandatory nature of
reference to arbitration by using the term “shall be referred to arbitration of a Sole
Arbitrator mutually appointed, failing which, two Arbitrators, one to be appointed by each
party to dispute or difference”. Secondly, the method of appointing the third arbitrator has
also been clearly mentioned wherein the two selected Arbitrators are to appoint a third
arbitrator. Finally, even the governing law was chosen by the parties to be “the Arbitration
and Conciliation Act, 1996 or any re-enactment thereof.” These three recitals, strongly
point towards an unambiguous intention of the parties at the time of formation of the
contract to refer their dispute(s) to arbitration.
23. We are, therefore, of the firm opinion that the High Court fell in error in holding that
the Appellant’s application under section 11 was not maintainable for want of a valid
arbitration clause. We find that Clause 18 luminously discloses the intention and
obligation of the parties to be bound by the decision of the tribunal, even though the
words “final and binding” are not expressly incorporated therein. It can be gleaned from
other parts of the arbitration agreement that the intention of the parties was surely to refer
the disputes to arbitration. In the absence of specific exclusion of any of the attributes of
an arbitration agreement, the Respondents’ plea of non-existence of a valid arbitration
clause, is seemingly an afterthought.
24. Even if we were to assume that the subject-clause lacks certain essential
characteristics of arbitration like “final and binding” nature of the award, the parties have
evinced clear intention to refer the dispute to arbitration and abide by the decision of the
tribunal. The party autonomy to this effect, therefore, deserves to be protected.
25. The deficiency of words in agreement which otherwise fortifies the intention of the
parties to arbitrate their disputes, cannot legitimise the annulment of arbitration clause.
A three-Judge Bench of this Court in Enercon (India) Ltd. and Ors. v. Enercon Gmbh
and Anr.6 dealt with an arbitration clause that did not provide for a method of electing
the third arbitrator. The court held that “the omission is so obvious that the court can
legitimately supply the missing line.” The line “the two arbitrators appointed by the
6
(2014) 5 SCC 1.
6
parties shall appoint the third arbitrator” was read into the clause so as to give effect to
it. It was further held that:
“88. In our opinion, the courts have to adopt a pragmatic approach and not a pedantic or technical
approach while interpreting or construing an arbitration agreement or arbitration clause. Therefore,
when faced with a seemingly unworkable arbitration clause, it would be the duty of the court to make
the same workable within the permissible limits of the law, without stretching it beyond the
boundaries of recognition. In other words, a common sense approach has to be adopted to give
effect to the intention of the parties to arbitrate. In such a case, the court ought to adopt the attitude
of a reasonable business person, having business common sense as well as being equipped with
the knowledge that may be peculiar to the business venture. The arbitration clause cannot be
construed with a purely legalistic mindset, as if one is construing a provision in a statute….”
26. The UNCITRAL Model Law on International Commercial Arbitration, 1985 from
which the Arbitration and Conciliation Act, 1996 originated, envisages minimal
supervisory role by courts. When section 7 or any other provisions of the Act do not
stipulate any particular form or requirements, it would not be appropriate for a court to
gratuitously add impediments and desist from upholding the validity of an arbitration
agreement.
27. There is no gainsaying that it is the bounden duty of the parties to abide by the
terms of the contract as they are sacrosanct in nature, in addition to, the agreement itself
being a statement of commitment made by them at the time of signing the contract. The
parties entered into the contract after knowing the full import of the arbitration clause and
they cannot be permitted to deviate therefrom.
28. It is thus imperative upon the courts to give greater emphasis to the substance of
the clause, predicated upon the evident intent and objectives of the parties to choose a
specific form of dispute resolution to manage conflicts between them. The intention of
the parties that flows from the substance of the Agreement to resolve their dispute by
arbitration are to be given due weightage. It is crystal clear to us that Clause 18, in this
case, contemplates a binding reference to arbitration between the parties and it ought to
have been given full effect by the High Court.
Conclusion:
29. In light of the above discussion, the Civil Appeal stands allowed. Clause 18 of the
Development Agreement is held to be a valid arbitration clause. Consequently, the
impugned judgment and order dated 07.07.2021 passed by the High Court of Judicature
of Bombay at Aurangabad is set aside.
30. Since the Appellant has already invoked the arbitration clause, without any further
ado, this Court appoints Mr. Justice P.V. Hardas (Contact number: +91-9834933135),
former Judge of the Bombay High Court, as the Sole Arbitrator to resolve all
disputes/differences between the parties. The learned Arbitrator shall be entitled to a fee
as per the Fourth Schedule of the Act, as amended from time to time. The Registry is
directed to send a copy of this order to the learned Sole Arbitrator.
31. The issues on merits that may be raised by the parties are kept open and shall be
determined by the learned Arbitrator in accordance with law.

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