Judgment 1. Petitioner and the respondent are signatories to the development agreement dated 28.3.2001 as contained in Annexure-5 to the supplementary affidavit filed on behalf of the petitioner, perusal whereof indicates that respondent is the owner of the land in question and petitioner had undertaken to develop the same by 31.3.2002 as per the plan already passed by the Patna Regional Development Authority(hereinafter referred to as the P.R.D.A.) vide Plan Case No. 292 of 1995 or under a revised plan to be sanctioned by the P.R.D.A. Fifty per cent of the total built up area completed in all respect was the owners share in the developed property which the developer had undertaken to sell by 31.3.2002 or to purchase himself after paying full consideration money therefor to the owner by 30.4.2002, failing which the owner shall be entitled to forfeit the hundred per cent built up area of the building irrespective of the fact that the space has been booked or agreement for sale has been executed by the developer and the owner shall not be liable to pay consideration to the developer or to the purchaser of his share. As per sub-clause (D) of Clause 12 of the agreement, it was the responsibility of the owner to ensure removal of the tenants from portion of the site by 30.9.2001. In case the owner does not ensure removal of the tenants by 30.9.2001 the developer shall be entitled to avail extension beyond 31.3.2002 of the time taken by the owner for removal of tenants after 30.9.2001, Clause-29 of the agreement provided for arbitration clause which is quoted hereinbelow; "all disputes and differences by and between the parties hereto in any way related to or connected with this agreement and/or anything done in pursuance hereof shall be referred to the arbitration under the provisions of the Arbitration and Conciliation Act 1996 (hereinafter referred to as the Act), and the award made by such Arbitrator shall be final and binding on the parties hereto, or by the sole arbitrator appointed by mutual consent of both the parties." 2. During the execution of the development agreement building activity continued until four floors and several columns of fifth floor was raised but thereafter was stopped in the light of the instructions of the P.R.D.A. contained in letters dated 14/24.9.2001 as also for the failure of the owner to remove the tenants from a portion of the land in question, accordingly notice dated 9.1.2005 was served by the developer on the owner requesting him to refer the dispute to the arbitrator but the owner under his reply dated 5.2.2005, Annexure-1 refused to make such reference whereafter Request Case No. 12 of 2005 was filed by the developer through its Chairman, Ajay Kumar praying inter alia to appoint an arbitrator to resolve the dispute between the developer and the owner arising out of the development agreement dated 28.3.2001. Said request case was disposed of by this Court under orders dated 23.8.2005, Annexure-2, perusal whereof would indicate that as agreed between the parties, Hon ble Shri Birendra Prasad Sinha, a retired Judge of this Court was appointed as Arbitrator to adjudicate the dispute between the developer and the owner pursuant to agreement dated 28.3.2001. Later M.J.C. No. 2322 of 2005 was filed by the developer on 8.9.2005 requesting this Court to substitute the arbitrator as the developer had subsequently learnt that Sri Justice Birendra Prasad Sinha is related to the owner. The owner filed counter affidavit in the said M.J.C. on 22.11.2005 denying his relationship with Sri Justice Birendra Prasad Sinha and further submitted that no serious prejudice will be caused to the parties if order dated 28.3.2005 passed in Request Case No.12 of 2005 is maintained. This Court without going into the questions as to whether Sri Justice Birendra Prasad Sinha was related to the owner and prejudice will be caused to the parties if the order dated 28.3.2005 is maintained permitted withdrawal of both M.J.C. No. 2322 of 2005 as also the earlier Request Case No. 12 of 2005 under order dated 17.4.2006 passed in M.J.C. No.2322 of 2005 as both the M.J.C. application and the Request Case were filed on behalf of the developer through Shri Ajay Kumar, Chairman who was neither signatory to the agreement dated 28.3.2001 nor was authorized by the Board of Directors to take consequential steps in the light of the agreement dated 28.3.2001. After withdrawal of the earlier request case as also the M.J.C. filed for substitution of the arbitrator, notice dated 9.5.2006, Annexure-4 was again served on the owner on behalf of the developer on instruction from Shri Pradeep Kumar, Director, who was signatory to the agreement dated 28.3.2001 requesting the owner to refer the dispute between them to the arbitrator but when no response was received, present request case was filed praying inter alia to appoint arbitrator to adjudicate the dispute between the parties asserting that construction in terms of the development agreement and the sanctioned map could not be completed in all respect as the construction work was stopped in compliance of the instructions of the P.R.D.A. dated 14/24.9.2001 for the reason that the validity of the original plan expired in July, 2001 and the owner in whose name plan was sanctioned by the P.R.D.A. in Plan Case No. 292 of 1995 never took steps for its renewal and the construction had to be stopped in compliance of the aforesaid instructions of the P.R.D.A. contained in letters dated 14/24.9.2001, Annexures D and E to the counter affidavit. The other reason which was shown in the notice for not completing the development work was that the owner had not ensured removal of the tenants from the portion of land as was undertaken by him under Sub-Clause(D) of Clause-12 of the development agreement. 3. By filing counter affidavit the owner has objected to the prayer for appointment of the arbitrator on various grounds, namely that the development agreement dated 28.3.2001 has been superseded by a new agreement between the parties which is dated 25.3.2002 and 28.3.2002 which does not contain any arbitration clause. In this connection it is pointed out with reference to letters dated 25/28.3.2002, Annexures- G and H that the owner had agreed to part with his owners share in the developed property on payment of 2.50 crores by 15.5.2002 and the developer had agreed to flay the said amount besides a sum of Rs. 25 lakhs for payment to the tenants, as they go on vacating the premises and to complete the payment to the tenants by the date last tenant vacates the portion of the lands in question. 25 lakhs for payment to the tenants, as they go on vacating the premises and to complete the payment to the tenants by the date last tenant vacates the portion of the lands in question. As both the owner and the developer were signatories to the aforesaid two letters, the earlier agreement dated 28.3.2001 stood superseded under the subsequent agreement dated 25/28.3.2002, Annexures- G and H. In support of plea of novation of contract, learned counsel for the owner referred to Sec. 62 of the Contract Act and relied on the following judgments of the Hon ble Supreme Court; namely; Union of India V/s. Kishorilal Gupta & Brothers, AIR 1959 SC 1362 , State of Maharashtra V/s. Nav Bharat Builders, 1994 Supp3 SCC 83, M/S P.K. Ramaiah and Company, 1994 Supp3 SCC 126 and Nathani Steels Ltd. V/s. The Associated Constructions, 1995 3 SCC 324. 4. It is further submitted that request for appointment of the arbitrator Vide notices dated 9.1.2005 and 9.5.2006, Annexure-4 is barred under law of limitation as the alleged breach of the agreement dated 28.3.2001 took place in the year 2001 or in the first quarter of the year 2002 and request for the appointment of the arbitrator ought to have been made within three years from the date of breach of the agreement and not in the year 2005/ 2006 as has been done by serving notices dated 9.1.2005/ 9.5.2006. It is further pointed out that the owner took possession of the site in question on 27.6.2002 on as is where is basis and in any case notice for appointment of the arbitrator should have been served on the owner within three years from 27.6.2002 but as notice dated 9.5.2006, Annexure-4 has been served beyond three years of the said date, this Court should dismiss the request case on the ground of limitation. In support of the plea of limitation learned counsel for the owner has relied on the judgment of the Hon ble Supreme Court in the case of S.B.P. Co. V/s. Patel Engineering Ltd. and another, 2005 8 SCC 618 as also over the case of J.C.Budhraj V/s. Chairman, Orissa Mining Corporation Ltd. and others, 2008 2 SCC 444 . 5. It is further pointed out on behalf of the owner with reference to the minutes of the proceeding of the Board of Directors of the developer held on 17.11. V/s. Patel Engineering Ltd. and another, 2005 8 SCC 618 as also over the case of J.C.Budhraj V/s. Chairman, Orissa Mining Corporation Ltd. and others, 2008 2 SCC 444 . 5. It is further pointed out on behalf of the owner with reference to the minutes of the proceeding of the Board of Directors of the developer held on 17.11. 2000, Annexure-A to the counter affidavit that Shri Pradeep Kumar, Director who was signatory to the development agreement dated 28.3.2001 was only authorized to execute the development agreement on behalf of the developer but Shri Kumar was neither authorized to serve any notice for appointment of the arbitrator nor was he authorized to file this request case, as such according to the owner in view of the provisions contained in Ss. 291 and 292 of the Companies Act, 1956, this request case is required to be dismissed as not maintainable for want of specific authorization of the Board of Directors in favour of Shri Pradeep Kumar to serve the notice for appointment of arbitrator as also to file this case. Reference in this connection has been made to the judgment of the Delhi High Court 1991 70 CC 388 , 401 Delhi and the Judgment of the Hon ble Supreme Court in the case of Dale & Carrington Investment (P) Ltd. & Another V/s. P.K. Prathapan & Others, 2005 1 SCC 212 . 5(A) Learned counsel for the owner also submitted that the request jurisdiction of this Court under the Act is a civil proceeding and the procedures provided in the Code of Civil Procedure are applicable by virtue of Sec. 141 of the Code of Civil Procedure and as leave was not sought while withdrawing the earlier Request Case No. 12 of 2005 and MJC No. 2322 of 2005 to institute another request case for appointment of arbitrator, this request case should not be entertained and in support of such submission reliance was placed on the Division Bench of this Court in the case of Beni Ram and others V/s. Ganga Sah and another, AIR 1968 Pat 284 . 5(B). 5(B). Learned counsel for the owner finally submitted that during the hearing of this application while considering the plea of the developer for appointment of arbitrator this Court should not look into the records of the earlier Request Case No. 12 of 2005 and MJC No. 2322 of 2005 in support of such plea reliance was placed on the judgment of the Supreme Court in the case of Sait Nagjee Purushotham & Co.Ltd. V/s. Vimalabai Prabhulal & others, 2005 8 SCC 252 , Paragraph-10 where the Hon ble Court observed that in a civil suit party has to plead and prove his case and the Court cannot look into the facts appearing in the records of the other case pertaining to the suit. 6. In rejoinder counsel for the developer submitted that terms of the contract is to be interpreted in the manner in which parties have understood the contents of the terms of contract and under letters dated 25/28.3.2002, Annexures- G and H, parties have only fixed the value of the owners share in the developed property in terms of Clause-12 of the development agreement dated 28.3.2001 which was to be paid by the developer to the owner by 15.5.2002 besides a sum of Rs. 25 lakhs for removal of the tenants from the portion of the land in question and when request was made by the developer Jo extend the time for payment of the owners share under letter dated 15.5.2002, Annexure-I then the owner under letter dated 16.5.2002, Annexure-J allowed time to the developer to pay the owners share of Rs. 2.50 crores by 31.5.2002 and at the same time made it clear that in the event owners share of Rs. 2.50 crores by 31.5.2002 and at the same time made it clear that in the event owners share of Rs. 2.50 crores is not paid by 31.5.2002, Clause-12 of the development agreement shall become applicable and according to the counsel for the developer from perusal of joint letters dated 25/28.3.2002, Annexures-G and H and the letter of the owner dated 16.5.2002, Annexure-J, it is crystal clear that there has been no novation of contract, rather it is evident from those letters that all through parties were acting in terms of the original development agreement which subsisted even after signing of the joint letters dated 25/28.3.2002 and the contents of the correspondences exchanged between the parties is required to be taken into consideration for the purpose of construction of the terms of the contract by the arbitrator when the matter is referred to him. Interpretation of a contract is a matter for the arbitrator to determine and this Court should refer the matter to the arbitrator to determine the dispute between the parties in the light of the original development agreement dated 28.3.2001 and the subsequent correspondences made between the parties on 25/28.3.2002 and 16.5.2002. Reference in this connection has been made to the judgment of the Hon ble Supreme Court in the case of Mcdermott International I.N.C. V/s. Burn Standard Co. Ltd. and others, 2006 11 SCC 181 , the case of Lata Construction and others V/s. Dr. Ramesh Chandra Ramniklal Sah and another, AIR 2000 SC 380 and the case of Kalianna Gounder V/s. Palani Gounder and another, AIR 1970 SC 1942 . 7. Ltd. and others, 2006 11 SCC 181 , the case of Lata Construction and others V/s. Dr. Ramesh Chandra Ramniklal Sah and another, AIR 2000 SC 380 and the case of Kalianna Gounder V/s. Palani Gounder and another, AIR 1970 SC 1942 . 7. As regards question of limitation it was submitted by the learned counsel for the developer that the owner failed to take steps for renewal of the original plan which expired in July, 2001 and the P.R.D.A. having stopped the work under letters dated 14.9.2001 and 24.9.2001, the developer had no option but to stop the construction work which could not be continued on account of the stoppage by the P.R.D.A as also on account of failure of the owner to remove the tenants which as per sub-Clause(D) of Clause-12 was the sole responsibility of the owner to remove the tenants and the time taken for removing the tenants from the site beyond 30.9.2001 by the owner was to be extended for completing the construction work after 31.3.2002 and as the site was never made free of the tenants the limitation of three years shall only begin after the site is cleared of the tenants and the time taken to clear the site is extended as till date neither the building plan has been renewed nor the site has been cleared of the tenants, the plea of limitation cannot be raised against the developer for the failure of the owner to obtain renewal of the building plan as also to clear the portion of site from the tenants. The construction can be completed only after the embargo on construction raised by the P.R.D.A. is removed and the site is free of tenants unless both the eventualities happen the developer was made helpless on account of the failure on the part of the owner and for failure of the owner the developer should not be punished on the plea of limitation raised by the owner after the developer has constructed four floors and several columns of the fifth floor. The assertion of the owner that they have taken possession of the building site on 27.6.2002 on as is where is basis is also disputed by the developer in the rejoinder as they have stated that present is not the proceeding to resolve the dispute about the possession and the manner in which it was taken which shall be the concern of the arbitrator. Learned counsel for the developer further pointed out that after appointment of the Arbitrator under orders dated 23.8.2005, prayer was made to substitute the arbitrator by filing M.J.C. No. 2322 of 2005 on 8.9.2005 and the said case for substitution of the arbitrator remained pending in this Court until 17.4.2006 when the substitution application as also Request Case No. 12 of 2005 was permitted to be withdrawn on technical ground, as such, according to learned counsel for the developer the period of limitation for filing the present case should be reckoned with effect from 17.4.2006 on which date the substitution application and Request Case No. 12 of 2005 was permitted to be withdrawn or in any case w.e.f. 5.2.2005 when the owner repudiated the development agreement dated 28.3.2001 and refused to make appointment of the arbitrator in the light of request contained in notice dated 9.1.2005 as according to the owner request for appointment of the arbitrator under notice dated 9.1.2005 was made beyond three years of the expiry of the development agreement. 8. As regards lack qf authorization to serve notice for appointment of arbitrator as also to file the instant request case, learned counsel for the developer submitted that minutes of the proceedings of the Board of Directors of the developer Company held on 17.11.2000, Annexure-A, authorized Director, Pradeep Kumar not only to sign the development agreement but also to do all acts related to the agreement and as dispute arose between the developer and the owner, it was the duty of the Director who signed the development agreement to take necessary consequential steps and thus the plea that request case be dismissed for want of specific authorization to serve notice for appointment of the arbitrator as also to file the instant request case is wholly misconceived. 9. 9. Plea of novation of contract raised by the owner is required to be examined in the light of the provisions contained in Sec. 62 of the Contract Act, 1872 as also the authoritative pronouncement of the Hon ble Supreme Court in the case of Union of India Versus Kishorilal Gupta and Brothers (supra). Facts of the said case were as follows; A partnership firm styled as Kishorilal Gupta and Brothers entered into three contracts with the Government. Each of the said contracts contained an arbitration clause which was comprehensive in nature like the arbitration clause of the case in hand. The disputes under the three contracts were amicably settled without reference to the arbitration clause and in terms of the settlement supplier firm even made part payment and thereafter stopped making further payments in terms of the settlement. The Government, accordingly ignoring the settlement served notice demanding payment under the three original contracts which was challenged by filing application u/s. 33 of the Arbitration Act, 1940 in the original side of the High Court which was dismissed and the matter was referred to the arbitrator who submitted an award directing the firm to make payment to the Government which was challenged on the ground that the arbitration clause stood finally determined by, the settlement of the dispute between the parties. Hon ble Supreme Court having considered the terms of settlement concluded that there was accord and satisfaction of the original contract and the substituted agreement discharged the existing cause of action and therefore the arbitrator had no jurisdiction to entertain any claim with regard to the original contract. While recording such finding Hon ble Supreme Court observed as follows; "From the aforesaid authorities it is manifest that a contract may be discharged by the parties thereto by a substituted agreement and thereafter the original cause of action arising under the earlier contract is discharged and the parties are governed only by the terms of the substituted contract. While recording such finding Hon ble Supreme Court observed as follows; "From the aforesaid authorities it is manifest that a contract may be discharged by the parties thereto by a substituted agreement and thereafter the original cause of action arising under the earlier contract is discharged and the parties are governed only by the terms of the substituted contract. The ascertainment of the intention of the parties is essentially a question of fact to be decided on the facts and circumstances of each case." In the light of the aforesaid observations of the Hon ble Supreme Court, the facts of the present case may be recapitulated as follows; Parties entered into a development agreement dated 28.3.2001 in response whereto building activity was undertaken by the developer over the lands in question and the developer constructed four floors and several columns of the fifth floor. While such construction was in progress P.R.D.A. stopped construction work under their letters dated 14/24.9.2001 for the failure of the parties to get the sanctioned map renewed as its validity stood expired on 31.7.2001 and from the materials on record it is not possibie for this Court to conclude at this stage as to who is responsible for not obtaining the renewal of the site plan, validity whereof expired in July, 2001. 10. The plea that the parties have revised the earlier development agreement under subsequent agreements dated 25/28.3.2002, Annexures-G and H is required to be considered by reading the two letters in between the lines as it is well known that the terms of the contract is to be interpreted in the manner in which parties have understood the contents of the terms of the contract. From perusal of the two letters dated 25/28.3.2002, Annexures-G and H it appears that thereunder parties have only fixed the value of the owners share in the developed property in terms of Clause-12 of the development agreement dated 28.3.2001 with further stipulation that the developer should pay the value of the owners share to the owner by 15.5.2002 together with a sum of Rs. 25 lakhs for removal of the tenants from the portion of the land in question. 25 lakhs for removal of the tenants from the portion of the land in question. The request of the developer to extend the time for payment of the owners share made under letter dated 15.5.2002, Annexure-I was allowed by the owner under letter dated 16.5.2002 and time until 31.5.2002 was given to the developer to pay the owners share of Rs. 2.50 crores but at the same time it was made clear that in the event owners share of Rs. 2.50 crores is not paid by 31.5.2002, Clause-12 of the original development agreement shall become applicable. It is therefore, evident that while parties were exchanging letters dated 25/28.3.2002 and 15/16.5.2002, Annexures-G, H, I and J, they always had in their hindsight the original development agreement dated 28.3.2001 and thus the submission of the owner that the original development agreement has been superseded by the subsequent agreement does not appear to be correct and accordingly it is held that all through parties have been acting in terms of the original development agreement and when the developer failed to make payment of the owners share by 31.5.2002 as was required under letter dated 16.5.2002, the owner ought to have resorted to Clause-12 of the development agreement but as proclaimed by him de hors Clause 12 of the development agreement he has proceeded to take possession of the site in question on as is where is basis and has thereby abrogated the development agreement, consequence whereof must necessarily be assessed and examined by the arbitrator. 11. Plea of limitation raised by the owner is to be examined in view of the fact that the development agreement was executed on 28.3.2001 providing for constructions as also sale of the owners share in the developed property by the developer on or before 31.3.2002 in the alternative the developer should purchase the owners share by 30.4.2002. Under letters dated 25/28.3.2002 the value of the owners share in terms of the development agreernent dated 28.3.2001 was fixed by the parties at Rs. 2.50 crores which was to be paid by the developer to the owner by 15.5.2002 which time was extended till 31.5.2002. On the failure of the developer to pay the owners share of Rs. Under letters dated 25/28.3.2002 the value of the owners share in terms of the development agreernent dated 28.3.2001 was fixed by the parties at Rs. 2.50 crores which was to be paid by the developer to the owner by 15.5.2002 which time was extended till 31.5.2002. On the failure of the developer to pay the owners share of Rs. 2.50 crores, the owner ignoring Clause-12 of the development agreement, unilaterally took possession of the partially developed site on 27.6.2002 which fact is not being accepted by the developer but even assuming the assertion of the owner to be correct, the request for appointment of arbitrator was made by the developer under notice dated 9.1.2005 which is within three years of the owner unilaterally proceeding to take possession of the partially developed site, as such, the request made by the petitioner developer for appointment of the arbitrator was within three years of the date on which dispute arose, in the circumstances, notice dated 9.1.2005 issued on behalf of the developer requesting the owner to appoint arbitrator was within the period of limitation and ought to have been respected by the owner but as the owner refused to consider the request of the developer to refer the dispute to the arbitrator on the ground of limitation which is evident from the reply on behalf of the owner dated 5.2.2005, Annexure-1, this Court under order dated 23.8.2005, Annexure-2 appointed Sri Justice Birendra Prasad Sinha, a retired Judge of this Court as arbitrator to adjudicate the dispute between the parties. The developer thereafter on 8.9.2005 filed M.J.C.No. 2322 of 2005 praying inter alia to substitute the arbitrator as the developer had subsequently learnt that Shri Justice Birendra Prasad Sinha is related to the owner. The owner filed counter affidavit in the said M.J.C. denying his relationship with Shri Justice Sinha and further submitted that no serious prejudice will be caused to the parties if order dated 28.3.2005 appointing Shri Justice Sinha as arbitrator is maintained. The owner filed counter affidavit in the said M.J.C. denying his relationship with Shri Justice Sinha and further submitted that no serious prejudice will be caused to the parties if order dated 28.3.2005 appointing Shri Justice Sinha as arbitrator is maintained. This Court without going into the questions as to whether Shri Justice Birendra Prasad Sinha was related to the owner and whether prejudice will be caused to the parties if the order dated 28.3.2005 appointing Shri Justice Sinha as arbitrator is maintained permitted withdrawal of both M.J.C. No.2322 of 2005 as also the earlier Request Case No. 12 of 2005 under orders dated 17.4.2006 passed in M.J.C. No. 2322 of 2005 on technical ground as both the M.J.C. application and the request case were filed on behalf of the developer through Shri Ajay Kumar, Chairman who was neither signatory to the development agreement dated 28.3.2001 nor was authorized by the Board of Directors to take consequential steps in the light of agreement dated 28.3.2001. After withdrawal of the earlier request case as also the M.J.C. application filed for substitution of the arbitrator notice dated 9.5.2006, Annexure-4 was again served on the owner on behalf of the developer on instructions from Shri Pradeep Kumar, Director who was signatory to the development agreement dated 28.3.2001 as also authorized under resolution of the Board of Directors of the developer company dated 17.11.2000, Annexure-A to the counter affidavit not only to sign the development agreement but also to do all acts related to the agreement and as dispute arose between the developer and the owner it was the duty of Shri Pradeep Kumar who had signed the development agreement to take the remedial steps and when this Court under orders dated 17.4.2006 passed in M.J.C. No. 2322 of 2005 permitted withdrawal of the earlier request case and the substitution application on technical ground, that the earlier request case and the substitution application was filed by Sri Ajay Kumar, Chairman who was never signatory to the development agreement nor was authorized by the Board of Directors to take consequential/ remedial measures by this Court necessarily permitted the signatory to the development agreement to take remedial measures in continuation of the steps which have already been taken at the instance of Shri Ajay Kumar, Chairman of the Company and in my opinion the subsequent notice dated 9.5.2006 is in continuation of the earlier notice dated 9.1.2005 and the reply dated 5.2.2005 and thus the plea raised by the owner that these proceedings are barred by limitation is misconceived and is rejected. 12. 12. The last submission raised by the owner that Shri Pradeep Kumar, Director is neither authorized to serve the notice dated 9.5.2006, Annexure-4 nor is authorized to file the present request case also appears to be misconceived as from perusal of the minutes of the proceedings of the Board of Directors dated 17.11.2000, Annexure-A would indicate that Shri Pradeep Kumar was not only authorized to sign the development agreement but was also authorized to do all acts related to the development agreement which in the opinion of this Court would necessarily include remedial measures like serving of notice as also filing of the instant case for appointment of arbitrator and appreciating the said resolution of the Board this Court permitted withdrawal of the earlier request case as also application for substitution of the arbitrator which was filed by Shri Ajay Kumar, Chairman who was neither signatory to the development agreement nor was authorized to do all acts related to the development agreement. In view of my observations above, the plea that the present case at the instance of Shri Pradeep Kumar is not maintainable is, accordingly rejected. 13. In view of the earlier consent order dated 23.8.2005 passed in Request Case No. 12 of 2005, I was inclined to appoint Shri Justice Birendra Prasad Sinha, a retired Judge of this Court as an arbitrator to adjudicate the dispute between the parties but before Shri Justice Sinha could enter the reference, the developer filed M.J.C. No. 2322 of 2005 on 8.9.2005 for substitution of the arbitrator on the ground that Shri Justice Sinha was related to the owner which allegation was denied by the owner in his counter affidavit filed in the said M.J.C. application on 21.11.2005. In paragraph-8 of the said counter affidavit the owner conceded that there is no apprehension of serious prejudice if the order passed by this Court dated 23.8.2005 is maintained. In paragraph-8 of the said counter affidavit the owner conceded that there is no apprehension of serious prejudice if the order passed by this Court dated 23.8.2005 is maintained. This Court without going into the questions as to whether Shri Justice Birendra Prasad Sinha was related to the owner and whether prejudice will be caused to the parties if the order dated 23.8.2005 appointing Shri Justice Birendra Prasad Sinha as arbitrator is maintained permitted withdrawal of both the M.J.C. No. 2322 of 2005 as also the earlier Request Case No. 12 of 2005 under orders dated 17.4.2006 passed in M.J.C. No. 2322 of 2005 on technical ground as both the M.J.C. application and the request case was filed on behalf of the developer through Shri Ajay Kumar, Chairman who was neither signatory to the development agreement dated 28.3.2001 nor was authorized by the Board of Directors to take consequential steps in the light of the development agreement dated 28.3.2001, as such, when this Court permitted withdrawal of the earlier request case and substitution application on technical ground and thereafter the matter has been heard on merits as would appear from the discussions above as also to ensure that Justice is not only done but also appears to have been done between the parties, deems it expedient to appoint Hon ble Shri Justice B.P. Singh, a retired Judge of the Hon ble Supreme Court as an arbitrator to adjudicate the dispute between the developer and the owner pursuant to the development agreement dated 28.3.2001, parties are directed to seek his Lordships consent within four weeks so that order appointing his Lordships as arbitrator may be issued thereafter. Put up after four weeks maintaining its position.