JUDGMENT Hon’ble Bharati Sapru, J.—This arbitration application has been filed by the applicant Dharampal Satyapal Ltd. under Section 11 (6) of the Arbitration and Conciliation Act, 1996 with a prayer that this Court be pleased to appoint the arbitrator to adjudicate upon the claim of the applicant, which has arisen in terms of the agreement dated 6.12.2002 and further there is a second prayer that such other and further order may be passed which this Court may deem fit and proper in the facts and circumstances of the case. 2. The prayer made by the applicant is strongly opposed by the respondent Dinesh Enamelled Wire Industries (P) Ltd. 3. The facts of the case are that the respondent company had become a lease holder on 8.11.1979 of plot No. 27 Block B, Sector 3, NOIDA, District Gautam Budh Nagar (hereinafter referred to as the plot in question). The lease had been granted by New Okhla Industrial Development Authority. On the plot of the land that was leased out to the respondent, it had built a factory shed and office premises. 4. The applicant was inducted by the respondent as a tenant to the said industrial plot at a monthly rent in the year 2000. 5. According, to the facts as stated by the applicant in the year 2002, the respondent company approached the applicant and offered to sell the said property in occupation of the applicant and two other concerns as its tenants for a total sale consideration of Rs. 60 lakhs. A sum of Rs. 10 lakhs was to be paid by the applicant, which was paid by an account payee cheque and the respondent encashed the same and acknowledged receipt thereof. A reference may be had to clauses 1, 1 (a), (b) and (c) and clauses 2 and 3 of the agreement to sell dated 6.12.2002, which is on record as Annexure 3 to the application. The same are quoted below : “(1) That the total consideration of the sale of plot and factory shed and attachments thereto has been fixed for Rs. The same are quoted below : “(1) That the total consideration of the sale of plot and factory shed and attachments thereto has been fixed for Rs. 60,00,000/- (Rupees sixty lacs only) to be paid by the party of the second pat to the party of the first parts as under; (a) Rs,10,00,000/- (Rupees ten lacs only) has been paid by the party of the second party by way of cheque No. 101705 dated 6.12.02 drawn on State Bank of India, Chandni Chowk, Delhi 110 006 as advance as earnest money towards purchase of the property and factory shed to the party of the first part the receipt of which is hereby acknowledged by the party of the first part. (b) Rs. 20,00,000/- (Rupees twenty lacs only) shall be paid upon receipt of permission from Noida Authority for transfer; (c) Balance amount of Rs. 30,00,000/- (Thirty lacs) shall be paid at the time of transfer/registration of sale deed. (2) That the party of the first part shall obtain no objection certificates from the Project Engineering (JAL), Noida, Area Development Officer (Industries) concerned, Uttar Pradesh State Electricity Board, Noida and/or any other agency required for said purchase before submission to Transfer Application under this agreement to NOIDA. (3) That the party of the first part shall obtain Income Tax Certificate from the concerned Income Tax Department on Form No. 34-A under Section 230 (A)/get permission under chapter XXC of the Income Tax Act, 1956 and also obtain no objection certificate from other concerned authorities such as the financial institutions and banks before submitting Transfer Application to the office of the Sub-Registrar, Noida...” 6. The agreement to sell dated 6.12.2002 entered into between the parties contained an arbitration clause, which reads as under : “Any dispute, if arises in respect of the terms of this agreement, it shall be solely decided by Mr. Hari Advocate, son of late Sri Megh Raj, resident of 90/40B, Malviya Nagar, New Delhi, whose decision/award shall be final on both parties.” 7. In terms of the said agreement, the respondent company accepted from the applicant part sale consideration of Rs. 10 lacs (Rupees ten lacs) by cheque No. 101705 dated 6.12.2002. The said cheque was duly encashed and part sale consideration was realized by the respondent. In terms of the said agreement, the respondent company accepted from the applicant part sale consideration of Rs. 10 lacs (Rupees ten lacs) by cheque No. 101705 dated 6.12.2002. The said cheque was duly encashed and part sale consideration was realized by the respondent. The respondent company also executed a ‘’receipt’ acknowledging the said cheque and the receipt which read as under : “Received with thanks from M/s. D.S. Ltd., CH No. 101705 Dt. 6.12.2002, Rs. 10,00,000/- (Ten lakhs only) drawn on State Bank of India, Chandni Chowk, Delhi 110 006 against agreement to sale of factory B-27 Sector 3, NOIDA. For Dinesh Enamelled Wire Ind. Pvt. Ltd. Sd/ (R.K. Agarwal) Director” A copy of the receipt as given by the respondent and the certificate of the banker are already appended on record as Annexure 4 and 5 to the application. 8. After signing of this agreement and payment of initial amount of Rs. 10 lakhs, the applicant company awaited the clearances and no objections to be obtained by the respondent from various authorities. The applicant states that the respondent at all times kept giving oral assurances that it was in the process of obtaining clearances from various authorities and it was taking time to do so. 9. The applicant has further averred that during the period that the applicant was awaiting the clearances, the relationship between the parties was cordial and the applicant continued to occupy the industrial plot and during this period, no rent was ever demanded by the respondent from the applicant. Although under clause 10 of the agreement, it had been agreed that the sale deed would be executed upto 31.12.2003 or earlier by giving 15 days notice. However, the clearances had not come through and the applicant continued to occupy the plot. 10. Initially, the relationship of the applicant and the respondent was that of a landlord and tenant, a rent deed dated 1.6.2000 had been entered upon between the parties, by which the respondent was holding security deposit of Rs. 2,61,000/- i.e. equivalent to nine months rent. The rent deed dated 1.6.2000 was initially to continue upto 31.3.2002 which was extended till March, 2003 and was a document independent of the lease made on 6.12.2002. 11. 2,61,000/- i.e. equivalent to nine months rent. The rent deed dated 1.6.2000 was initially to continue upto 31.3.2002 which was extended till March, 2003 and was a document independent of the lease made on 6.12.2002. 11. According to the applicant, it was taken completely by surprise when it received a legal notice dated 24.3.2006 from the respondent company by which a demand for rent was made from the applicant along with other allegations. The said notice dated 24.3.2006 however did not refer to or mention the agreement to sell dated 6.12.2002 and only alleged that the applicant was a defaulter towards rent. The notice sent by the respondent company was replied by the applicant on 3.4.2006. Prior, to that the applicant gave notice to the respondent company on 31.3.2006 seeking specific performance of the contract dated 6.12.2002 on account of the fact that part consideration had already passed on between the parties. 12. The respondent company sent legal reply on 27.4.2006 by which it completely denied the existence of agreement dated 6.12.2002. The applicant replied on 13.5.2006 and by the said reply, it sought a reference of the dispute to the arbitrator appointed by the parties in terms of the agreement dated 6.12.2002. 13. Sri Hari who was an advocate and had been named as the sole arbitrator in the agreement to sell dated 6.12.2002, conveyed his inability by a letter dated 23.5.2006 and declined to act as an arbitrator. 14. The applicant therefore approached the High Court at Delhi for the appointment of arbitrator. The High Court of Delhi returned the petition saying that it had no jurisdiction in the matter and returned the petition to be filed before the appropriate Court by 1.9.2006. 15. In such circumstances, the applicant filed an application under Section 9 of the Act for grant of injunction before the District Judge, NOIDA where the property was situated and an injunction was granted by the District Judge on 27.8.2007. A portion of the injunction order dated 27.8.2007 is given below : “8....... 15. In such circumstances, the applicant filed an application under Section 9 of the Act for grant of injunction before the District Judge, NOIDA where the property was situated and an injunction was granted by the District Judge on 27.8.2007. A portion of the injunction order dated 27.8.2007 is given below : “8....... In my opinion, from the contradictory averments of the parties one thing is sufficiently clear that a dispute had arisen between the parties relating to the alleged agreement to sell dated 6.12.2002 and since the respondent has admitted the execution of that deed, which contains an arbitration clause also, therefore, the dispute between the parties is to be decided by the Arbitrator in accordance with the agreement. Whether the alleged agreement to sell dated 6.12.2002 is actually an agreement to sell plot No. B-27 of Block B, Sector 3, Noida, or it is a receipt of the security amount of the rent, is also to be decided by the Arbitrator. I am also of the view that since prima facie the agreement dated 6.12.02 shows that it is an agreement to sell and not a receipt of the security amount of rent, therefore, there appears no reason to doubt the contentions of the petitioner. The question relating to the circumstances under which the alleged agreement could not be acted-upon, is also to be decided by the arbitrator, as the parties are disputing those circumstances... 9............................ 10. Admittedly, the petitioner is in possession of the property in dispute. Whether the possession of the petitioner is in part performance of the agreement to sell as prospective owner in accordance with the agreement dated 6.12.2002, or as a tenant, is a matter of dispute and requires to be decided by the Arbitrator.....” 16. The applicant has stated that the injunction order which was granted by the District Judge, NOIDA has not been stayed or modified by any superior Court and is still in existence. 17. Since the respondent failed to act upon the agreement dated 6.12.2002 and since Sri Hari a named arbitrator declined to act as an arbitrator, the applicant has approached this Court with the present application under Section 11 (6) of the Arbitration and Conciliation Act,1996, in pursuance of the arbitration clause in the agreement. 18. 17. Since the respondent failed to act upon the agreement dated 6.12.2002 and since Sri Hari a named arbitrator declined to act as an arbitrator, the applicant has approached this Court with the present application under Section 11 (6) of the Arbitration and Conciliation Act,1996, in pursuance of the arbitration clause in the agreement. 18. The contention of the applicant is that agreement dated 6.12.2002 is a valid agreement as it contains a description of the property, the intention and desire of the respondent to sell and that of the applicant to purchase, describes the sale consideration and part payment made by the applicant and acceptance of the transaction by the respondent, it describes in detail the obligations of the respective parties, the acceptance on the part of the respondent to get certain clearances made, it also describes the time period within which the agreement to sell would be executed and most important in this context is that it also entailed the arbitration clause whereby if disputes were to arise, it would be settled by way of an arbitration under a named arbitrator Sri Hari whose award would be final and binding on both the parties. 19. The applicant further contends that the agreement also contained a clause that if any clause of the agreement were declared invalid, then the agreement shall be enforceable and no party would raise any issue with regard to the infirmity of any clause. 20. The applicant further contends that since the named arbitrator Sri Hari had declined to act as an arbitrator, the applicant was entitled to approach this Court under Section 11 (6) of the Act for the appointment of arbitrator to settle the dispute between the parties. 21. All these contentions of the applicant have been strongly opposed by the respondent Dinesh Enamelled Wire Industries (P) Ltd. 22. However two facts are not disputed by the respondent. Firstly, that on 1.6.2000 the applicant was inducted as a tenant on the aforesaid plot with factory shed along with its two sister concerns namely Swastik Udyog and Rishi Sidhi Logistic. 23. The applicant was inducted as tenant at a rent of Rs. 39,000/- per month, Swastik Udyog at a rent of Rs. 1,500/- per month and Ridhi Sidhi Logistic at a rent of Rs. 2,500/- per month. 24. 23. The applicant was inducted as tenant at a rent of Rs. 39,000/- per month, Swastik Udyog at a rent of Rs. 1,500/- per month and Ridhi Sidhi Logistic at a rent of Rs. 2,500/- per month. 24. Secondly, the respondent also does not deny that agreement to sell was entered between the parties on 6.12.2002. However it contends that agreement dated 6.12.2002 was an unregistered document and also admitted that the property which was rented out to the applicant would continue on the rent agreement till the document dated 6.12.2002 i.e. agreement to sell was registered. 25. The respondent further contends that the agreement to sell provided two remedies— (i) If the party of the first part shall fail to register the sale deed in respect of the said property, the part of the 2nd party would be free to enforce sale and registration thereof at the cost of the 1st party after full payment. (ii) Any dispute if arises in respect of terms of this agreement it shall be solely decided by Mr. Hari, Advocate son of Late Sri Mekhraj R/o 90-40-B Malviya Nagar, New Delhi, whose decision/award shall be final on both parties. 26. The facts as stated by the respondent further are that upto 31.3.2003, the applicant paid rent at the rate of Rs. 39,000/- per month and thereafter from 1.4.2009, the applicant became defaulter and therefore the respondent gave notice to the applicant on 24.3.2006 under Section 106 of the Transfer of Property Act terminating the tenancy of the applicant and requiring him to pay the entire arrears of rent within thirty days or to vacate the premises. 27. The respondent accepts that a notice was issued to him on 31.3.2006 by the applicant for executing the sale in pursuance of the alleged agreement to sell dated 6.12.2002. On 13.5.2006 another notice was issued by the applicant through his counsel Sri Jitendra Mohan Mathur, Advocate that the dispute is being referred to the named arbitrator Sri Hari. The respondent also accepts the notice that on 23.5.2006 Sri Hari declined to act as an arbitrator. 28. On 13.5.2006 another notice was issued by the applicant through his counsel Sri Jitendra Mohan Mathur, Advocate that the dispute is being referred to the named arbitrator Sri Hari. The respondent also accepts the notice that on 23.5.2006 Sri Hari declined to act as an arbitrator. 28. The first objection as taken by the learned counsel for the respondent is that agreement to sell dated 6.12.2002 is an unregistered document and hence void and in view of the provisions of Section 54 of the Transfer of Property Act, the transfer of the immovable property of value of more than Rs. 100.00 can only be made by way of a registered instrument and instant document which is an unregistered one does not create any interest or charge on such property. 29. The respondent has also relied on the provisions of Section 17 (1)(b) of The Registration Act, 1908, which provides that any non-testamentary instrument, which purports or operate to create, any declaration, assistance, limits or extinguish, whether in the present or in the future any title or interest in an immovable property, must be registered. 30. Learned counsel for the respondent further relies on the provision of Section 49 of the Registration Act, which provides that any document which is required by the provisions of Section 17 of the Registration Act to be registered or by any provision of the Transfer of Property Act or any other law for the time being enforced to be registered or to confer any power or to be registered would not have any effect unless it is registered. The provisions of Section 49 of the Registration Act is quoted below : 49. The provisions of Section 49 of the Registration Act is quoted below : 49. Effect of non-registration of documents required to be registered— No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall— (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c ) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered : Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument.” 31. Learned counsel for the respondent also referred to the proviso of Section 49 of the Registration Act submitting that any unregistered document affecting the immovable property, may be taken as evidence of any collateral transaction, not required to be affected by a registered instrument. Thus his main objection is that because the agreement to sell dated 6.12.2002 is an unregistered agreement, it cannot be given effect to in view of the provisions of Section 54 of the Transfer of Property Act read with Section 17 of the Registration Act as it does not create any legal relationship between the parties and it cannot be taken in evidence and therefore is not enforceable by the law. 32. The second objection as raised by the learned counsel for the respondent is that the agreement to sell dated 6.12.2002 is not an arbitration agreement within the meaning of Section 7 of the Arbitration and Conciliation Act, 1996 as under the said provision an arbitration agreement is in which an agreement by the parties to submit to arbitration all or certain disputes between the parties, which creates a definite legal relationship whether contractual or not. His argument is that this agreement to sell is not in respect of a defined relationship and therefore is not arbitration agreement. 33. His argument is that this agreement to sell is not in respect of a defined relationship and therefore is not arbitration agreement. 33. Secondly the learned counsel for the respondent submits that because the instrument is unregistered and is in respect of the immovable property, it does not create any jural relationship between the parties in view of the provisions of Section 54 of the Transfer of Property Act read with Section 17 and 49 of the Registration Act. 34. His next objection is that in the alleged agreement dated 6.12.2002 there is no consent of the parties to submit to the arbitrator for enforcement of the agreement to sell. 35. Learned counsel for the respondent also submits that the instrument dated 6.12.2002 in clear terms provides that the agreement of tenancy in present shall continue till the document is registered. The said instrument contemplates total 11 terms and conditions agreed between the parties. The instrument also provides two remedies-first enforcement of sale and registration if the respondent fails to register the sale deed that too after payment of full consideration. In case of dispute arises in respect of terms of the agreement, the same shall be decided by Sri Hari Advocate. Thus from the perusal of the instrument itself, it is apparent that there is no provision of enforcement of agreement to sell and its registration by referring the dispute to the arbitrator as there is no such consent of the parties. So far the dispute in respect of terms of agreement is concerned that too has not been agreed to be referred to the arbitrator but it is confined to the individual person namely Sri Hari Advocate. There is no implied or express consent of the parties for arbitration even in respect of terms of the agreement. 36. The terms of the agreement has been detailed in the instrument from terms No. 1 to 11, which does not include the remedy of specific performance. 37. Fourthly the learned counsel for the respondent submits that because Sri Hari Advocate, has declined to act as arbitrator, it has brought to an end the arbitration agreement. Because the agreement does not contemplate the reference to any other arbitrator and the consequences of this is that unless the parties enter into a fresh arbitration agreement, no arbitrator can be appointed under Section 11 (6) of the Act of 1996. 38. Because the agreement does not contemplate the reference to any other arbitrator and the consequences of this is that unless the parties enter into a fresh arbitration agreement, no arbitrator can be appointed under Section 11 (6) of the Act of 1996. 38. Fifthly, the respondent objects that no notice was ever given by the applicant for referring the dispute to the arbitrator but simply a notice was sent on 13.5.2006 through Sri Jitendra Mohan Mathur that Sri Hari has refused to act as arbitrator and without any further notice, the applicant thereafter approached the Delhi High Court and then Allahabad High Court. 39. Sixthly, the learned counsel for the respondent has submitted that the present application under Section 11 (6) of Act of 1996 is not maintainable in view of the fact that no request has been made by the applicant to the respondent for agreeing to the appointment of arbitrator and therefore the present application is premature and should not be entertained. 40. Seventhly, he has objected and submitted that Section 53A of the Transfer of Property Act is not attracted in the facts and circumstances of the case. It is applicable in the case of contract to re-transfer and not for agreement to sell. In case of the State of U.P. in view of the amendment in Section 54 of the Transfer of Property Act by U.P. Act No. 57 of 1976, such a contract can be made only by registered instrument. 41. Section 10 of the Indian Contract Act, 1872 provides that all agreements are contract if they are made by the free consent of the parties competent to contract for law, for a lawful consideration and are not declared to be void. Second paragraph of Section 10 of the Indian Contract Act provides that nothing contained will affect any law where the contract is required to be made in writing or any law relating to registration of the documents. 42. The respondent thus contended that any instrument of agreement which is under law required to be registered and if the same is not registered, is not a contract. 43. Section 8 of the Transfer of Property Act provides for ‘operation of transfer’ and envisages that a transfer of property passes forthwith to the transferee all the interest which transferor is then capable of passing in the property and in the legal incidents thereof. 43. Section 8 of the Transfer of Property Act provides for ‘operation of transfer’ and envisages that a transfer of property passes forthwith to the transferee all the interest which transferor is then capable of passing in the property and in the legal incidents thereof. Thus in application of Section 53-A of the Transfer of Property Act, there must be a contract for transfer of the property and not merely a contract for sale or agreement to sell. An agreement to sell becomes a contract if it fulfills the conditions of Section 10 of the Indian Contract Act, meaning thereby if it is required to be registered under any law, the same is to be registered and if it is not registered by any reason whatsoever, the agreement will not become a contract. 44. Further such contract must be for transfer of the property, meaning thereby it must pass property forthwith to the transferee all the interest and if the interest are not transferred, the same is merely an agreement for transfer in future providing therein that the tenancy will continue. In the circumstances, the terms which are necessary to constitute the transfer can not be ascertained with reasonable certainty. 45. On the other hand, the instrument dated 6.12.2002 clearly provides that the interest in the property will be transferred only after registration of the sale. 46. Admittedly the applicant is not in possession of the property in question in pursuance of the contract for transfer but he is in possession of it as tenant and the said possession of the applicant in pursuance of the tenancy agreement with effect from 1.6.2000, is not covered under Section 53-A of the Transfer of Property Act. 47. Eightly the respondent objected that the alleged instrument of agreement to sell cannot be enforced by an arbitrator. 48. Section 28 of the Act of 1996 provides that where the place of arbitration is situated in India in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for time being in force in India. 49. 48. Section 28 of the Act of 1996 provides that where the place of arbitration is situated in India in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for time being in force in India. 49. The substantive law in forced in India as per provision of Section 54 of the Transfer of Property Act and Section 17 read with Section 49 of the Registration Act clearly requires that an agreement to sell relating to the immovable property must be registered and if it is not registered, the same may not create any legal relationship and the same may not be taken as evidence. 50. Thus the reference to the dispute of the arbitrator is of no consequence as the arbitrator is legally barred to enforce the agreement to sell. 51. Learned counsel for the respondent thus summed up that the agreement to sell dated 6.12.2002 being an unregistered agreement could not be enforced by any Court of law as it did not create any jural relationship between the parties and since the named arbitrator in the un-registered agreement to sell has refused, no arbitrator could be appointed by this Court in the present proceedings. 52. In support of his argument, learned counsel for the respondent relied on a decision of Hon’ble Supreme Court in the case of Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 . The dictum of law in this case is that the arbitral tribunal is mandated to decide the dispute in accordance with the substantive law for the time being in force. There is no difficulty in accepting this proposition and indeed all Courts are bound to decide the matters in accordance with the substantive law in India. 53. The next case relied upon by the learned counsel for the respondent is Jagdish Chandra v. Ramesh Chandra and others, (2007) 5 SCC 719 for the purpose of establishing that mere use of word “arbitration” or “arbitrator” in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. 54. 54. Third decision as cited by the learned counsel for the respondent is TDM Infrastructure (P) Ltd. v. UE Development India Pvt. Ltd., (2008) 14 SCC 271 , for the purpose of establishing the proposition that an arbitrator is bound to decide the dispute as per the substantive law of India. 55. Last decision as cited by the learned counsel for the respondent is Patel Natwarlal Rupji v. Kondh Group Kheti Vishayak and another, (1996) 7 SCC 690 and according to this proposition of law, if an agreement itself is inoperative and not capable of being performed, the matter cannot be referred to the arbitrator. 56. In reply to the objections made by the learned counsel for the respondent, the learned counsel for the applicant has argued in response-firstly that even if the agreement to sell is unregistered document, it would not affect the right of the applicant to seek the appointment of an arbitrator because the applicant submits that arbitration clause in agreement to sell or any document, which is subject matter of arbitration, is independent and issues relating to it, would fall within the jurisdiction of the arbitrator and he would decide the merits or demerits of a particular document or its acceptance or non-acceptance. 57. Learned counsel for the applicant has argued that in the present matter, the agreement to sell dated 6.12.2002 is accompanied by a receipt of payment and the agreement itself is an independent document as it contains a description of the property, the sale consideration and the payment received by the respondent. Further he has submitted that the receipt as issued by the respondent is an independent document and is enforceable and does not require any registration. Further he has argued that under the provisions of Section 7 of the Arbitration and Conciliation Act, 1996, there is no necessity to get the arbitration agreement registered. For this purpose, learned counsel has relied upon a decision of Division Bench of Allahabad High Court in the case of A.R.C. Overseas Private Limited v. Bougainvillea Multiplex and Entertainment Centre Pvt. Ltd., 2008 (2) AWC 1212 . In this decision, this Court has held that if any arbitration clause exists in an unregistered document, even then the Court is under jural obligation to refer the parties to arbitration in terms of the Arbitration and Conciliation Act, 1996. 58. In this decision, this Court has held that if any arbitration clause exists in an unregistered document, even then the Court is under jural obligation to refer the parties to arbitration in terms of the Arbitration and Conciliation Act, 1996. 58. Learned counsel for the applicant has further argued that the words “every promise and every set of promise forming the consideration for each other is an agreement”. Learned counsel in support of this proposition has relied on a decision of the Delhi High Court dated 27.4.2009 in Arbitration Petition No. 244 of 2008 (N.I.I.T. Institute of Information Technology v. West Star Construction Pvt. Ltd.). In Gaazra International v. Food Corporation of India, 96(2002) DLT581, the Delhi High Court while interpreting the scheme of the new Arbitration Act has held that an arbitration clause is separable from other clauses of the contract and constitutes an agreement by itself and thus its registration or non-registration does not affect the arbitration clause to survive on its own. 59. In the matter referred to above, the conclusion drawn by the Delhi High Court was that whether the document leased out was registered or stamped or not would not affect the arbitration clause and the said arbitration clause would survive of its own. In fact, it has held that these matters would be subject matter to be decided by the Arbitrator himself on merits. 60. In reply to the contentions of the learned counsel for the respondent that agreement to sell dated 6.12.2002 is not arbitration agreement because there was no consent amongst the parties to submit to arbitration for enforcement of agreement to sell. 61. Learned counsel for the applicant submits that it is admitted to the respondent that the agreement to sell dated 6.12.2002 was made. His reply is therefore that the arbitration clause can be in any “form”, “style” or “words” and so long as the “intention” of the parties to arbitrate is clear, it is a good arbitration clause i.e. to say that the clause must clearly show the intention of the parties to arbitrate. He has argued that in the present case the ‘intent’ of the parties is clear. Therefore, they had named the arbitrator to decide the dispute in terms of the agreement. He has argued that in the present case the ‘intent’ of the parties is clear. Therefore, they had named the arbitrator to decide the dispute in terms of the agreement. He has also argued that the arbitration clause uses word “award” and also names of a particular person to be an arbitrator and therefore the intention to appoint arbitrator and to settle the dispute by way of an award, is clearly contemplated. 62. Learned counsel for the applicant has replied that it is wrongful of the respondent to say that because the named arbitrator refused to enter reference, the entire arbitration clause fails. 63. Learned counsel for the applicant submits that this argument is completely fallacious in view of the provisions of Section 11 (6) of the Act, which clearly contemplate that in the event a named arbitrator refuses to act or fails to performs his duty then a party to arbitration agreement can approach the Court to make the appointment of arbitrator under Section 11 (6) of the Act. In this case also, he has argued because Sri Hari refused to act as an arbitrator, the necessity had arisen to appoint arbitrator. 64. In reply to the contention of the respondent that no notice was given by the applicant to the respondent for referring the matter to an arbitrator is also wrong and is not a good plea because the applicant had, by the notice dated 31.3.2006, complained of the breach of the agreement to the respondent. In the said notice the applicant called upon the respondent to furnish no objection and the clearances that it had agreed to do so and also had also asked the respondent to register the sale deed in favour of the applicant and deposit of the balance sale consideration. 65. In fact the respondent had replied to the notice on 27.4.2006 and thereafter the applicant sent yet another notice dated 13.5.2006 that since the disputes have arisen between the parties with respect to the agreement to sell, the applicant was invoking the arbitration clause. When the named arbitrator was asked to enter into reference, he refused and therefore the applicant was compelled to approach firstly the Delhi High Court and thereafter the Allahabad High Court for grant of the prayer made in the present application. 66. When the named arbitrator was asked to enter into reference, he refused and therefore the applicant was compelled to approach firstly the Delhi High Court and thereafter the Allahabad High Court for grant of the prayer made in the present application. 66. So far as the plea made by the respondent under Section 53-A of the Transfer of Property Act is concerned, the applicant has answered that this would be the subject matter of the arbitration proceedings itself. 67. Learned counsel for the applicant further submits that Section 53-A of the Transfer of Property Act contemplates that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him, shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. 68. He argued that in the present matter too the agreement to sell dated 6.12.2002 did not contain any clause with respect to delivery of possession by the respondent to the applicant only inasmuch as the applicant was always in possession and continued to be in possession and it was agreed between the parties that the possession shall be in part performance of the terms of the agreement. Moreso the parties mutually decided not to transact payment of rent and only thus no rent was demanded or paid since December, 2002 till March, 2006 when the respondent made its first demand. 69. According to the applicant that the tenancy agreement dated 1.6.2000 was initially upto 31.3.2002 and was extended till 31.3.2003. Moreso the parties mutually decided not to transact payment of rent and only thus no rent was demanded or paid since December, 2002 till March, 2006 when the respondent made its first demand. 69. According to the applicant that the tenancy agreement dated 1.6.2000 was initially upto 31.3.2002 and was extended till 31.3.2003. Thereafter there was no extension of the rent deed inasmuch as in December, 2002, the parties had entered upon the agreement for sale/transfer with respect to the said property. Thus admittedly the possession of the applicant was in part performance of the agreement and as provided under Section 53A of the Transfer of Property Act. 70. Lastly in reply to the objections of the respondent that the agreement to sell cannot be enforced by an arbitrator. The applicant sought leave to refer the judgment of Hon’ble Apex Court in the case of Olympus Superstructure Pvt. Ltd. v. Meena Vijay Kheta and others, AIR 1999 SC 2102 . Para 38 of the judgment reads as under : “38. In our opinion, the view taken by the Punjab, Bombay and Calcutta High Courts is the correct one and the view taken by the Delhi High Court is not correct. We are of the view that the right to specific performance of an agreement of sale deals with contractual rights and it is certainly open to the parties to agree-with a view to shorten litigation in regular Courts-to refer the issue relating to specific performance of arbitration. There is no prohibition in the Specific Relief Act, 1963 that issues relating to specific performance of contract relating to immovable property cannot be referred to arbitration. Nor is there such a prohibition contained in the Arbitration and Conciliation Act, 1996 as contrasted with Section 15 of the English Arbitration Act, 1950 or Section 48 (5)(b) of the English Arbitrating Act, 1996 which contained a prohibition relating to specific performance of the contracts concerning immovable property.” 71. Nor is there such a prohibition contained in the Arbitration and Conciliation Act, 1996 as contrasted with Section 15 of the English Arbitration Act, 1950 or Section 48 (5)(b) of the English Arbitrating Act, 1996 which contained a prohibition relating to specific performance of the contracts concerning immovable property.” 71. In reply to the decisions as cited by the respondent, the learned counsel for the applicant has submitted that the decision of the Hon’ble Supreme Court in the case of Oil & Natural Gas Corporation Ltd. v. Saw Pipes, (2003) 5 SCC 705 (supra) has no relevance to the facts under adjudication of this Court inasmuch as the Hon’ble Supreme Court in the said matter was seized with the issue relating to setting aside of arbitral award and not with appointment of arbitral tribunal. The Hon’ble Court correctly held that there is a mandate to arbitral tribunal to decide the dispute in accordance with law for the time being in force. The said judgment never refers to Section 11 of the Act and thus has no relevance to the facts of the present matter. 72. The facts in respect of the decision as cited by the respondent in the case of Jagdish Chander v. Ramesh Chander and others, (2007) 5 SCC 719 (supra), have got no relevance to the facts of the present case inasmuch as with the clause with which the Supreme Court was concerned contemplated a further or fresh consent of the parties for reference to arbitration and thus the Hon’ble Supreme Court held that when further consent was required it could not be termed as a consent of the parties to refer to arbitration and thus it was not an arbitration clause. In the present matter, the clause does not refer to any further or fresh consent and there was consensus ed-idem to refer the dispute to a within named arbitrator. Thus the proposition laid in the said judgment has no application. 73. In the present matter, the clause does not refer to any further or fresh consent and there was consensus ed-idem to refer the dispute to a within named arbitrator. Thus the proposition laid in the said judgment has no application. 73. The decision of the Hon’ble Supreme Court in the case of TDM Infrastructure Private Limited v. UE Development India Private Ltd. JT 2008(14) SC 271 (supra) as cited by the learned counsel for the applicant has no relevance to the fact of the case in hand inasmuch as it provides that in respect to arbitration where the place of arbitration is situated in India, the arbitrator is bound to decide the dispute as per law of the land. The applicant has no issue on the said question at all and thus the said judgment is irrelevant to the facts of the present matter. 74. Learned counsel for the applicant has submitted that the issue in the present case has been rightly answered by the Hon’ble Apex Court in the case of ARC Overseas Pvt. Ltd. v. Bougainvillea Multiplex and Entertainment Centre Pvt. Ltd., 2008 (2) AWC 1212 (supra). 75. Learned counsel for the applicant has thus concluded that the objections as raised by the learned counsel for the respondent have no substance and are liable to be rejected by this Court and the prayer should be granted in favour of the applicant. 76. I have heard learned counsel for both parties at length and have also perused the pleadings before this Court. 77. It has been well-settled by the Hon’ble Apex Court that the power to appoint an arbitrator under Section 11 (6) of the Act is a judicial power. The claims of both the parties are to be examined and a reasoned order has to be passed. The requirements under Section 11 (6) are that (1) there must be an arbitration agreement; (2) there must be territorial jurisdiction; (3) there must be a live issue; and (4) the application must be within time. 78. This has been settled finally in the case of S.B.P. and Company v. Patel Engineering Ltd. and another, (2005) 8 SCC 618 and followed in Speech and Software Technologies (India) Pvt. Ltd. v. Neos Interactive Ltd., (2009)1 SCC 475 . 79. 78. This has been settled finally in the case of S.B.P. and Company v. Patel Engineering Ltd. and another, (2005) 8 SCC 618 and followed in Speech and Software Technologies (India) Pvt. Ltd. v. Neos Interactive Ltd., (2009)1 SCC 475 . 79. First of all, the facts as they spill out from the case clearly and are which admitted to both sides are that first relationship forged between the applicant and the respondent was in the year 2000 when the respondent company inducted the applicant as a tenant for Rs. 39,000/- per month in respect of industrial plot No. B 27, Block B, Sector 3, NOIDA. 80. The relationship continued and a further transaction was entered between the two on 6.12.2002 by which the agreement to sell and transfer was made for the same plot, which was earlier ruled out. The terms of the agreement were that initially the applicant would pay Rs. 10 lakhs and this sum was paid. The receipt is on record. This fact is also not denied. The balance was to be paid by by 31st December of the same year or within 15 days of the notice after the respondent had obtained the clearances from various authorities. The other thing which is also clear from the agreement is that the parties also made an arbitration clause which has already been quoted above that if any dispute arose, in respect of the terms of the agreement, it would be decided by a named arbitrator whose award would be final. 81. Thus, the arbitration agreement also reflected clearly the “intention” of the parties to refer the matter to a arbitrator if there was a dispute. From the year 2002 to 2006 the agreement to sell was not registered. Thereafter, the respondent sent a legal notice to the petitioner on 24.3.2006 demanding the rent. This was the first demand for rent after 6.12.2002. The respondent had remained silent with regard to this for all these years and has allowed the applicant to remain in possession till now. The applicant then sent notice on 31.3.2006 seeking a reference to arbitration. 82. The respondent has very strongly opposed for appointment of arbitrator by saying that the document was not registered and the document being related to immovable property was not a valid document and no arbitration can be made in respect of it. The applicant then sent notice on 31.3.2006 seeking a reference to arbitration. 82. The respondent has very strongly opposed for appointment of arbitrator by saying that the document was not registered and the document being related to immovable property was not a valid document and no arbitration can be made in respect of it. The second objection is that the arbitration clause in the agreement does not amount to arbitration agreement within the meaning of Section 7 of the Act of 1996 and other objections have already been detailed. 83. However, upon examination of the agreement to sell and upon examination of the arbitration clause, I am of the view that arbitration clause certainly reflects the “intention” on part of the both the parties that in event there is dispute, the matter shall be referred to arbitrator and the award passed by the arbitrator shall be final and binding on both the parties. 84. Upon examination of the said clause also, it is clear that the arbitration clause is a valid clause within the meaning of the arbitration clause as entailed in Section 7 of the Act of 1996. The arbitration clause satisfies all the conditions which are entailed in Section 7, because firstly it is a document signed by both the parties and since there is no stipulation in the said Section that it should be a registered document, its validity cannot be questioned. 85. For this purpose, I seek reliance on para 14 of the decision of the Division Bench of this Court in the case of A.R.C. Overseas Pvt. Ltd. (supra), which is quoted below : “14. Last but not the least, the argument that the arbitration agreement is non-est in the eye of law based on unregistered lease deed, is totally misconceived in nature. In Firm Ashok Traders and another v. Gurumukh Das Saluja and others. It has been categorically held that in the scheme of Arbitration and Conciliation Act, 1996, the arbitration clause is separable from other clauses of a deed (there it was partnership). It has further categorically held that the arbitration clause constitutes an agreement by itself. Therefore, such reference, as above, is a complete answer to the argument. Moreover, Section 7 of the Arbitration Act clearly speaks what is the requirement for holding an agreement as an arbitration agreement, as follows:” 86. It has further categorically held that the arbitration clause constitutes an agreement by itself. Therefore, such reference, as above, is a complete answer to the argument. Moreover, Section 7 of the Arbitration Act clearly speaks what is the requirement for holding an agreement as an arbitration agreement, as follows:” 86. The Hon’ble Apex Court has reiterated its dictum in the case of Nandan Biomatrix Limited v. D-1 Oils Ltd., JT 2009 (2) SC 478. 87. So far as relationship between the two parties is concerned, the very fact that it is admitted to both parties that the applicant continued to retain possession of the plot in question and in fact is in possession even today, is sufficient to establish the jural relationship between two parties and therefore in view of this aspect also, the arbitration is clearly contemplated. 88. For this purpose, the applicant has rightly relied on a decision of Delhi High Court in the case of N.I.I.T. Institute of Information Technology v. West Star Construction Pvt. Ltd. (supra) and Gaajra International versus Food Corporation of India (supra). 89. It has been held consistently by the Hon’ble Apex Court that in order to maintain an application under Section 11 (6) of the Arbitration Act, 1996, the applicant has to satisfy the test of Section 7 of the Arbitration Act. While doing so, the Hon’ble Apex Court has held that the arbitration clause is not required to be said in any particular form. If the intention of the parties to refer the dispute to arbitration can be clearly ascertained from the terms of the agreement, all other thing become immaterial, i.e. to say that it is the facts and circumstances of each case, which are to be considered and if the intention of the parties can be gathered from the communications exchanged between the parties and the surrounding circumstances then it would be sufficient to satisfy the test of Section 7 and application under Section 11 (6) would lie. 90. For this purpose, I rely on a decision of the Hon’ble Apex Court in the case of Visa International Ltd. v. Continental Resources (USA) Ltd., (2009) 2 SCC 55 . 90. For this purpose, I rely on a decision of the Hon’ble Apex Court in the case of Visa International Ltd. v. Continental Resources (USA) Ltd., (2009) 2 SCC 55 . In another decision of the Hon’ble Apex Court in the case of Great Offshore Limited v. Iranian Offshore Engineering and Construction Company, (2008) 14 SCC 240 , also, it has been held that the intention to arbitrate should be exercised between the parties and in this case where a fax message had been sent, the Hon’ble Apex Court upheld the intention of the parties to arbitrate and held that the technicalities like stamps, seals and signatures are not to be given importance, rather the intention to arbitrate should not be foiled by such formalities as it runs the counter to very idea of the arbitration wherein the tribunals all over the world generally bend over backwards to ensure that the parties’ intention to arbitrate is upheld. 91. I also rely on the decision of the Hon’ble Apex in the case of Indel Technical Services Pvt. Ltd. v. W.S. Atkins Rail Ltd., (2008) 10 SSC 308 in which it has been once again upheld that parties right to seek arbitration wherein the intention to seek arbitration was clearly indicated. 92. In the facts and circumstances of the case, notwithstanding that the words adjudication and adjudicator were not mentioned in the arbitration agreement. 93. So far as the issue of the application not being maintainable because the named arbitrator had failed is concerned, I am of the opinion that once the named arbitrator fails, the provisions of Section 11 (6) of the Act will come into play as this is provided in the section itself. 94. Learned counsel for the applicant has rightly relied on decision of Delhi High Court in the case of Smt. Satya Kailashchandra Sahu and others v. M/s. Vidarbha Distillers and others, AIR 1998 Bombay 210 wherein the Bombay High Court has relied on the decision of the Hon’ble Apex Court in the case of P.G. Agencies v. Union of India, AIR 1971 SC 2298 and Chander Bhan Harbhajan Lal v. State of Punjab, AIR 1977 SC 1210 . In the event, the named arbitrator declined to act as an arbitrator then only remedy is to approach the Court to exercise its statutory powers to appoint another arbitrator under Section 11 (6) of the Act. 95. In the event, the named arbitrator declined to act as an arbitrator then only remedy is to approach the Court to exercise its statutory powers to appoint another arbitrator under Section 11 (6) of the Act. 95. Thus in view of the above discussions, I am clearly of the opinion that in this case, there is a valid arbitration clause which clearly discloses the intent of both the parties to seek reference to an arbitrator and there a live claim, which has been made within time prescribed and therefore the matter is liable to be referred to arbitrator. 96. I am of also of the view that since the named arbitrator Sri Hari has declined to act as an arbitrator, the applicant rightly sought recourse to the remedy available to him under Section 11 (6) of the Act before this Court. As the section expressly contemplates that where a named arbitrator fails or refuses to act, it is open to a party to approach the Court to avail remedy provided under Section 11 (6) of the Act, 1996. 97. I accordingly appoint a retired Judge of this Court namely Mr. Justice M.C. Agarwal (subject to his consent) who will act as an arbitrator in the matter. I fix his remuneration of Rs. 20,000/-per sitting along with 15% clerkage to be paid to him in advance before each sitting. The remuneration of the arbitrator shall be borne ½ share by both the parties. 98. Thus the application is allowed as above. Registrar-General of this Court is directed to communicate this order to Mr. Justice M.C. Agarwal forthwith. ————