Judgment : Through this Application under Section 11 of the Arbitration and Conciliation Act, 1996 (Act 26 of 1996) (for short, 'the Act'), applicant Mohd. Imtiyaz Ahmed has sought the appointment of arbitrator for settlement of disputes between him and the respondents arising out of the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007. 2. Background facts in a nutshell leading to filing of this Arbitration Application are : Respondents Mohd. Hussain Khan and Noor Ahmed Khan are owners of the houses bearing Municipal No.12-1-566 to 574, totally admeasuring 630 sq. yards. The applicant and the respondents entered into a registered Agreement of Development-cum-General Power of Attorney on 19.09.2007. The applicant had applied to the Greater Hyderabad Municipal Corporation for going ahead with the construction project and obtained sanction on 21.02.2008. A Supplementary Agreement of Development came to be executed between the parties on 18.10.2008 with regard to change in sharing of the constructed areas among them. The respondents got issued a notice dated 12.03.2009 terminating the contract. They also filed a suit O.S.No.408 of 2009 on the file of VII Senior Civil Judge, City Civil Courts, Hyderabad, against the applicant seeking cancellation of the Supplementary Agreement of Development. Whileso, the applicant issued a notice dated 13.08.2009 invoking the arbitration clause in the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007 and nominating Hon’ble Justice Vaman Rao, a retired Judge of this Court, as an arbitrator for resolution of disputes. The respondents issued a reply stating that once the Agreement of Development-cum-General Power of Attorney is cancelled, the clauses therein cannot be treated as part and parcel of the Supplementary Agreement of Development, dated 18.10.2008 and as the Supplementary Agreement of Development, dated 18.10.2008, does not contain the arbitration clause, appointment of arbitrator does not arise. Hence, this application by the applicant under Section 11 of the Act, seeking the appointment of an arbitrator for settlement of disputes arising out of the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007. 3. Notice before admission came to be ordered on 18.11.2009. The respondents entered appearance through a counsel and filed counter-affidavit. 4. Hence, this application by the applicant under Section 11 of the Act, seeking the appointment of an arbitrator for settlement of disputes arising out of the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007. 3. Notice before admission came to be ordered on 18.11.2009. The respondents entered appearance through a counsel and filed counter-affidavit. 4. The sum and substance of the counter-affidavit filed by the respondents is that once the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007, is cancelled, the clauses therein cannot be treated as part and parcel of the Supplementary Agreement of Development, dated 18.10.2008 and as the Supplementary Agreement of Development, dated 18.10.2008 does not contain the clause with regard to the appointment of arbitrator, the application filed under Section 11 of the Act is liable to be dismissed. Para.2 of the counter- affidavit needs to be noted and it is thus: "2. In reply to para. No.2. It is true that myself and R2 are owners of property bearing 12-1-566 to 574. It is false to say that Applicant is distantly related to our family. That the contract was signed between myself and my brother as Applicant is friend of my son. Applicant got any how executed a Registered Development Agreement-cum-GPA on 19.09.2007, bearing Doc.No.4321 of 2007 in his favour. I, truly states that the terms as agreed between us in the Doc.No.4321 of 2007, were altered and altogether a new agreement was executed i.e., "Supplementary Agreement of Development", Dt.18.10.2008, bearing Doc.No.4333 of 2008, wherein true and correct statement of Applicant and Respondents were recorded, canceling the original agreement Doc.No.4321 of 2007 which contains the Arbitration clause. Therefore, the Arbitration clause is no more in existence, after execution of Doc.No.4333 of 2008. That the execution of Development Agreement-cum-GPA has been carried out by both the parties voluntarily and the cancellation of terms of said agreement was also arrived between the parties voluntarily as per their own wish. That the cancelled terms of original agreement of development i.e., Doc.No.4321/07 are no more in existence. That Applicant and Respondents terminated previous contract i.e, Doc.No.4321 of 2007, in such a way that it cannot subsists, and it has been put to an end, therefore, the previous contract is not in existence. The alleged terms agreement in previous contract Doc.No.4321 of 2007, are not relevant as the same is cancelled by its both parties." 5. That Applicant and Respondents terminated previous contract i.e, Doc.No.4321 of 2007, in such a way that it cannot subsists, and it has been put to an end, therefore, the previous contract is not in existence. The alleged terms agreement in previous contract Doc.No.4321 of 2007, are not relevant as the same is cancelled by its both parties." 5. Heard Manjiri S. Ganu, learned counsel appearing for the applicant and Sri Vedula Venkata Ramana, learned senior counsel representing M/s.Khaja Manzoor Ali, learned counsel appearing for the respondents 1 and 2. 6. Learned counsel appearing for the applicant submits that the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007, contains a clause with regard to settlement of disputes between the parties by an arbitrator and the Supplementary Agreement of Development, dated 18.10.2008, is not in substitution of the principal agreement and it is only a modification in respect of certain terms in the principal agreement of development and therefore, the clause in respect of arbitration in the principal agreement of development remains intact and in which case, the disputes between the parties are required to be referred to the arbitrator of common choice. Learned counsel laid much emphasis on Clause 21 of the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007, which reads as hereunder: "21. In case of any dispute arising between the parties hereto at a later date, the same shall be referred to Arbitrator of common choice and the decision shall be final. In any event, the construction work shall not be stopped by either parties." In support of her contentions, reliance has been placed on the decision of the Orissa High Court in K.R.Rao v. State (AIR 1989 Orissa 97) and the decision of Delhi High Court in Stracon India Ltd. v. UTV Software Communication Ltd (AIR 2002 Delhi 209). 7. In K.R.Rao's case (1 supra), it has been observed that the very fact that the agreement in respect of which the dispute arises is supplementary to the original agreement and since the original agreement contains a provision for arbitration, and the same would govern the supplementary agreement, which is part of the original and the trial court was not justified in holding that there was no jurisdiction to make appointment merely because such a clause was absent in the supplementary agreement. 8. 8. In Stracon India Ltd.'s case (2 supra), it has been held that where the original agreement between parties contained arbitration clause, application for appointment of arbitrator made on basis of such arbitration clause, was entitled to be allowed though some subsequent agreement between parties modifying terms of Payment Schedule and not terms and conditions of original agreement, did not contain arbitration clause: It was more so when the subsequent agreement specifically provided that relationship would be governed as per terms of the original agreement. Further, fact that the settlement was subject to the fulfillment of the conditions contained in the parent agreement, manifestly would demonstrate that by way of implication, the arbitration clause formed part of the terms and conditions of the original agreement. 9. Sri Vedula Venkata Ramana, learned senior counsel, contends that the supplementary agreement of development dated 18.10.2008 does not contain any clause with regard to settlement of disputes between the parties by way of arbitration. In the absence of such clause in the supplementary agreement of development, dated 18.10.2008, the application filed by the applicant under Section 11 of the Act is liable to be dismissed. A further submission has been made that a mere reference of the principal agreement of development in a subsequent agreement of development would not have the effect of making the arbitration clause from the principal agreement of development as part of the supplementary agreement of development. The supplementary agreement of development should contain a clear reference to the principal agreement of development containing an arbitration clause and there being no such reference in the supplementary agreement of development, the arbitration clause in the principal agreement of development has no relevance. Learned senior counsel laid much emphasis on the preamble as well as Clauses 3, 7 and 10 of the supplementary agreement of development, dated 18.10.2008. In a way, learned senior counsel contends that the terms of the contract between the parties stand modified by a supplementary agreement of development and the parties are governed by the terms of the supplementary agreement of development and there being no clause with regard to dispute being settled through an arbitrator in the supplementary agreement of development, the applicant cannot invoke clause 21 of the principal agreement of development. In support of his submissions, reliance has been placed on the decision of the Supreme Court in M.R. Engineers & Contractors (P) Ltd. v. Som Datta Builders Ltd. (2009) 7 SCC 696 ), wherein the Supreme Court held that there is a difference between reference to another document in a contract and incorporation of another document in a contract, by reference. In the first case, the parties intend to adopt only specific portions or part of the referred document for the purposes of the contract. In the second case, the parties intend to incorporate the referred document in entirety, into the contract. 10. The Supreme Court in the cited case supra summed up the scope and intent of Section 7(5) of the Act, which is thus: " (i) An arbitration clause in another document, would get incorporated into a contract by reference, if the following conditions are fulfilled: 1) the contract should contain a clear reference to the documents containing arbitration clause. 2) The reference to the other document should clearly indicate an intention to incorporate the arbitration clause into the contract. 3) The arbitration clause should be appropriate that is capable of application in respect of disputes under the contract and should not be repugnant to any term of the contract. (ii) When the parties enter into a contract, making a general reference to another contract, such general reference would not have the effect of incorporating the arbitration clause from the referred document into the contract between the parties. The arbitration clause from another contract can be incorporated into the contract (where such reference is made), only by a specific reference to arbitration clause. (iii) Where a contract between the parties provides that the execution or performance of that contract shall be in terms of another contract (which contains the terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then, the terms of the referred contract in regard to execution/performance alone will apply, and not the arbitration agreement in the referred contract, unless there is special reference to the arbitration clause also. (iv) Where the contract provides that the standard form of terms and conditions of an independent trade or professional institution (as for example the standard terms and conditions of a trade association or architects association) will bind them or apply to the contract, such standard form of terms and conditions including any provision for arbitration in such standard terms and conditions, shall be deemed to be incorporated by reference. (v) Where the contract between the parties stipulates that the conditions of contract of one of the parties to the contract shall form a part of their contract (as for example the general conditions of contract of the Government where the Government is a party), the arbitration clause forming part of such general conditions of contract will apply to the contract between the parties." 11. In response, learned counsel appearing for the applicant submits that facts in M.R. Engineers & Contractors (P) Ltd.'s case (3 supra) and the facts of the case on hand are distinctive and therefore, the cited case has no application to the present case. 12. The only issue that calls for adjudication is whether the supplementary agreement of development supercedes the terms of the principal agreement of development in-toto or is it in modification of some of the terms? 13. The principal Agreement of Development-cum-General Power of Attorney came to be executed between the parties on 19.09.2007. Under Clause 21 of the said agreement, in case of any dispute arising between the parties hereto at a later date, the same shall be referred to Arbitrator of common choice and the decision shall be final. The supplementary agreement of development, dated 18.10.2008, came to be executed between the parties. The supplementary agreement of development deals with the modification of certain clauses. The supplementary agreement of development came to be executed between the parties pursuant to the Clause 18 of the principal Agreement of Development-cum-General Power of Attorney, dated 19.09.2007. This is evident from the preamble of the supplementary agreement of development, which reads as hereunder: "WHEREAS as per the Clause No.18 of the said Development Agreement, both the parties are entitled to modify the said principle development agreement with their mutual consent by way of Supplementary Agreement, as such this Supplementary Agreement." By way of supplementary agreement of development, only certain clauses in the principal Agreement of Development-cum-General Power of Attorney, dated 19.09.2007, came to be modified. Those clauses relate to the power of sale to the respondents-owners in respect of flats allotted to them. The respondents-owners also undertook to join and execute the sale deeds or deeds and get the same registered in favour of the applicant/developer, his nominee or any other intending purchaser in respect of the flats and undivided shares and land allotted to him. The supplementary agreement of development is not in supercession of the principal Agreement of Development-cum-General Power of Attorney, dated 19.09.2007, and it is only modification of certain clauses in the principal Agreement of Development-cum-General Power of Attorney, dated 19.09.2007. A close reading of the supplementary agreement of development, dated 18.10.2008, indicates that the parties never intend to give a goby to all the clauses in the principal agreement of development. Therefore, I am of the view that Clause 21 of the Agreement of Development-cum-General Power of Attorney, dated 19.09.2007, remain as part and parcel of the contract between the parties. In which case, the disputes between the parties are required to be resolved by way of arbitration. 14. Accordingly, the Arbitration Application is allowed. Sri Justice Vaman Rao (Retd.) is appointed as an Arbitrator. He shall fix his own fee. No costs