ORDER : This arbitration application is filed under Section 11 (4) and (6) of the Arbitration and Conciliation Act, 1996, (in short, “the Act”) for appointment of an arbitrator. 2. The petitioner developer of the property approached respondents 1 to 4 who are the owners of the property bearing premises No.3-144, admeasuring 1800 sq. yards in Sy.No.22 situated at Balanagar, Hyderabad, (for short “the property”) expressing his willing to develop the property into commercial complex in the year 2004. After mutual discussions, it was agreed that petitioner will deposit an amount of Rs.50 lacs refundable security deposit, which was given effect to by the parties, by way of memorandum of understanding executed on 08-07-2004, followed by execution of further agreements on 24-01-2006 and 03-02-2006. That the petitioner has deposited Rs.50 lacs with the respondents on different dates. 3. Thereafter, the respondents have executed registered development agreement in favour of the petitioner vide document No.973/2006, dated 03-02-2006. As per the terms of the said development agreement, among other things, the land owners and the developer i.e. the respondents and the petitioner, are entitled to 50% share each in the constructed area and undivided share of land and parking space in the building complex. The respondents also executed another registered development agreement vide document No. 858/2008, dated. 22-04-2008 for the development of the adjacent property bearing No.3-144/1, admeasuring 198 Sq. yards which is the exclusive property of Smt.Tasneem Rahman-3rd respondent, sister of the other respondents, and the petitioner has further paid a sum of Rs.3 lacs to her towards refundable security deposit. The petitioner and the 3rd respondent are also entitled to 50% share each in the said property as in the terms of the case of earlier development agreement dated 03-02-2006 executed by the brothers of the 3rd respondent. That the respondents have not executed the registered GPA in favour of the petitioner as per the terms of the registered development agreements. However, the respondents have executed a supplementary agreement dated 26-11-2012 wherein the shares of respondents and the petitioner are to be shared in the ratio of 50 : 50 are specifically mentioned. That the respondents have not executed the registered GPA in favour of the petitioner as per the terms of the registered development agreements. However, the respondents have executed a supplementary agreement dated 26-11-2012 wherein the shares of respondents and the petitioner are to be shared in the ratio of 50 : 50 are specifically mentioned. On the same day i.e. 26-11-2012, the respondents have executed unregistered GPA in favour of the petitioner with respect to 50% built up area in respect of ground and first floors only under which the petitioner was only entitled to enter into agreement of sales with prospective purchasers in respect of 50% share in the property. That the respondents thereafter executed a registered GPA vide document No. 7612 of 2013, dated 18-11-2013, with specific power of attorney to execute sale deeds in respect of 50% share in the ground, first floor and cellar parking space, though the petitioner is entitled for 50% share in the remaining floors in the building complex as per the registered development agreements. That the petitioner has completed the construction work as per the terms of the registered development agreements and obtained occupancy certificate from GHMC in October 2014 itself though the respondents have not executed the GPA for the share of the petitioner in respect of rest of the floors in the building complex. The petitioner had completed the entire work in compliance of the conditions of the registered development agreements, the respondents have not returned security deposit amount of Rs.53 lacs and they have also not executed the registered GPA in respect of its share for the rest of the floors. That the respondents are bound to refund the security deposit and to execute registered GPA in respect of the petitioner’s share in the entire property in terms of registered development agreements. That the petitioner demanded for the refund of security deposit amount and for execution of GPA, the respondents instead of refunding the security deposit and executing GPA, got issued notice dated 24-10-2016 which was replied by the petitioner by mentioning true facts. That the petitioner demanded for the refund of security deposit amount and for execution of GPA, the respondents instead of refunding the security deposit and executing GPA, got issued notice dated 24-10-2016 which was replied by the petitioner by mentioning true facts. Since the respondents failed to comply the terms and conditions of the development agreements and other agreements supra, the petitioner issued notice invoking the arbitration clause no.17 in the registered development agreement dated 03-02-2006 proposing the name of a former High Court Judge of the combined State of Andhra Pradesh as arbitrator, which was not acceded to by the respondents. Hence this arbitration application. 4. Counter affidavit is filed by the 1st respondent inter alia stating that arbitrator cannot be appointed as no cause of action has arisen and, therefore, the petitioner cannot seek for appointment of an arbitrator. That the respondents are not liable to pay/refund the security deposit amount of Rs.53 lacs to the petitioner. That the memorandum of understanding dated 08-07-2004 is false and invalid as there is no legal validity to it. That the development agreements dated 03-02- 2006 and 22-04-2008 supersede the memorandum of understanding dated 08-07-2004. That the alleged development agreements 03-02-2006 and 22-04-2008 were got prepared by the petitioner and obtained the signatures of respondents by misrepresentation and by playing fraud on them. That the development work of the building complex was not carried out according to the terms of the development agreements. That there is delay in completing the construction and the petitioner failed to provide the fittings and fixtures conforming to the fire safety norms and the national code of practice. That payment towards rent for the delay in completion of work is not paid by the petitioner, due to which the respondents are subjected to loss of more than Rs.2.2 crore and the same is recoverable from him. The agreement dated 24-01-2006 is null and void and unenforceable under Section 23 of the Contract Act, 1872 as no stamp duty is paid. That there is no arbitration clause in the alleged agreement dated 24-01-2006 and it speaks about the payment and repayment of the alleged deposit amount. That he had filed suit against the petitioner in suit OS No.173/2017 on the file of Court of the VII Addl. That there is no arbitration clause in the alleged agreement dated 24-01-2006 and it speaks about the payment and repayment of the alleged deposit amount. That he had filed suit against the petitioner in suit OS No.173/2017 on the file of Court of the VII Addl. Senior Civil Judge, Ranga Reddy District, for perpetual injunction to restrain him from alienating or otherwise encumbering the suit property bearing No.6-3-144 (old No.3-144) and 6-3-144/1 (old No.3-144/1) totally admeasuring 1998 sq. yards in Sy.No.22 (old Sy.No.115) situated at Balanagar village and mandal, Ranga Reddy District. He also filed IA No.108 of 2017 for interim injunction under Order 39, Rules 1 and 2 CPC, not to alienate the suit property and IA No.109 of 2017 to appoint Advocate Commissioner under Order 26, Rule 9 CPC. That in the said suit he sought interim relief since the petitioner tried to negotiate sale transactions with the prospective purchasers. The suit was filed on 30-01-2017 and the petitioner entered appearance in the suit on 21-03-2017 through his counsel and filed interlocutory application being IA No. 710 of 2017 under Section 8 of the Act and the same is pending enquiry, (now concluded and allowed by the trial Court). That in the circumstances, the application is liable to be dismissed. 5. Counter affidavit is filed by the 4th respondent wherein inter-alia it is stated that by way of this arbitration application the petitioner is seeking recovery of the alleged deposit amount though there is no mention about the deposit amount in the registered development agreements and there is no dispute arising. That the petitioner suppressed the fact of the alleged security deposit in registered development agreements in order to avoid stamp duty. That there are no bona-fides in the application and is liable to be dismissed. 6. Heard the learned counsel for the petitioner, the learned counsel for the 1st respondent and the learned counsel for the 4th respondent. None appeared for respondents 2 and 3 though notice is served. 7. That there are no bona-fides in the application and is liable to be dismissed. 6. Heard the learned counsel for the petitioner, the learned counsel for the 1st respondent and the learned counsel for the 4th respondent. None appeared for respondents 2 and 3 though notice is served. 7. In the recent ruling of the Hon’ble Supreme Court in MAYAVATI TRADING PRIVATE LIMITED vs. PRADYUAT DEB BURMAN, (2019) 8 SCC 714 it was held that adjudication of an arbitration application filed under Section 11 (4) to 11 (6), the Court is to confine itself to examination of existence of arbitration agreement, nothing more, nothing less, and leave all the preliminary issues to be decided by the arbitrator. 8. In this background, it is to be seen whether there exists an arbitration clause in the agreement, the dispute is alive between the parties and such a dispute is in relation to the subject matter of the agreement. The issue in this case rests on a narrow compass. It is understood from the pleadings of the parties that admittedly, the parties on mutual discussions, have entered into the registered development agreements on 03-02-2006 and 22-04-2008. The former one is executed by respondents 1, 2 and 3, who are brothers and the later one is executed by the 3rd respondent, who is the sister of the other respondents in respect of the property. The respondents have also executed certain other documents prior and subsequent to the execution of the registered development agreements, which I will discuss a little later. 9. The development agreements dated 03-02-2006 and 22-04-2008 though executed by all the respondents, the development agreement dated 22-04-2008 is also executed by all the respondents, but through which the property exclusively owned by the 3rd respondent, the sister of the other respondents, was given for development along with the property which is subject matter of development agreement dated 03-02-2006. 9. The development agreements dated 03-02-2006 and 22-04-2008 though executed by all the respondents, the development agreement dated 22-04-2008 is also executed by all the respondents, but through which the property exclusively owned by the 3rd respondent, the sister of the other respondents, was given for development along with the property which is subject matter of development agreement dated 03-02-2006. A perusal of the development agreement dated 03-02-2006, which is a fountain of terms and conditions, provides for arbitration clause in the event of any dispute between them, under clause 17 thereof, which reads as under:- "Clause No.17: ‘In case of any dispute between the parties hereto touching these present, the matter shall be referred to Arbitration one shall be chosen by each of the owners and the developer and in the case of any difference of opinion between such arbitrators they shall nominate a common umpire and an award of such an umpire so appointed shall be final and binding on both the parties and the relevant provisions of the Arbitration and Conciliation Act shall apply to such Arbitration." Similar arbitration clause is also contained in the development agreement dated 22–04–2008 under clause 13 thereof. 10. It is also to be noted for reference purpose that on a presumable apprehension that the petitioner would likely to alienate the property to the prospective buyers without completion and handing over their share of 50% constructed area in all floors including parking areas, the respondents filed suit OS No.173 of 2017 seeking perpetual injunction to restrain the petitioner from alienating or otherwise creating any encumbrance on the property in question. In the said suit, the petitioner had filed an application under Section 8 of the Act being IA No.710 of 2017, on the ground that the suit claim is to be referred to an arbitrator as both the registered development agreements contain arbitration clauses and the suit was not maintainable. The said application filed by the petitioner was allowed by the trial Court by order dated 28–11–2018 and the suit claim is referred for arbitration, against the said order, the respondents seems to have carried the matter in a civil revision petition before this Court and the same pending. 11. According to the petitioner’s counsel the registered development agreement dated 03-02-2006 contained an arbitration clause, there exists a dispute between the parties and the matter is to be referred to arbitration. 11. According to the petitioner’s counsel the registered development agreement dated 03-02-2006 contained an arbitration clause, there exists a dispute between the parties and the matter is to be referred to arbitration. Various other contentious issues are also canvassed by the learned counsel which involved mixed questions of fact and law, needs no consideration for the purpose of this application. 12. To see whether there exists a dispute, the petitioner alleges that the respondents have not executed registered GPA in respect of all the floors as agreed in the development agreements, whereas the respondents state that the work has not been carried on in terms of the development agreement and amenities not provided therein. Allegations and counter allegations are made by each of the parties and there exist a dispute between the parties. 13. If we look at the other agreements entered into by the parties prior to the two registered development agreements, the first of its kind is an agreement nomenclatured as “memorandum of understanding” dated 08-07-2004 purportedly executed by the petitioner and the respondents indicates the intention of the parties for development of the property into a commercial complex and constructed area is to be shared the ratio of 50 : 50 and the schedule of deposit amount of Rs.50 lacs and the details of Rs.10 lacs paid to the respondents are mentioned. But, curiously this document is not signed by the petitioner. Then comes the agreement dated 24–01–2006 wherein the petitioner has paid Rs.50 lacs to the respondents the details thereof are lucidly mentioned in the agreement which is signed by both the parties. Thereafter the registered development agreements were executed by the parties and supplementary agreement dated 26-11-2012 and registered GPA dated 18-11-2013 executed to give effect to the terms of the registered development agreement. Learned counsel for the 1st respondent strenuously contended that the memorandum of understanding dated 08-07-2004 and agreement dated 24–01–2006 wherein the petitioner has paid Rs.50 lacs have to be construed as ‘bond’ and stamp duty is payable thereon. It is to be seen that the petitioner has filed this arbitration application by invoking the registered development agreement dated 03-02-2006 and this Court is satisfied that there exits an arbitration clause under clause 17 thereof. It is to be seen that the petitioner has filed this arbitration application by invoking the registered development agreement dated 03-02-2006 and this Court is satisfied that there exits an arbitration clause under clause 17 thereof. The memorandum of understanding dated 08-07-2004 also contains an arbitration clause, but admittedly it is not signed by the petitioner and the petitioner is not relying on the arbitration clause contained therein for the purpose of this application. However, whether it is a bond or not is a question of fact and law, which the Arbitrator could consider and this Court is not inclined to express any opinion thereon on merits. The decisions cited by the learned counsel for the respondents in BOOZ ALLEN AND HAMILTON INC. vs. SBI HOME FINANCE LIMITED, (2011) 5 SCC 532 is a case where the disputes related to rights in rem and under those circumstances it was held by the Supreme Court that though disputes in question were covered by arbitration clause, they not being arbitral as they related to rights in rem and are required to be adjudicated by Courts and public tribunals. The decision of this Court in PENUMALLI SULOCHANA vs. HARISH RAWTANI, (2013) 5 ALD 573 (DB) is a case where the validity of the lease deed between the parties therein expired by efflux of time and the lease does not spillover beyond a date mentioned therein, and under those circumstances, it was held that the relationship between the parties ceases to be governed by the lease deed and when once the lease deed became redundant, any clause contained in it also ceases to be of any relevance to the parties and the expression "after its expiry or early determination thereof" employed in clause-32 thereof has a clear and definite purpose to serve and has to be understood in the context of the circumstances mentioned in the same clause. It was further observed that an early determination of the lease can certainly become the subject matter of arbitration since the document remains in force, the words "after expiry" have to be understood as covering the disputes that arise during the subsistence of the lease, under the document. But, such a contingency is not prevailing in the facts of the case on hand and the facts are clearly distinguishable. 14. But, such a contingency is not prevailing in the facts of the case on hand and the facts are clearly distinguishable. 14. The law relating to appointment of arbitrator and referring the matters for arbitration, in respect of disputes where such disputes are to be agreed to be resolved by arbitration in the light of such a clause contained therein has been crystallised by the Hon’ble Supreme Court in MAYAVATI TRADING PRIVATE LIMITED’s case (supra). Paras 13 to 16 of the said decision is as follows:- “13. Pursuant to the Law Commission recommendations, Section 11(6-A) was introduced first by Ordinance and then by the Amendment Act, 2015. The Statement of Objects and Reasons which were appended to the Arbitration and Conciliation (Amendment) Bill, 2015 which introduced the Amendment Act, 2015 read as follows: “Statement of Objects and Reasons **** 6. Pursuant to the Law Commission recommendations, Section 11(6-A) was introduced first by Ordinance and then by the Amendment Act, 2015. The Statement of Objects and Reasons which were appended to the Arbitration and Conciliation (Amendment) Bill, 2015 which introduced the Amendment Act, 2015 read as follows: “Statement of Objects and Reasons **** 6. It is proposed to introduce the Arbitration and Conciliation (Amendment) Bill, 2015, to replace the Arbitration and Conciliation (Amendment) Ordinance, 2015, which inter alia, provides for the following, namely— (i) to amend the definition of “Court” to provide that in the case of international commercial arbitrations, the Court should be the High Court; (ii) to ensure that an Indian Court can exercise jurisdiction to grant interim measures, etc., even where the seat of the arbitration is outside India; (iii) an application for appointment of an arbitrator shall be disposed of by the High Court or Supreme Court, as the case may be, as expeditiously as possible and an endeavour should be made to dispose of the matter within a period of sixty days; (iv) to provide that while considering any application for appointment of arbitrator, the High Court or the Supreme Court shall examine the existence of a prima facie arbitration agreement and not other issues; (v) to provide that the Arbitral Tribunal shall make its award within a period of twelve months from the date it enters upon the reference and that the parties may, however, extend such period up to six months, beyond which period any extension can only be granted by the Court, on sufficient cause; (vi) to provide that a model fee schedule on the basis of which High Courts may frame rules for the purpose of determination of fees of Arbitral Tribunal, where a High Court appoints arbitrator in terms of Section 11 of the Act; (vii) to provide that the parties to dispute may at any stage agree in writing that their dispute be resolved through fast-track procedure and the award in such cases shall be made within a period of six months; (viii) to provide for neutrality of arbitrators, when a person is approached in connection with possible appointment as an arbitrator; (ix) to provide that application to challenge the award is to be disposed of by the Court within one year. 7. 7. The amendments proposed in the Bill will ensure that arbitration process becomes more user-friendly, cost effective and leads to expeditious disposal of cases.” 14. A reading of the Law Commission Report, together with the Statement of Objects and Reasons, shows that the Law Commission felt that the judgments in SBP & Co. and Boghara Polyfab required a re-look, as a result of which, so far as Section 11 is concerned, the Supreme Court or, as the case may be, the High Court, while considering any application under Sections 11(4) to 11(6) is to confine itself to the examination of the existence of an arbitration agreement and leave all other preliminary issues to be decided by the arbitrator. 15. This being the position, it is clear that the law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the judgment in United India Insurance Co. Ltd. v. Antique Art Exports (P) Ltd., (2019) 5 SCC 362 , as Section 11(6-A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment in Duro Felguera, SA v. Gangavaram Port Ltd., (2017) 9 SCC 729 16. We, therefore, overrule the judgment in Antique Art Exports (P) Ltd.’s case as not having laid down the correct law”. 15. It is deduced from the above case law (1 supra) as the law as it stands today, what all is required to be looked into in an application filed under Section 11(6) of the Act is whether there is an arbitration clause, there exists a dispute between the parties and it is subsisting and if any preliminary issues are raised leave them even to be adjudicated by the arbitrator. The requirements as set out in the decision (1 supra) are made out in this case and for the reasons stated above, the arbitration application is allowed. Sri P. Thirupathi Reddy, former District Judge, is nominated as sole Arbitrator to decide the dispute between the parties in relation to and connected with the development agreements dated 03-02-2006 and 22-04-2008. The requirements as set out in the decision (1 supra) are made out in this case and for the reasons stated above, the arbitration application is allowed. Sri P. Thirupathi Reddy, former District Judge, is nominated as sole Arbitrator to decide the dispute between the parties in relation to and connected with the development agreements dated 03-02-2006 and 22-04-2008. The learned Arbitrator shall be entitled to fees as per the rates specified in the Fourth Schedule of the Act, brought in by Act 3 of 2016 with effect from 23-10-2015, which shall be borne by both the parties in equal proportion. No order as to costs.