JUDGMENT : M/s Reach Global has approached this Court through its partner Lalit Prakash for appointment of an Arbitrator under section 11(6) of the Arbitration and Conciliation Act, 1996 (in short, AC Act). 2. Briefly stated, the applicant entered into Development Agreement dated 28th July 2020 for developing a piece of land admeasuring about 17 Kathas comprised under Mauza-Kokar within Thana Sadar (Thana No. 197), corresponding to Holding No. 874/A within Ward No. 8 of the district-Ranchi. The aforesaid Development Agreement contains a clause for arbitration under Article IX which deals with legal procedures. Sub-clause 4 to Article IX provided that the parties had agreed that all dispute between the land owner and the developer shall be referred to sole arbitrator in accordance with the provisions of the AC Act. According to the applicant, some dispute arose with the land owners on account of which it became necessary for it to invoke the aforesaid arbitration clause for resolution of the dispute through arbitration. The applicant has therefore issued letter dated 18th January 2022 to each of the respondents separately putting them on notice that on account of their failure to adhere to the terms of the Development Agreement it has suffered the anticipated loss which has been assessed at Rs.4,10,98,860/-. 3. The scheme of the AC Act indicates that existence of a dispute between the parties is the jurisdictional fact only upon pleading of which the provisions under the AC Act can be resorted to. A dispute shall arise only when there is a claim made by one party which has been denied or repudiated by the other. Therefore, merely raising a claim is not sufficient for invoking the provisions under section 11(6) of the AC Act unless it is demonstrated before the Court that by not responding to the written notice by the aggrieved party the other party has shown his denial. In “Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority” (1988) 2 SCC 338 the Honb'le Supreme Court has held that in the matters of commercial transaction it is necessary that there should be a claim raised by one party and a specific denial made by the other. In “Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority” (1988) 2 SCC 338 the Honb'le Supreme Court has held that in the matters of commercial transaction it is necessary that there should be a claim raised by one party and a specific denial made by the other. Other important issues which need to be considered by the Court before the powers under section 11(6) of the AC Act are exercised are: (i) whether there is a valid arbitration clause, (ii) whether the dispute falls within the scope of the arbitration clause and (iii) whether the dispute is arbitrable. 4. Notice by the applicant to the respondents is extracted hereinbelow : From, M/s. Reach Gobal, a partnership firm working in the name and style of “Ayushman Construction” through its partner Lalit Prakash R/o Flat No. 202, Aparna Apartment, P.S. Sadar, P.O. Bariyatu, Cheshire Home Road, Bandhgari, Ranchi, having its office at C/o Ayushman Construciton, Neel Ratan Street, Upper Bazar, Ranchi. To, (1) Rajeev Ranjan, Resident of Lohia Park, Kokar, Police Station Sadar, District, Ranchi. (2) Sanjeev Suman Resident of Lohia Park, Kokar, Police Station Sadar, District, Ranchi. (3) Sanjay Sundaram” Resident of Lohia Park, Kokar, Police Station Sadar, District, Ranchi. Subject:-Invocation of Arbitration Clause in terms of Article IX-Legal Procedure, clause (4) of the development agreement dated 28th July, 2020 Dear Sir, You all are aware that development agreement dated 28th July, 2020 was entered between us for development of land measuring 17 Katha, Mouza Kokar, Thana Sadar, Thana no. 197, Holding no. 874/A, ward no. 8. District, Ranchi. Rajeev Ranjan by virtue of family arrangement being seized, possessed and the absolute owner of 5 Katha of Land in Khata No. 95 & 188, Plot No. 718-H in Mouza Kokar purchased by her mother Late Krishna Yadav vide Deed No. 5950 dated 11.06.1989 from one Veena Devi Lohiya through her Power of Attorney Holder Vijay Kumar Lohia, registered before the office of the sub registrar Ranchi and duly mutated in favour of her mother vide mutation case No. 559R27/1995-1996 registered in Register 2 vide Volume-5, Page 393. Sanjeev Suman purchased 6 Katha Land in Khata No.95 & 188, Plot No.718/719 in Mouza Kokar vide Deed No. 1603 dated 01.06.1989 from one Veena Devi Lohiya through her Power of Attorney Holder Vijay Kumar Lohia registered before the office of the sub registrar Ranchi duly mutated in his favour vide mutation case No. 561R27/1995-1996 registered in Register 2 vide Volume-7, Page 19. Sanjay Sundaram purchased 6 Katha Land in Khata No. 95 & 188, Plot No. 719-H-3 in Mouza Kokar vide Deed No.34172 dated 24.12.1986 from one Veena Devi Lohiya through her Power of Attorney Holder Vijay Kumar Lohia registered before the office of the sub registrar Ranchi duly mutated in his favour vide mutation case No. 2015R27/1995-1996 registered in Register 2 vide Volume-5 Page No. 474. Total Land being 17 Katha. As per the scheme of the said development agreement, you all (landowners) were entitled to 46% area in form of completed flat out of total FAR (Floor Area Ratio) achieved against the aforesaid land and proportionate car parking space for each completed flat along with all modern facilities and amenities. Developer was entitled to 54% area in form of completed flat out of total FAR (Floor Area Ratio) achieved against the aforesaid land and proportionate car parking space for each completed flat along with all modern facilities and amenities. At the time of execution of the aforesaid Development Agreement it was also agreed between us that you all will take NOC from erstwhile Promoter/Developer namely D.R. Construction a Partnership Firm with whom you all entered into a registered development agreement dated 31.10.2016 as project could not be developed by the said Developer. Therefore Agreement dated 28.07.2020 was entered by and between you all and M/s D.R. Construction wherein it was agreed to annul the said agreement on receipt of Rs.15,00,000/- from the land owners and balance amount of Rs.24,25,000/- was to be paid by you all in the course of one year against which by way of security five cheques were given by you all to the said D.R. Construction. On such agreement D.R. construction had agreed to give no objection to you all to make agreement with any other Developer and Promoter for development of said land. On such agreement D.R. construction had agreed to give no objection to you all to make agreement with any other Developer and Promoter for development of said land. Therefore, at the time of execution of the aforesaid agreement dated 28.07.2020 an amount of Rs.15,00,000 was paid by M/s Reach Global through its Partner to make onward payment of Rs.15,00,000/- to said D.R. Construction and on receipt of said payment you all made payment of Rs.15,00,000/- to M/s D.R Construction on the date of execution of the said development agreement. Apart from the aforesaid amount certain other payment has been made which is attached as (Annexure 1) to this invocation of Arbitration Clause letter. However, after said development agreement dated 28.07.2020 you all started disrupting the execution of the said development agreement from very inception by stating that entire land cannot be developed by aforesaid development agreement dated 28.07.2021. Instead of acting as per the scheme of the said agreement, you all for the reasons best known to you all started creating pressure to enter fresh individual development agreement with each of you for development of their respective shares of land by three Development Agreement. However you all projected that proposal of separate development agreements for each plot is being proposed by way of abundant precaution and safety measure in case Development Agreement is not workable. You all also represented that if required all the three projects could be merged in one to make the project viable for us in future. However only two of you namely Rajeev Ranjan and Sanjeev Suman entered into separate development agreement both dated 28.07.2020 with Ayushman Construction but Sanjay Sundaram failed to enter into separate agreement for development of his respective share of land. In gross violation of terms of aforesaid agreement dated 28.07.2021 Rajeev Ranjan has returned his share by two separate RTGS transaction dated 15.11.2021 amounting to Rs.6,75,000/- and Rs.1,85,000/-. It is crystal clear that you all in collusion with each other with malafide intention from very inception retuned the aforesaid amount to frustrate the execution of aforesaid Development Agreement. In gross violation of terms of aforesaid agreement dated 28.07.2021 Rajeev Ranjan has returned his share by two separate RTGS transaction dated 15.11.2021 amounting to Rs.6,75,000/- and Rs.1,85,000/-. It is crystal clear that you all in collusion with each other with malafide intention from very inception retuned the aforesaid amount to frustrate the execution of aforesaid Development Agreement. That arbitration clause in terms of Article IX-Legal Procedure clause (4) has been quotesd herein below: "The parties agree that all disputes between the Landowner and the Developer shall be referred to sole arbitrator in accordance with the provisions of the Arbitration and Conciliation Act, 1996." That due to the aforesaid breach the scheme of the development agreement in which developer has to develop Schedule A land and keep his 54% share of the developed property/ completed flats and due to such breach the expected income of the developer, i.e.; Rs.4,10,98860 has been frustrated. You all have failed to perform your part of contract. The expected loss has been detailed in the table given below: 17 Katha 12,240 sq.ft. F.A.R- 2.5-sanctioned 30600 Total Cost of Building @ 1500/- 4,59,00,000 46% owner share (30,600) 14076 sq. ft. 54% Builder Share (30,600 x 54%) 16,524 sq. ft. Average Sale 5,265/- Total Sale Value 8,69,98,860 Cost 4,59,00,000 4,10,98,8860 It has also been learnt that you all are trying to give the aforesaid land to some other Developer for development of the aforesaid land if you do not restrain yourself to venture into such adventurous exercise the undersigned will be left with no other option but to approach competent court of law for seeking interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 viz for attachment and appointment of receiver of the said land at the appropriate time. Under the aforesaid facts and circumstances and without prejudice to the aforesaid right to invoke Section 9 of the Arbitration and Conciliation Act, 1996, the undersigned is left with no other alternative but to invoke Arbitration Clause and appoint Sri Sachin Kumar, practicing advocate of Jharkhand High Court as sole arbitrator to adjudicate dispute between the parties and request you to give consent and mutually agree on the aforesaid name to adjudicate the dispute between you all and the undersigned within 30 days from the receipt of this letter. Thanking You, Sd/- Yours sincerely Lalit Prakash, Partner M/s Reach Global. Annexure-1 Sl. Thanking You, Sd/- Yours sincerely Lalit Prakash, Partner M/s Reach Global. Annexure-1 Sl. No. Date RTGS-NEFT-CHEQUE/CASH Payment To Amount 1. 24.07.2020 RTGS Sanjeev Suman 2,00,000.00 2. 28.07.2020 RTGS Sanjeev Suman 10,00,000.00 3. 28.07.2020 RTGS Sanjeev Suman 3,00,000.00 4. 28.07.2020 CASH Sanjeev Suman 20000 5. 13.08.2020 Cash Sanjeev Suman 75000 6. 03/09/20 CHEQUE Sanjeev Suman 50000 7. 28.09.2020 CHEQUE Sanjeev Suman 2,00,000.00 8. 15.11.2020 CASH Sanjeev Suman 50000 9. 06/07/21 RTGS Jayant Kumar Son of Rajiv Ranjan 75000 10. 09/07/21 RTGS Sanjeev Suman 75000 11. 01/09/21 RTGS Sanjeev Suman 1,00,000.00 12. 04/09/21 Cheque Rajeev Ranjan 1,00,000.00 13. 06/10/21 Cash Jayant Kumar Son of Rajiv Ranjan 10000 Total 22,55,000.00 Twenty Two Lakh Five Five Thousand Only 5. As would appear from the records of the case, the applicant raised a dispute or a claim for the first time through its letter dated 18th January 2022. Mr. Vikas Pandey, the learned counsel for the applicant submits that the very act of the respondent no.1 who returned the consideration amount through two separate RTGS transactions on 15th November 2021 must be construed as if a dispute has arisen between the parties. This submission is without any substance. If the applicant wanted to object to the act of the respondent no.1 in returning the consideration price it was necessary that it should have objected to the said act. Now if the letter dated 18th January 2022 is construed as objection by the applicant to the aforesaid act of the respondent no.1, there is no denial or repudiation by the respondent no.1. Therefore, merely on the basis of the letter dated 18th January 2022 the applicant cannot straightway come to this Court under section 11(6) of the AC Act. In respect to other respondents, the grievance raised by the applicant is that the respondent no.3 did not execute a separate agreement. What emerges from the letter dated 18th January 2022 is that the grievance of the applicant is that one of the respondents did not execute a separate agreement and, that, the respondent no.1 returned the consideration amount on 15th November 2021. There is not even a whisper about any of the acts and steps taken by the applicant in furtherance of the Development Agreement dated 28th July 2020. Notwithstanding that, it has raised a claim for anticipated loss of Rs.4,10,98,860/-. It seems to this Court that the dispute raised by the applicant is not arbitrable. There is not even a whisper about any of the acts and steps taken by the applicant in furtherance of the Development Agreement dated 28th July 2020. Notwithstanding that, it has raised a claim for anticipated loss of Rs.4,10,98,860/-. It seems to this Court that the dispute raised by the applicant is not arbitrable. This also is relevant to indicate that this arbitration application was filed on 7th March 2022 and the applicant has moved the Commercial Court at Rachi by filing a petition under section 9 of the AC Act on 14th March 2022 in which an interim order has been passed on 4th January 2023 on the basis of pendency of the present arbitration application. 6. While so, Arbitration Application 11 of 2022 is dismissed.