Arijit Banerjee JUDGMENT
Arijit Banerjee, J.
1. In this revisional application the petitioner challenges a judgment and order dated 28th May, 2013 passed by the Ld. Civil Judge (Senior Division) at Siliguri in TS No. 39 of 2012 (Dr. Asif Iqbal Hossain v. Luxmi Township Limited & Ors.) whereby the Ld. Judge dismissed the application of the petitioner/defendant No. 1 under Section 8 of the Arbitration and Conciliation Act, 1996 thereby refusing to refer the disputes in the suit to arbitration. The material facts of the case are as follows.
2. The petitioner company was granted a lease of 99 years in respect of a land measuring 395 acres approximately for the purpose of setting up a township. Out of the said area, a portion measuring about 10.59 acres was meant for constructing a residential complex. The petitioner company obtained sanction from the Siliguri Jalpaiguri Development Authority being the opposite party No. 3 for construction of the residential complex. Thereafter applications were invited from intending purchasers of residential units/flats by issuing brochures.
3. The opposite party No. 1 purchased a flat in the said residential complex and was put in possession of the flat in January, 2012. The brochures issued by the petitioner as well as the possession letter contained/referred to certain 'general terms and conditions'.
4. Subsequent to delivery of possession, a registered deed of assignment was executed by the petitioner in favour of the opposite party No. 1. The sanctioned plan of the residential complex showed the place in front of the flat of the opposite party No. 1 as lawn/open ground space.
5. In March 2012 the opposite party No. 1 along with the predecessor-in-interest of the opposite party Nos. 2(i) to 2(iv) filed a suit before the Ld. Civil Judge (Senior Division) at Siliguri being Title Suit No. 39 of 2012 alleging that the aforesaid lawn/open ground space was being demolished by the petitioner for the purpose of making construction thereon in violation of the sanctioned plan. In the suit the plaintiffs claimed declaration of their right in respect of the common facilities and amenities within the Residency and injunction restraining the defendants from constructing any structure on the area demarcated as 'front lawn' in the building plan. The plaintiffs impleaded the petitioner and the opposite party Nos. 3 and 4 as defendants in the said suit.
6. In the said suit the plaintiffs filed an application under Order 39 Rules 1 and 2 of the CPC read with Section 151 thereof praying for a temporary injunction restraining the defendants from constructing any structure on the area demarcated as 'front lawn' in the sanctioned plan of the Residency.
7. On 6th March, 2012 the Ld. Judge passed an order of temporary injunction as prayed for by the plaintiffs.
8. The petitioner filed an objection to the injunction application of the plaintiffs. By an order dated 17th July, 2012, the Ld. Judge vacated the earlier order of injunction dated 6th March, 2012.
9. On 17th April 2013, the petitioner filed an application under Section 8 of the Arbitration and Conciliation Act, 1996, praying for a direction to refer the parties in TS No. 39 of 2012 to arbitration in terms of an arbitration clause contained in the general terms and conditions of the Residency. It was stated in the said application that the right, title and interest of the plaintiffs in respect of the flats in the Residency and/or the common areas and facilities are governed and controlled by the general terms and conditions of the Residency and Clause 19 thereof provided for resolution of disputes between the parties through arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996.
10. The plaintiffs filed their objection to the said Section