Whether claim for specific performance of agreement to sell or agreement to mortgage is arbitrable?

Ss. 8, 11 and 16 - Arbitrability of dispute - Specific performance of a right - Agreement to sell or agreement to mortgage -
Held, an agreement to sell or mortgage does not involve any transfer of right in rem but creates only a personal
obligation - Hence, claim for specific performance of agreement to sell or agreement to mortgage is arbitrable,
Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532


Arbitration and Conciliation Act, 1996
Ss. 8, 11, 16, 34(2)(b) and 48(2) - ``Arbitrability'' of dispute - What is - Scope and nature thereof - Three facets of
arbitrability relating to jurisdiction of Arbitral Tribunal, explained - Disputes that are not amenable to be decided through
arbitration - Held, all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being
unsuited for (private) arbitration - Examples enumerated - Though disputes in question were covered by arbitration
clause, they not being arbitrable as they related to rights in rem, held, rightly not referred to arbitration, 
Conceptual Jurisprudence
Rights - Right in rem and right in personam, and judgment in rem and judgment in personam - Distinguished - Held, a
right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest
protected solely against specific individuals - Correspondingly, judgment in personam refers to a judgment against a
person as distinguished from a judgment against a thing, right or status, and judgment in rem refers to judgment that
determines status or condition of property which operates directly on the property itself, 
Arbitration and Conciliation Act, 1996
Ss. 8, 11 and 16 - Arbitrability of dispute - Mortgage suit - Held, a suit for sale, foreclosure or redemption of a
mortgaged property should only be tried by a court, and not by an Arbitral Tribunal - A suit for sale of mortgaged property
is either an action in rem or for enforcement of right in rem - Principles and reasons discussed in detail - Hence, though
disputes in question were covered by arbitration clause, they not being arbitrable as they related to rights in rem, rightly
not referred to arbitration, 
Arbitration and Conciliation Act, 1996
Ss. 8, 11 and 16 - Arbitrability of dispute - Specific performance of a right - Agreement to sell or agreement to mortgage -
Held, an agreement to sell or mortgage does not involve any transfer of right in rem but creates only a personal
obligation - Hence, claim for specific performance of agreement to sell or agreement to mortgage is arbitrable, 
Ss. 8 and 7 - Reference to arbitration - Mortgage suits - Bifurcation of issues in suit - Held, even if some of issues or
questions in a mortgage suit are arbitrable or could be decided by private forum, issues in mortgage suit cannot be
divided - Mortgage suit has to be adjudicated as a whole, 
Ss. 16 and 17 - Scope and power of Arbitral Tribunal - Interim measures - Adjustment of interests of mortgagor and
mortgagee - Held, is beyond power of Arbitral Tribunal, 
Civil Procedure Code, 1908

Or. 34 - Suit for sale, foreclosure or redemption of mortgaged property - Working of provisions in regard to, examined in
detail
Arbitration and Conciliation Act, 1996
S. 8 - First statement on the substance of the dispute - What is - Filing of written statement/objections to application for
temporary injunction in pending suit, prior to filing of application for reference of disputes to arbitration - Held, the same
does not forfeit right of party to seek reference to arbitration - Filing of reply by defendant in supplemental proceedings
(See S. 94 CPC) cannot be treated as submission of statement on substance of dispute, unless he intends to submit
himself to jurisdiction of court - Application filed for referring parties to arbitration subsequent to filing counter-affidavit
opposing interim relief in pending suit for enforcement of mortgage - High Court refused to refer dispute to arbitration on
ground that filing of said counter-affidavit amounted to submission of first statement on the substance of the dispute -
Held, filing of reply for the limited purpose of opposing interim relief in an application for temporary injunction/attachment
before judgment/appointment of Receiver does not bar right of party to seek reference of disputes to arbitration - In
present case, respondent had filed suit for enforcement of mortgage by sale - Further held, as enforcement of mortgage
is right in rem binding not only between parties but also on entire world, held, such right has to be decided by courts of
law and not by Arbitral Tribunals Hence, court where mortgage suit is pending, should
not refer parties to arbitration, 
Civil Procedure Code, 1908
S. 94 & Ors. 38, 39 & 40 and Ors. 6, 7 & 8 - Nature of supplemental proceedings - Objections/Counter-affidavit
opposing application for interim relief, held, does not amount to a statement on substance of dispute, 
Arbitration and Conciliation Act, 1996
Ss. 8 and 16 - Reference to arbitration in pending suit - Duty of court - Refusal to refer to arbitration - When permissible -
Held, court seized of the suit has to decide all aspects of arbitrability - It cannot be left to the decision of arbitrator - Even
if arbitration agreement exists between the parties, court seized of the suit may reject application under S. 8 to refer
parties to arbitration if subject-matter of the suit is capable of adjudication only by a public forum or relief claimed can
only be granted by a court or tribunal.
Arbitration and Conciliation Act, 1996
Ss. 8 and 11 - Scope of Ss. 11 and 8 contrasted - Held, while considering application under S. 11, Chief
Justice/designate does not embark upon ``arbitrability'' or appropriateness of adjudication by private forum, once he finds
that there exists an arbitration agreement, and leaves the issue of arbitrability for decision of Arbitral Tribunal - Whereas
in pending suit, in an application under S. 8, court has to decide all aspects of arbitrability - It cannot be left to the
decision of arbitrator, 
Arbitration and Conciliation Act, 1996
S. 8 - Reference to arbitration - Issues to be decided by court prior to referring disputes to arbitration - Enumerated,

Arbitration and Conciliation Act, 1996
S. 8 - Reference of disputes to arbitration in pending suit - Waiver of right - Estoppel - Held, party which has willingly
participated in proceedings in suit and has subjected itself to jurisdiction of court, cannot subsequently turn around and
say that dispute should be referred to arbitration, 
Arbitration and Conciliation Act, 1996
S. 8 - Referring dispute to arbitration in pending suit - Limitation for filing application - Held, though S. 8 does not
prescribe any time-limit for filing application, such application has to be made at the earliest - Appellant filed application
for referring disputes to arbitration long after contesting supplemental proceedings in pending suit - Appellant having
contested supplemental proceedings alone, held, mere passage of time as above cannot lead to inference that
defendant had subjected himself to jurisdiction of court for adjudication of main dispute and had thus lost the right to seek
reference to arbitration - At relevant time, unamended Or. 8 R. 1 CPC was governing filing of written statements and said
rule did not prescribe any time-limit for filing written statement - Also, talks were in progress for arriving at a settlement
out of court - Only when such talks failed, had appellant filed application under S. 8 - Hence appellant's application could
not be rejected on grounds of delay,

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