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(2025) 2 SCC 147 ____________________________________________________________________________ PAGE NO. 9 of 94 6 MARCH 2026 Neeta Sawant ARBPL 35545 OF 2025

12. Mr. Khandeparkar further submits that on account of inextricable interconnection between DA and PAAA, there is otherwise incorporation of arbitration clause by reference. That PAAA specifically refers to DA and the same is executed towards performance of obligations under the DA. That reference to the DA is not merely as and by way of narration but has been made with a view to incorporate terms thereof as a part and parcel of PAAA. That in any case, DA and PAAA are multi-party documents, which are inextricably connected in the context of subject matter. He relies on paragraph 132 of the judgment in Cox and Kings Limited (supra) in support of his contention that Respondent No.2, by virtue of his relationship with Society and active involvement in performance of obligations, which are intricately linked to the subject matter, is not a stranger to the disputes between the signatory parties. That even otherwise arbitration clauses contained in DA and PAAA are widely worded to include any and every dispute that may arise between parties in relation thereto. He relies on judgment of the Apex Court in Giriraj Garg Versus. Coal India Limited and Ors. 5 in support of his contention that the expression 'any dispute arising out of or in connection with' needs to be given the widest amplitude and context. That the peculiarity of Clause 38 of the DA would not include only disputes in context of the developer and the society but would also extend to individual disputes, which would arise on account of defaults committed by the member in performance of obligations stipulated under the DA.

27. In the present case, the developer wants to arbitrate against individual non-signatory member. There are converse cases where the members want to arbitrate against the developer. In my view, this difference is immaterial and what needs to be decided is the broad principle as to whether disputes relating to development process can be agitated through private arbitration where one of the parties to the dispute is not a signatory to the DA. Whether a member, who is opposed to redevelopment process and has consciously not signed the DA, can either initiate arbitration, or can be made party to the arbitral proceedings, is the issue that arises for consideration. Here again, there can be difference in fact situation in individual cases because every DA need not include all members of the society as independent parties thereto. This particularly happens where the society comprises of large number of members, who are neither indicated separately as parties to the DA nor are required to sign the same. In such a case, the act of non- signing the DA is not voluntary act by the members, and it is more a matter of convenience where the society acts on behalf of all members and signs and executes the DA. On the other hand, there are cases, like the present one, where individual members are also made parties to the DA and are required to sign and execute the same. In such case, the act of non-execution or non-signing of DA by a dissenting member is a conscious choice made by him since he is opposed to the redevelopment process. Thus, opposition or support to the redevelopment process cannot be inferred only on the basis of the act of not signing the DA. ____________________________________________________________________________ PAGE NO. 21 of 94 6 MARCH 2026 Neeta Sawant ARBPL 35545 OF 2025 What constitutes dissent by a member thus does not depend solely on the act of failure to sign the DA. Thus, a non-signatory to the DA can both be supporting, as well as dissenting member of the society. In the present case, Respondent No.2 was required to sign the DA but has made a conscious choice not to sign the same.

80. The judgment of Constitution Bench in Cox and Kings essentially deals with application of 'group of companies' doctrine for inferring consent or intent to arbitrate on the part of non-signatory party. The present case does not involve application of Group of Companies doctrine, in strict sense. However, arbitration agreement with Respondent No.2 member is sought to be inferred on the basis of assumption of contractual obligations of DA by him and active participation in its performance. However, if the tests laid down in paragraph 127 of the judgment in Cox and Kings are strictly applied, it is difficult to hold that Respondent No.2 would be a veritable party to the arbitration agreement. He has not voluntarily undertaken contractual ____________________________________________________________________________ PAGE NO. 62 of 94 6 MARCH 2026 Neeta Sawant ARBPL 35545 OF 2025 obligations arising out of the underlying contract, which in the present case is the DA. He has in fact opposed to the very execution of the DA. The case does not involve a scenario where Respondent No.2 has actively participated in the negotiations and execution of the DA, but has stood aside and not put his signature thereon. He was always opposed to execution of the DA. His conduct is not in harmony with the signatory i.e. the society. Therefore, it is difficult to believe that the nature or standard of his involvement in performance of the contract is such that he has actively assumed obligations or performance upon himself under the DA.

84. ASF Buildtech (supra) further builds on the principles enunciated in judgments of Cox & Kings and Ajay Madhusudan Patel. But for the present case, the judgment in ASF Buildtech is relied upon mainly in support of contention that the High Court must adopt hands-off approach and leave the issue of non-signatory's role as party to arbitration agreement to the Arbitral Tribunal. That issue is discussed separately in latter part of the judgment.

85. In Mukesh Patel (supra), a Single Judge of this Court has discussed the issue of applicability of principle of veritable party in relation to DA in the light of ratio of the judgments in Cox and Kings and ASF Build- tech Private Ltd. (supra). However, in Mukesh Patel the issue for consideration was slightly different. The case did not involve the issue of non-signatory member of a cooperative society being treated as a veritable party to the DA. The case before this Court involved disputes and differences between the two developers. The society had executed DA with the Applicant therein, which was terminated, and a new developer was appointed by the Society. The earlier developer invoked arbitration clause in the DA and sought to implead the new developer as a veritable party to the DA. This Court rejected the contention that the new developer could be a veritable party to the DA. Distinguishing the judgments in Cox and Kings and ASF Build-tech Private Ltd. (supra), ____________________________________________________________________________ PAGE NO. 67 of 94 6 MARCH 2026 Neeta Sawant ARBPL 35545 OF 2025 this Court held that for roping in a non-signatory to the arbitration agreement into arbitral proceedings, the elements such as 'Group of Company', 'alter ego' or 'composite transactions' need to be discernible. This Court held in paragraphs 17 to 24 of the judgment as under: