“It will be noticed that ‘validity’ of an Arbitration Agreement is apart from its ‘existence’. One moot question that therefore, arises, and which needs to be authoritatively decided by a Bench of Three Learned Judges, is whether the word ‘existence’ would include weeding-out Arbitration Clauses in agreements which indicate that the subject-matter is incapable of Arbitration.
Questions of Non-Arbitrability, involved in a Transfer of Property Act situation, cannot possibly be said to have been answered [completely] in Natraj Studios (1981) 1 SCC 523 or Booz Allen, (2011) 5 SCC 532 as has been stated in Paragraph 18, Himangni Enterprises, (2017) 10 SCC 706.
The Transfer of Property Act, 1882 is silent on Arbitrability, and does not negate Arbitrability. Referred to a Bench of Three Hon’ble Judges.”
– Hon’ble Justice R.F. Nariman, Vidya Drolia v. Durga Traiding Corporation, [Civil Appeal No. 2402 of 2019].