Vartaknagar Shramsfalya Co-Operative Housing Society v. M/S Aditya Enterprises Vartak Nagar Project

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION COMMERCIAL ARBITRATION PETITION NO.6 OF 2024 Vartaknagar Shramsfalya Co-Operative Housing Society ....Petitioner

Versus

M/S Aditya Enterprises Vartak Nagar Project ....Respondent Mr. S.A. Waradkar, Advocate for Petitioner.

None for the Respondent.

CORAM: SOMASEKHAR SUNDARESAN, J.

DATE : APRIL 24, 2025 PC :

1.

This Petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 ("the Act"), seeking appointment of an arbitrator in connection with disputes and differences that are said to have arisen between the parties under the Development Agreement dated July 30, 2012 ("Agreement"). The arbitration agreement is contained in Clause 49 (found at Page 60 of the Petition). In the interest of brevity, the arbitration agreements are not being extracted here. Suffice it to say that this matter falls within the jurisdiction of this Court.

Digitally signed by AARTI GAJANAN PALKAR Date:

2025.06.18 12:46:25 +0530 AARTI GAJANAN PALKAR

2.

After the execution of the Agreement, Respondent No.1 and Respondent No.2 executed a Deed of Assignment dated November 25, 2016, by which development was to be carried out jointly by Respondent Nos.1 and 2.

3.

Disputes and differences have arisen between the parties for which an invocation notice dated May 9, 2023 was issued by the Petitioner. It has not been responded to, till date. Despite service, Respondent No.2 has not attended to these proceedings. No useful purpose would be served by keeping this Petition pending any further. 4.

The scope of review under Section 11 is explicitly set out in Section 11(6A) of the Act. It is now trite law, with particular regard to the decisions of a seven-judge bench in the Interplay Judgement1 followed by multiple others, including SBI General2 and Patel3 that the Section 11 Court ought not to venture beyond examining the existence of a validly existing arbitration agreement that has been formally executed. Even questions of existential substance is a matter that falls squarely in the domain of the arbitral tribunal, in view of Section 16 of the Act.

5.

Being satisfied that an arbitration agreement is validly in 1 In Re: Interplay Between Arbitration Agreements Under Arbitration and Conciliation Act, 1996 & Stamp Act, 1899 - (2024) 6 SCC 1 2 SBI General Insurance Co. Ltd. v. Krish Spinning - 2024 SCC OnLine SC 1754 3 Ajay Madhusudan Patel v. Jyotrindra S. Patel - 2024 SCC OnLine SC 2597

existence, and that arbitration has been duly invoked, it is in the fitness of things to refer the disputes and differences between the parties in connection with the aforesaid agreement dated [_] to arbitration by a Sole Arbitrator.

6.

In these circumstances, both this Petition is hereby finally disposed of, in terms of the following order: A] Ms Neeta Jain, an advocate of this Court is hereby appointed as the Sole Arbitrator to adjudicate upon the disputes and differences between the parties arising out of and in connection with the Agreement referred to above; B] A copy of this Order will be communicated to the Learned Sole Arbitrator by the Advocates for the Petitioner within a period of one week from the date on which this order is uploaded on the website of this Court. The Petitioner shall provide the contact and communication particulars of the parties to the Arbitral Tribunal along with a copy of this Order;

C] The Learned Sole Arbitrator is requested to forward the statutory Statement of Disclosure under Section 11(8) read with Section 12(1) of the Act to the parties within a period of two weeks from receipt of a copy of this Order; D] The parties shall appear before the Learned Sole Arbitrator on such date and at such place as indicated, to obtain appropriate directions with regard to conduct of the arbitration including fixing a schedule for pleadings,

examination of witnesses, if any, schedule of hearings etc. At such meeting, the parties shall provide a valid and functional email address along with mobile and landline numbers of the respective Advocates of the parties to the Arbitral Tribunal. Communications to such email addresses shall constitute valid service of correspondence in connection with the arbitration;

E] All arbitral costs and fees of the Arbitral Tribunal shall be borne by the parties equally in the first instance, and shall be subject to any final Award that may be passed by the Tribunal in relation to costs.

7.

Needless to say, nothing contained in this order is an expression of an opinion on merits of the matter or the relative strength of the parties. All issues on merits are expressly kept open to be agitated before the arbitral tribunal appointed hereby. 8.

All actions required to be taken pursuant to this order, shall be taken upon receipt of a downloaded copy as available on this Court's website.

[ SOMASEKHAR SUNDARESAN, J.]