Nobel Biocare India Private Limited v. Hirendra Kumar Kushwaha Proprietor Of Hap Dental

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO. 89 OF 2025 Nobel Biocare India Private Limited ...Applicant

Versus

Hirendra Kumar Kushwaha Proprietor Of Hap Dental

...Respondent

Ms. Diksha Tripathi, i/b India Law LLP for the Applicant. None for Respondent.

CORAM

: SOMASEKHAR SUNDARESAN, J.

DATE : SEPTEMBER 10, 2025 ORDER :

1.

This Application 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 an Agreement dated January 1, 2016 ("Agreement"). The arbitration agreement is contained in Clause 19 (found at Pages 82 and 83 of the Application) of the Distribution Agreement. In the interest of brevity, the arbitration agreement is not being extracted here. Suffice it to say that this matter falls within the jurisdiction of this Court, the seat of the arbitration being Mumbai. Digitally signed by ASHWINI JANARDAN VALLAKATI Date:

2025.09.23 10:55:13 +0530 ASHWINI JANARDAN VALLAKATI

2.

The arbitration agreement provides for each party nominating an arbitrator, but if one of the parties does not name the arbitrator, the arbitrator appointed by the other party would be the Sole Arbitrator. Since this would run the risk of being considered a unilateral appointment, Learned Counsel for the Applicant requests that the Court appoint the arbitrator as a Sole Arbitrator.

3.

It is apparent from the record that the arbitration agreement was invoked by the Applicant on November 1, 2018. There is no reply filed to the said invocation. A service affidavit dated September 8, 2025 is taken on record.

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. 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

5.

Being satisfied that an arbitration agreement is validly in 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 to arbitration by a Sole Arbitrator.

6.

In these circumstances, this Application is hereby finally disposed of, in terms of the following order: A) Presolv360, an independent online dispute resolution institution is directed to appoint a sole arbitrator to adjudicate upon the disputes and differences between the parties arising out of and in connection with the Agreement referred to above and administer the same;

B) The contact particulars of the Director, Presolv360 are set out below:- Email id :

info@presolv360.com Contact No.

:

+91-9820167337 Address :

1st Floor, Esperanca Building, Shahid Bhagat Singh Road, Colaba, Mumbai - 400 001.

Website :

www.presolv360.com

C) A copy of this Order will be communicated to Presolv360 by the Advocates for the Applicant within a period of one week from the date on which this order is uploaded on the website of this Court. The Applicant shall provide the contact and communication particulars of the parties to Presolv360 along with a copy of this Order;

D) It is clarified that Presolv360 being an ODR institution, all proceedings will be conducted online through electronic mode, unless otherwise agreed between the appointed Arbitrator and the parties, with appropriate notification to the administration of Presolv360. E) The administration of Presolv360 is requested to appoint an independent arbitrator in compliance with the Act and its own rules consistent with the Act as soon as possible and in any event within a period of two weeks from receipt of a copy of this Order;

F) 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 administration of Presolv360 and any other particulars as reasonably requested

by the administration. Communications to such email addresses shall constitute valid service of correspondence in connection with the arbitration;

G) All arbitral costs and fees of the arbitration 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; and H) The seat of the arbitration shall be deemed to be the same as the seat discernible from the Agreement while the arbitration shall primarily be conducted online. 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.]