Mahindra And Mahindra Ltd v. G S Autofab Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION COMM. ARBITRATION APPLICATION NO. 177 OF 2024 Mahindra & Mahindra Limited ...Applicant

Versus

1. G.S. Autofab Limited

2. Sudhir Kumar Sharma

3. Shadab Ahmad

4. Mr. Shyam Singh

...Respondents

Digitally signed by SHRADDHA KAMLESH TALEKAR Date:

2025.02.25 14:33:30 +0530 SHRADDHA KAMLESH TALEKAR Mr. Anushka Shetty a/w. Aniket Anilkumar i/b MLS Vani & Associates, for Applicant.

None for Respondents.

CORAM : SOMASEKHAR SUNDARESAN, J.

Date : February 17, 2025 P. C. :

1.

This is an Application under Section 11 of the Arbitration and Conciliation of the 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 a dealership agreement dated July 5, 2018 ("Agreement"). The arbitration agreement is contained in Clause 45 (found at Page 110 of the Application). 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.

2.

It is apparent from the record that the arbitration agreement was invoked by the Applicant on June 12, 2024, which is found at Exhibit E on Page 138. Despite service, the Respondents have not entered appearance. 3.

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 Supreme Court's decision rendered by 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 the question of existential substance is a matter that falls squarely in the domain of the arbitral tribunal, in view of Section 16 of the Act.

4.

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. 1 In Re: Interplay Between Arbitration Agreement under Arbitration and Conciliation Act, 1996 and Stamp Act - 1899 (2024) 6 SCC 1 2 SBI General Insurance Co. Ltd. Vs. Krish Spinning - 2024 SCC OnLine SC 1754 3 Ajay Madhusudan Patel Vs. Jyotindra S. Patel - 2024 SCC OnLine, SC 2597

5.

In these circumstances, this Application is finally disposed of sending the parties to conduct arbitral proceedings before the Arbitral Tribunal appointed hereby in the following terms :

A] Mr. Jay Sanklecha, a Learned 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; Office Address: 302, 3rd Floor, Oval House, British Hotel Lane, Nagindas Master Road, Mumbai - 400 001. Email ID:

jaysanklecha@gmail.com B] A copy of this Order will be communicated to the Learned Sole Arbitrator by the Advocates for the Applicant within a period of one week from today. The Applicant 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 Advocates for the Applicant so as to enable them to file the same in the Registry of this Court. The Registry of this Court shall retain the said Statement on the file of this Application and a copy of the same shall be furnished by the Advocates for the Applicant to the Respondents;

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.

6.

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.

7.

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.]