Rajesh Nandkumar Kadam v. Musarrat Sayed Ali

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION COMMERCIAL ARBITRATION APPLICATION NO. 241 OF 2024 WITH INTERIM APPLICATION (L) NO. 4872 OF 2025 IN COMMERCIAL ARBITRATION APPLICATION NO. 241 OF 2024 WITH COMMERCIAL ARBITRATION PETITION NO. 484 OF 2024 Rajesh Nandkumar Kadam ...Applicant

Versus

Musarrat Sayed Ali

...Respondent

Mr. Tejas Kishor Sanghrajka a/w Adv Kayval P. Shah for the Applicant.

Appearance not received for Respondent.

CORAM

: SOMASEKHAR SUNDARESAN, J.

DATE : APRIL 22, 2025 PC :

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 December 16, 2017. The arbitration agreement is contained in Clause 14 (found at Digitally signed by ASHWINI JANARDAN VALLAKATI Date:

2025.05.08 12:01:49 +0530 ASHWINI JANARDAN VALLAKATI

Page 51 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 August 17, 2023. The invocation notice was replied to by letters dated September 6, 2023 and October 16, 2023. 3.

Learned Counsel for the Respondent raises an issue that dispute relating to a Partnership, where the firm is not registered, may not be amenable to resolution. In my opinion, this would be an issue on merits, which need to be addressed before the arbitral tribunal. 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

Consequently, no useful purpose would be served in keeping this matter pending any further.

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.

The Section 9 Petition being Commercial Petition No.484 of 2024 stands converted into an Application under Section 17 of the Act for consideration by the arbitral tribunal appointed hereby. Given the efflux of time, the Petitioner is at liberty to modify or mould the contents of Section 9 Petition for its consideration as a Section 17 Application.

7.

In these circumstances, both this Application as well as the Section 9 Petition are hereby finally disposed of, in terms of the following order:

a) Mr. Mandar Soman, 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:- 21, 3rd Floor Bombay Mutual Building, P M Road, Fort, Mumbai-400001 Email ID: mandar.soman82@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 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 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.

8.

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.

9.

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.]