Mahesh Shantial Bhayani v. Tushar Sampatlal Shah

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION ARBITRATION PETITION NO.172 OF 2025 Mr. Mahesh Shantial Bhayani ....Petitioner

Versus

Mr. Tushar Sampatlal Shah ....Respondent Mr. Amey Deshpande, for Petitioner.

Mr. Manoj M. Gadkari, Respondent (VC).

CORAM: SOMASEKHAR SUNDARESAN, J.

DATE : FEBRUARY 3, 2026 ORDER :

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 an agreement dated May 13, 1994 ("Agreement"). The arbitration agreement is contained in Clause 30 (Found at Page No. 31 of the Petition). 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 common ground that the disputes and differences between the parties under the very same arbitration agreement culminated in an Digitally signed by AARTI GAJANAN PALKAR Date:

2026.02.06 12:30:22 +0530 AARTI GAJANAN PALKAR

Arbitral Award, which eventually came to be set aside on December 16, 2021. With the setting aside of the Arbitral Award, the subsistence of the arbitration agreement is not in doubt.

3.

The jurisdiction under Section 11 of the Act being restricted to examining the existence of the arbitration agreement and it being writ large that the arbitration agreement exists and subsists, the date on which invocation was effected, and the date on which the Section 11 Petition were filed, have been examined.

4.

It is seen that the invocation was made well within three years of the setting aside of the earlier arbitral award, and forthwith, the parties have indeed approached this Court under Section 11 Petition. This Petition has remained pending on the docket of this Court. Therefore, no useful purpose would be served in keeping it pending any further. 5.

Without disturbing the appointment of the Arbitral Tribunal, the effect of this order is deferred by a period of four weeks to enable the parties to attempt conciliation given the sheer length of time for which the disputes have been subsisted. If the disputes do not get resolved within the next four weeks, the order shall come into effect and the parties shall forthwith proceed to arbitration. 6.

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.

7.

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.

8.

In these circumstances, this Petition is hereby finally disposed of, in terms of the following order:

A] Mr. Chaitanya Nikte, 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; Office Address:- Office No. 201, Amelia, 2nd Floor, CTS No.1102/A/6, Near Hotel Ambassador, Model Colony, Pune - 411 016.

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. v. Krish Spinning - 2024 SCC OnLine 1974 3 Ajay Madhusudan Patel v. Jyotindra S. Patel - 2024 SCC OnLine, 2597

Email ID:

legal@niktelaw.com 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 of upload of this order. 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 Advocates for the Petitioner 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 Petition and a copy of the same shall be furnished by the Advocates for the Petitioner to the Advocates for the Respondent;

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.

9.

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. 10.

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.]