Ishwar Vastuvikas Developers v. Vartak Nagar Shop Keepers Premises Coop Society Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION COMMERCIAL ARBITRATION PETITION NO. 48 OF 2024 Ishwar Vastuvikas Developers

...Petitioner

Versus

Vartak Nagar Shop Keepers Premises Coop Society Ltd

...Respondent

Mr. Sarthak Utangale i/b M/s Utangale & Co. for the Petitioner. Mr. Rohit Joshi, for Respondent.

CORAM

: SOMASEKHAR SUNDARESAN, J.

DATE : APRIL 2, 2025 PC :

1.

This Petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 ("the Act"). 2.

After the matter was heard for some time, Learned Counsel for the parties agree that leaving all contentions open, the arbitral tribunal may be appointed. At the heart of the controversy about the reference under this Petition lies the existence of prior cross litigation, with each party having filed a suit against each other in the Civil Court. 3.

Be that as it may, leaving it to the arbitral tribunal to decide Digitally signed by ASHWINI JANARDAN VALLAKATI Date:

2025.04.08 11:02:47 +0530 whether the cause of action has varied or is covered by the plaints ASHWINI JANARDAN VALLAKATI

already filed by the respective parties, it would be appropriate not to let this remain pending on the docket of this Court any further. 4.

Consequently, all the disputes and differences pursuant to development agreement dated May 21, 2010 is hereby referred to arbitration. The arbitration agreement is contained in Clause 21 (found at Page 117 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.

5.

It is apparent from the record that the arbitration agreement was invoked by the Petitioner on July 27, 2023. 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 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

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. Siddesh Bhole, 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:- 3rd Floor, Buona Casa, Near Kashmir Emporium, P.M. Road, Mumbai- 400 001 Email ID: siddhesh@ssbadvisory.in 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.

9.

While the seat of the arbitration shall be Thane, the Learned Arbitral Tribunal shall be free to conduct the proceedings virtually through video conferencing or by consent of parties, hold specific hearings in Mumbai.

10.

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.

11.

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.]