Sany Heavy Industry India Pvt Ltd v. Pradip Poddar

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION No. 147 OF 2024 Digitally signed by SHRADDHA KAMLESH TALEKAR Date:

2025.03.22 20:26:54 +0530 SHRADDHA KAMLESH TALEKAR Sany Heavy Industry India Pvt. Ltd.

...Applicant

Versus

Pradip Poddar & Anr.

...Respondents

Mr. Mahesh Deshmukh a/w. Ms. Bijal Gogri i/b GNP Legal, for Applicant.

None for Respondents.

CORAM : SOMASEKHAR SUNDARESAN, J.

Date : March 10, 2025 P. C.

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 the agreements dated August 14, 2020 and September 30, 2021. The arbitration agreement is contained in Clause 23 (found at Page 45 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 Applicant on February 5, 2024, to which, there is no response by the Respondents. Despite service, the Respondents have not entered appearance. Service affidavit dated May 10, 2024 is taken on record.

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 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. 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 agreements to arbitration by a Sole Arbitrator. 5.

In these circumstances, no fruitful purpose would be served in keeping the Application pending on the docket of this Court. Consequently, the Applications are hereby finally disposed of, in terms of the following order: A] The disputes and differences covered by this Application is hereby referred to the Indian Law Society's Centre for Arbitration and Mediation, Pune (https://ilsca.co.in), in terms of its Institutional Arbitration Rules, to appoint an appropriate arbitrator to adjudicate upon the disputes and differences between the parties arising out of and in connection with the Agreement referred to above;

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

B] A copy of this Order will be communicated to the Indian Law Society's Centre for Arbitration and Mediation, Pune by the Advocates for the Applicant 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 Centre 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 Petitioner and a copy of the same shall be furnished by the Advocates for the Petitioner to 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.

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.]