Kashyap Kiran Mehta v. Prima Terra Buildtech Private Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION COMMERCIAL ARBITRATION APPLICATION NO. 136 OF 2024 Kashyap Kiran Mehta ...Applicant

Versus

Prima Terra Buildtech Pvt. Ltd.

...Respondent

Ms.Twinkle Khemka (through VC), i/b Khemka & Associates, the Applicant.

Ms. Poonam Dubey, a/w Ashutosh Kaushik, Laxmi Mishra, i/b M/s. Kaushik & Co. for Respondent.

CORAM

: SOMASEKHAR SUNDARESAN, J.

DATE : FEBRUARY 10, 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 3, 2020. The arbitration agreement is contained in Clause 31 (found at Page 84 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 Digitally signed by ASHWINI JANARDAN VALLAKATI Date:

2025.02.18 17:30:47 +0530 was invoked by Petitioner on December 4, 2023, which led to a reply ASHWINI JANARDAN VALLAKATI

dated December 26, 2023.

3.

It is seen from the record that there is no denial of the existence of an arbitration agreement in response to the invocation notice. On the contrary the Respondent has in fact proposed an alternate name as an arbitrator.

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. 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 dated December 3, 2020 to arbitration by a Sole Arbitrator, on the following terms:- A] Mr. Kunal Katariya, 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; 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 1974 3 Ajay Madhusudan Patel Vs. Jyotindra S. Patel, 2024 SCC OnLine, 2597

Office Address:- 310, Veena Chambers, 21 Dalal Street, Fort, Mumabi 400 001 Email ID: kunal@kunalkatariya.in Mobile No. 8055189419 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 today. The Petition shall provide the contact and communication particulars of the parties to the Arbitral Tribunal along with a copy of this Order;

E] 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;

F] 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.]