Bharat Petroleum Corporation Limited v. Kailash Parbat Hindu Hotcl

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION Commercial Arbitration Application No. 447 of 2024 Bharat Petroleum Corporation Limited ...Applicant (s)

Versus

Kailash Parbat Hindu Hotel & Ors

...Respondent(s)

Ms. Kritika Sethi a/w. Vasundhara Dhar, for Applicant. None for Respondent(s).

CORAM

: SOMASEKHAR SUNDARESAN, J.

Date : April 1, 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 September 2, 2013. The arbitration agreement is contained in Clause 21 of the agreement [found at Page 48 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 September 6, 2023, to which there is no reply. Affidavit of service was tendered on the last hearing. It is also seen that by an email dated September 6, 2023, the parties had been served and his reply was that he only keeps account for the Respondents.

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 agreement dated September 2, 2013 to arbitration by a Sole Arbitrator.

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

5.

Since an arbitrator has already been appointed in Commercial Arbitration Application (L) No. 9195 of 2024 by an order dated March 20, 2025, it would be appropriate to appoint the same arbitrator in the matter to resolve disputes and differences between the parties.

6.

In these circumstances, no useful purpose would be served in keeping these proceedings pending any further. Consequently, both the Section 11 Applications are finally disposed of, in terms of the following terms:

A] Ms. Ayushi Anandpara, 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:- C/o Rohaan Cama, Office Nos. 17-18, 1st Floor, Islam Building, Veer Nariman Road, Fort, Mumbai - 400 001.

Email ID: ayushi.anandpara@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 today. 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 Advocates for the Applicant 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 Applicant and a copy of the same shall be furnished by the Advocates for the Applicant to the Respondents;

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.

7.

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. 8.

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.]