D.N. Nagar Niwara Co-Operative Housing Society Ltd v. Westin Spaces Pvt Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

Digitally signed by PURTI PRASAD PARAB Date:

2025.04.08 15:14:32 +0530 PURTI PRASAD PARAB ORDINARY ORIGINAL CIVIL JURISDICTION COMM. ARBITRATION PETITION NO. 751 OF 2024 ALONGWITH COMM. ARBITRATION APPLICATION (L) NO. 39398 OF 2024 D.N. Nagar Niwara Co.operative Housing Society Ltd.

...Petitioner

Versus

Westin Spaces Pvt. Ltd.

...Respondent

Mr. Anoshak Daver a/w Mr. Bumji Doctor, Mr. Sachin V. Masurkar and Ms. Sunitha Perumal i/b Mr. Sachin V. Masurkar for the Petitioner.

Ms. Vaishali Ugale i/b Ms. Komal Punjabi for the BMC/Respondent No.2.

CORAM

: SOMASEKHAR SUNDARESAN, J.

DATE : MARCH 24, 2025 PC :

1.

Commercial Arbitration Application (L) No. 39398 of 2024 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 a contractual Agreement dated June 2, 2021 ("Agreement"). The arbitration agreement is contained in Clause 56 (found at Page 81 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.

Invocation notice has been issued by the Applicant on November 6, 2024, to which there is no response from the Respondent.

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 Supreme Court's decision rendered by 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 June 2, 2021 to arbitration by a Sole Arbitrator.

5.

In these circumstances, no useful purpose would be served by keeping this matter pending, consequently, Section 11 Application is finally disposed of in the following terms:- A] Retired Justice Mr. S.J. Kathawalla, former Judge 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; Address : 43, Free Press House, 4th Floor, 215, Free Press Journal Marg, Nariman Point, Mumbai - 400 021. 1 In Re: Interplay Between Arbitration Agreements under the 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 SC 1754 3 Ajay Madhusudan Patel Vs. Jyotrindra S. Patel - 2024 SCC OnLine SC 2597

Email ID: skathawalla@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 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 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 Application and a copy of the same shall be furnished by the Advocates for the Applicant 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. 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.

6.

Commercial Arbitration Petition No. 751 of 2024, a Petition under Section 9 of the Act shall be converted into an application under Section 17 of the Act for consideration by the Arbitral Tribunal appointed hereby. Therefore, Commercial Arbitration Petition No. 751 of 2024 is also finally disposed of.

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.]