Macdermid Enthone India Pvt. Ltd. v. M/S. Sumangalam Sales
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION ARBITRATION PETITION NO. 195 OF 2025 MacDermid Enthone India Pvt. Ltd.
Previously known as Coventya India Pvt. Ltd.
...Petitioner
Versus
M/s. Sumangalam Sales
...Respondent
Digitally signed by SHRADDHA KAMLESH TALEKAR Date:
2025.11.18 10:38:14 +0530 SHRADDHA KAMLESH TALEKAR Mr. Akshay Doctor a/w. Ms. Sakshi Sharma, Ms. Shubhi Dotiya i/b Desai & Diwanji, for Petitioner.
Mr. Anuj Gupta a/w. Adv. Amish Shailesh Gandhi, for Respondent.
CORAM
: SOMASEKHAR SUNDARESAN, J.
Date : November 12, 2025 ORDER :
1.
This Petition 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 October 1, 2020 ("Agreement"). The arbitration agreement is contained in Clause 26 read with Clause 35 (found at Pages 24 and 25 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.
2.
It is apparent from the record that the arbitration agreement was invoked by the Petitioner on March 11, 2025. 3.
The core objection on behalf of the Respondent to this Petition seeking reference of disputes and differences under an Agreement to arbitration may be summarized thus : a) The Petition is not filed with due authority; b) The Agreement has been signed by the Respondent but has not been signed by the Petitioner and, therefore, does not constitute a concluded contract signed by the parties; c) Even while signing the Agreement, the Respondent had raised the "Dissent Note" which would indicate that the clauses referred to therein were not entirely agreed on and are open for discussion;
d) The Agreement expired on September 30, 2021 in terms of clause 37 of the Agreement and there is nothing on record to prove that the agreement should be extended on the same terms; e) The invoices appended to the Petition made no reference to the Agreement;
f) The names in the Petition and the Agreement as well as invoices are used interchangeably and there is no proof of change of the names furnished;
g) The Agreement is inadequately stamped;
h) The arbitration clause provides for an unilateral appointment;
i) No ledger or statement of account had been filed. 4.
The aforesaid objections had been reduced to writing in an affidavit in reply dated August 11, 2025.
5.
Learned Advocate on behalf of the Respondent would highlight the aforesaid facets in the course of his submissions whereas Learned Advocate for the Petitioner contends that the Agreement has indeed been signed by the Respondent and inherently contains an annual renewal provision in Clause 25. He would submit that the activity covered by the subject matter of the Petition falls within the period of three years as sought in the Respondent's own Dissent Note. He would rely upon a judgement of the Supreme Court in Caravel Shipping Services 1 to contend that the signature on an instrument is not 1 Caravel Shipping Services (P) Ltd. v. Premier Sea Foods Exim (P) Ltd., (2019) 11 SCC 461Limited - (2019) 11 SCC 461
an absolute necessity for the arbitration agreement. What is necessary is that it should be contained in an instrument in writing. 6.
Having heard Learned Counsel for the parties, in my opinion, the objections raised by the Respondent fall in the realm of jurisdictional objections that can be covered within the scope of jurisdiction of the Arbitral Tribunal under Section 16 of the Act. However, on the face of it, it is apparent that the transactions in question do pertain to the period after September 30, 2021, and indeed fall within the scope of the extended period sought in the Dissent Note. That apart, the Agreement itself provided that the contract would be renewed on a yearly basis. The parties continued to transact beyond September 30, 2021, and therefore, whether the transactions fall within the ambit of the Agreement would present a mixed question of fact and law which would eminently be capable of being answered by the Learned Arbitral Tribunal after examining operational evidence of the transactions between the parties.
7.
The reliance on Caravel Shipping Services is quite relevant inasmuch as the Supreme Court has clearly held that even an unilaterally signed written instrument which may not be facially signed
by the counterparty, but is acted upon by the counterparty would constitute an Agreement in writing for purposes of the Arbitration Act. Paragraphs 7 and 8 of the said decision are relevant and are extracted below :
7. A perusal of the same shows that the respondent has expressly agreed to be bound by the arbitration clause despite the fact that it is a printed condition annexed to the Bill of Lading. Secondly, it must be remembered that the respondent has itself relied upon the Bill of Lading as part of its cause of action to recover the sum of Rs.26,53,593/- in the suit filed by it. The respondent, therefore, cannot blow hot and cold and argue that for the purpose of its suit, it will rely upon the Bill of Lading (though unsigned) but for the purpose of arbitration, the requirement of the Arbitration Act is that the arbitration clause should be signed.
8. In addition, we may indicate that the law in this behalf, in Jugal Kishore Rameshwardas vs. Mrs. Goolbai Hormusji, AIR 1955 SC 812, is that an arbitration agreement needs to be in writing though it need not be signed. The fact that the arbitration agreement shall be in writing is continued in the 1996 Act in Section 7(3) thereof. Section 7(4) only further adds that an
arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed. The only pre- requisite is that it be in writing, as has been pointed out in Section 7(3).
8.
In this view of the matter, prima facie, it is apparent that the parties have an arbitration agreement, the absence of a signature on the part of the Petitioner is, in any case, something that can be dealt with by the Petitioner by simply countersigning the instrument. Be that as it may, in view of the law declared by the Supreme Court, it is when the counterparty has not signed, the Courts are faced with having to determine whether a party asserting the denial has, indeed, been a party to the arbitration agreement. As regards the change of name, the statutory change of name as tendered across the bar, is taken on record. The current name of the Petitioner is indeed the new name of the party that had signed the agreement containing the arbitration clause. It is also evident that the invoices appended to the Petition fall within a narrow date range of June 24, 2022 and October 31, 2022. Whether these would relate to the very purchase orders that are sought to be relied on, is a matter of evidence and that can be examined by the
arbitral tribunal in the course of conducting the arbitral proceedings. 9.
As regards the other facets of what has been raised on behalf of the Respondent, the issues such as stamping, or the absence of a renewal of the contract, are all matters that fall squarely in the domain of the arbitral tribunal. It is also noteworthy that the "Dissent Note" filed the the Respondent deals with specific clauses in the contract and the arbitration clause, does not form subject matter of the Dissent Note. 10.
Therefore, it cannot be said that there was any difference of opinion on the whether the parties would submit their disputes for resolution exclusively by arbitration. Both Clause No. 35 as well as Clause No. 36 find no mention in the Dissent Note, which would then mean that the scope of the jurisdiction of this Court being restricted to examining the existence of an arbitration clause, no useful purpose would be served keeping this Petition pending any further. 11.
In these circumstances, leaving all other contentions on merits as well as jurisdiction open for consideration by the Learned Arbitral Tribunal, an arbitral tribunal is constituted in the following terms :
A] Mr. Kunal Bhanage, an advocate of this Court,
(kunal.bhanage@gmail.com) 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;
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 Arbitral Tribunal in relation to costs.
12.
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. 13.
The Petition is finally disposed of in the aforesaid terms. 14.
In view of the disposal of the proceedings, attendant Interim Applications, if any, also stand disposed of.
15.
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.]