Sunil Sitaram Newalkar v. Vijay Sitaram Newalkar

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION 506- COMMERCIAL ARBITRATION PETITION NO. 711 OF 2025 WITH 920-COMMERCIAL ARBITRATION APPLICATION NO. 395 OF 2025 Digitally signed by SHRADDHA KAMLESH TALEKAR Date:

2025.11.03 17:39:38 +0530 SHRADDHA KAMLESH TALEKAR Sunil Sitaram Newalkar ... Petitioner/Applicant Vs.

Vijay Sitaram Newalkar & 3 Ors.

.. Respondents Mr. Prerak Choudhary a/w. Sunil Shetty, for Petitioner/Applicant. None for Respondents.

CORAM : SOMASEKHAR SUNDARESAN, J.

Date : September 16, 2025 Order :

1.

Commercial Arbitration Petition No. 711 of 2025 is a Petition under Section 9 of the Arbitration and Conciliation Act, 1996 ("the Act"). Commercial Arbitration Application No. 395 of 2025 is an Application filed under Section 11 of 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 January 15, 1992 ("Agreement"). The arbitration agreement is contained in Clause 16 (found at Pages 55-56 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 March 18, 2025, to which there is no reply from the Respondents. Despite service, the Respondents have not entered appearance. The service affidavits dated September 4, 2025 and September 15, 2025 are 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 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

refer the disputes and differences between the parties in connection with the aforesaid Agreement to arbitration by a Sole Arbitrator. 5.

Commercial Arbitration Petition No. 711 of 2025 ("Section 9 Petition") seeks various reliefs including access rights and appointment of the Court Receiver. Reply may be filed to this Petition by the Respondents but directly before the arbitral tribunal appointed hereby. Section 9 proceedings are converted into proceedings under Section 17 for due consideration by the arbitral tribunal. The learned arbitral tribunal is requested to convene at the earliest, preferably within a week of being approached to issue further directions on how to proceed further.

6.

In these circumstances, both this Application as well as the Section 9 Petition are hereby finally disposed of, in terms of the following order: A] Mr. Dushyant Purekar, a learned advocate of this Court (Email : dushyant@purekar.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 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 Petitioner 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 Arbitral 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.

In view of the disposal of the proceedings, attendant Interim Applications, if any, also stand disposed of. 9.

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.]