Ashutosh Enterprises Proprietor Shri Sandeep Shukla vs Municipal Corporation of Greater Mumbai

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 13, 2019 ( “Agreement” ). The arbitration agreement is contained in Clause T (found at Page No.44 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.

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Affidavit in reply filed by the Respondent is taken on record. Invocation notice dated March 20, 2024 was issued to the Respondent, to which there is no response. Learned Counsel for the Respondent submits that in fact, the matter can be resolved without the need to proceed to arbitration. The Applicant owes some amounts to the Respondent -

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909-ARBAP-108-2024.doc

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Corporation . If these are clarified, according to her there would be no need to even commence arbitration. In these circumstances, this order is given deferred effect of six weeks from today. The parties may engage and resolve the disputes. Needless to say, the parties need not approach the arbitrator appointed hereby if they settle the disputes in the aforesaid period of six weeks.

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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.

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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 13, 2019 to arbitration by a Sole Arbitrator.

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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

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909-ARBAP-108-2024.doc

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Consequently, this Application is finally disposed of in the following terms:-

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A] Mr. Jimmy Avasia, 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;

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Address : Flat No.19, 3^rd Floor, Keval Mahal, Marine Drive, Mumbai – 400 020

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Email ID: [email protected]

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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;

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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;

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D] The parties shall appear before the Learned Sole

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909-ARBAP-108-2024.doc

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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;

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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.

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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.

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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.

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[SOMASEKHAR SUNDARESAN, J.]

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Ashutosh Enterprises Proprietor Shri Sandeep Shukla v. Municipal Corporation of Greater Mumbai

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Ashutosh Enterprises Proprietor Shri Sandeep Shukla v. Municipal Corporation of Greater Mumbai

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