Bjn Hospitality Pvt. Ltd. vs Vamona Developers Pvt. Ltd.

The Applicant has filed this Application under Section 11(6) of the Arbitration and Conciliation Act, 1996 against Respondent nos. 1 and 2 in respect of disputes that have arisen under the Agreements for sale dated 5^th November 2012 and 4^th September 2013 (“Agreements”) in respect of certain units purchased by the Applicant in “East Court – Phoenix Marketcity”, Viman Nagar, Pune.

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Mr. Raheja, learned Counsel appearing for the Applicant, submits that without prejudice to the rights of the Applicant, this application is restricted to the appointment of Arbitrator qua Respondent no.1 and as per the judgment of the Hon’ble Supreme Court in ASF Buildtech Pvt. Ltd. v/s. Shapoorji Pallonji & Co. Pvt. Ltd. (2025) 9 SCC 76, the Applicant shall make an application before

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the learned Arbitrator for impleading Respondent no.2 as a party to the arbitration. According to Mr. Raheja, Respondent no.2 is a veritable party and that issue can be left open to be adjudicated by the arbitral tribunal.

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I have perused the record and I find that the arbitration contract is at Clause 62 of the aforesaid Agreements. Arbitration under both the Agreements was invoked on 18^th March 2024 by the Applicant through its Advocate's notice. The Respondents, by their Advocate's letter dated 7^th May 2024 have replied to the said notice on its merits, but have not denied the existence of the arbitration clause in the said Agreements. For the sake of convenience, the arbitration clause is quoted :

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“PROVIDED AND ALWAYS that if any dispute, difference or question at any time hereafter arises between the parties hereto or their respective representatives in respect of the construction of these presents or concerning anything herein contained or arising out of the premises or as to the rights, liabilities or the duties of the said parties hereunder, the same shall be referred to arbitration of two persons, one to be appointed by each party. The arbitrators shall appoint an Umpire before entering upon the reference. The provisions of the Arbitration & Conciliation Act, 1996 shall apply to such reference.”

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It is settled law as held by the Hon’ble Supreme Court in Interplay between Arbitration Agreements under Arbitration and Conciliation Act, 1996 and Stamp Act, 1899, in Re (2024) 6 SCC 1 and followed in subsequent judgment in the case of SBI General Insurance Company Vs. Krish Spinning, (2025) 3 SCC (Civ) 567 that the Section 11 Court ought not to venture beyond examining

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the existence of an arbitration agreement. This agreement exists and arbitration has been invoked in the present case.

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I am informed that Mr. Karl Shroff, learned Advocate, has been nominated as Arbitrator of this Court by the Applicant. As the Respondents have failed to appoint an Arbitrator,

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[A] Mr. Shanay Shah, a learned Advocate, is nominated as an Arbitrator on behalf of Respondent no.1. Both the learned Arbitrators shall appoint the Presiding Arbitrator. The contact details of Mr. Shah, are “Office No.17-A, 4^th Floor, Surya Mahal, Burjorji Bharucha Marg, Fort, Mumbai – 23. (E-mail: [email protected]).

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[B] A copy of this order will be communicated to the learned Arbitrator by the Advocate for the Applicant within a period of one week from the date on which this order is uploaded on the website of this Court.

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[C] The learned Arbitrators are requested to forward the statutory Statement of Disclosure under Section 11(8) read with Section 12(1) of the Act to the Advocate for the Applicant so as to enable them to file the same in the Registry of this Court. The Registry of this Court shall

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retain the said Statement on the file of this Arbitration

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Application and a copy of the same shall be furnished by the Advocate for the Applicant to the Respondents.

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[D] The Tribunal shall endeavour to hold preliminary meeting for directions within two weeks of this order.

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[E] The fees of the Arbitral Tribunal shall be as per the Fourth Schedule of the Act read with the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018.

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