Bombay High Court
OURDESK AN INITIATIVE OF MATAJI RAMPIYARIBAI TRUSTversusATLYS INDIA PRIVATE LIMITED
- Decided
- Disposal
- DISPOSED OFF
Holding
A valid and binding arbitration agreement exists between the parties, warranting the appointment of a sole arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996.
Summary
The applicant, OURDESK (Mataji Rampiyaribai Trust), filed a Section 11 application seeking the appointment of a sole arbitrator under the Arbitration and Conciliation Act, 1996, alleging that the respondent, Atlys India Pvt. Ltd., had breached a Coworking Space Membership Agreement by failing to pay dues. The agreement contained Clause 8, titled “Arbitration and Class Action Waiver,” which stipulated that disputes would be resolved by arbitration and that any award would be final and enforceable in Mumbai courts. The respondent contested the existence of a binding arbitration agreement, arguing that the clause merely allowed for future arbitration and that the use of the word “Arbitration” was insufficient under Section 7 of the Act. The court examined the parties’ correspondence, noting that the respondent, while objecting to the applicant’s proposed arbitrator, nonetheless suggested an alternative arbitrator, thereby acknowledging the applicability of the arbitration clause. Relying on Supreme Court precedents (Powertech World Wide Ltd. v. Delvin International and distinguishing Alchemist Hospitals Ltd. v. ICT Health Technology Services), the court held that a valid arbitration agreement existed and ordered the appointment of Ms. Niyomi Jariwala as sole arbitrator. The order also set procedural directions for the arbitration proceeding.
Issues considered
- Whether Clause 8 of the Coworking Space Membership Agreement constitutes a valid arbitration agreement within the meaning of Section 7 of the Arbitration and Conciliation Act, 1996.
- Whether the respondent’s objection to the applicant’s choice of arbitrator defeats the existence of an arbitration agreement.
- Whether the court should entertain the Section 11 application and appoint a sole arbitrator.
Legislation cited
- Arbitration and Conciliation Act, 1996 — s. 11, 12, 7
- Indian Stamp Act, 1899
Subjects
- Arbitration agreement
- Section 11 application
- Appointment of arbitrator
- Coworking space membership
- Arbitration clause interpretation
- Confidential arbitration
- Award enforcement
Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION NO.207 OF 2026
‘OURDESK’, an initiative of
Mataji Rampiyaribai Trust .. Applicant
Vs.
Atlys India Private Limited .. Respondent
Mr. Aum Kini with Mr. Parth Kini, i/by Ms. Sapna Krishnappa, Advocates for
the Applicant.
Ms. Nishtha Gupta, i/by Mr. Kush M. Shah, Advocates for the Respondent.
CORAM : GAUTAM A. ANKHAD, J.
DATE : 27th August, 2026.
P.C. :
1. The present Section 11 Application is filed seeking appointment of a sole
arbitrator to adjudicate the disputes which have arisen between the parties
under the Coworking Space Membership Agreement dated 19 th October, 2023
(“Agreement”). For convenience, the dispute resolution clause contained at
page 36 of the paper-book is extracted and quoted:
“8. Arbitration and Class Action Waiver
a) Governing Law : The Agreement and the transactions
contemplated hereby shall be governed by and construed
under the law of the State of Maharashtra, India, and the
Republic of India without regard to conflicts of law’s
provisions thereof and without regard to the jurisdiction
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(State, region or country) or tax residence of the member
company.
b) Venue : Except that either party may seek equitable or
similar relief from any Court in the State of Maharashtra
and city of Mumbai for any dispute, controversy or claim
arising out of or in relation to this Agreement, or at law or
the breach, termination or invalidity of this Agreement.
c) Proceedings; Judgment : The proceedings shall be
confidential and in English. The Award rendered shall be
final and binding on both parties. Judgment or the Award
may be entered in any Court of the City of Mumbai within
the State of Maharashtra. In any action, suit or proceeding
to enforce rights under this Agreement, the prevailing
party be entitled to recover, in addition to any other relief
awarded, the prevailing parties reasonable attorneys’ fees
and other fees, costs and expenses of every kind in
connection with the action, suit or proceeding, any appeal
or petition for review, the collection of any Award or the
enforcement of any order, as determined by the
Arbitrator(s) or Court, as applicable. This Agreement
shall be interpreted and construed in the English
language, which is the language of the official test of this
Agreement.”
2. Mr. Kini, learned counsel appearing for the Applicant, submits that the
Agreement is executed by the Respondent and signed by its representative.
Disputes arose between the parties on account of the Respondent’s failure to
pay charges due under the Agreement. On 23 rd June, 2025, the Applicant issued
a legal notice calling upon the Respondent to pay the outstanding charges. In
its response dated 17th July, 2025, the Respondent admitted the existence of the
Agreement, but contended that no amount was due and payable. Therefore the
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Applicant, by Advocate’s notice dated 24th July, 2025, invoked arbitration and
called upon the Respondent to concur with the name of the Arbitrator
suggested by the Applicant. In its response dated 1 st September, 2025, the
Respondent suggested an alternative name for appointment as Arbitrator.
3. Mr. Kini submits that clause 8 of the Agreement read with
correspondence, demonstrates that the parties have agreed to resolve their
disputes through arbitration. He submits that a valid and binding arbitration
agreement exists between the parties and that the present Application under
Section 11 deserves to be allowed. Reliance is placed on the judgment of the
Hon’ble Supreme Court in Powertech World Wide Limited Vs. Delvin
International General Trading LLC1 in support of the above submissions.
4. On the other hand, Ms. Gupta, learned counsel appearing for the
Respondent, submits that a plain reading of clause 8 of the Agreement does not
disclose the existence of an arbitration agreement. The clause also refers to
“any Court of the City of Mumbai” and only contemplates the possibility of the
parties agreeing to arbitration at a future stage. Mere use of the expression
“Arbitration” in the heading of the clause cannot, by itself, constitute an
arbitration agreement within the meaning of Section 7 of the Arbitration and
Conciliation Act, 1996.
1 (2012) 1 SCC 361
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5. Ms. Gupta further submits that the Respondent’s suggestion of an
alternative name for an Arbitrator cannot cure the fundamental defect, since
there can be no appointment of an Arbitrator in the absence of a valid
arbitration agreement. She relies on the upon judgment of the Hon’ble Supreme
Court in Alchemist Hospitals Ltd. Vs. ICT Health Technology Services India
Pvt. Ltd.2 and submits that the Application ought to be dismissed.
6. I have considered the submissions and perused the record. In my view,
the objection raised by the Respondent proceeds on an incorrect reading of
clause 8 of the Agreement and does not take into account the correspondence
between the parties. At this stage, this Court is only concerned with
determining whether an arbitration agreement exists between the parties. The
decision of 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 SBI General Insurance Company Vs. Krish
Spinning, (2025) 3 SCC (Civ) 567 reinforces the limited nature of the enquiry
at the Section 11 stage to the examination of the existence of an arbitration
agreement.
7. In the present case, the Agreement is admittedly executed by the both
2 2025 SCC OnLine SC 2354
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parties. The Applicant invoked arbitration by its notice dated 24 th July, 2025. In
its response of 1st September 2025, the Respondent did not deny the existence
of the arbitration clause, nor did it contend that there was no agreement to
arbitrate. On the contrary, the Respondent suggested an alternative proposed
Arbitrator. The relevant portion reads as under:
“5. Our client does not accept the unilateral appointment of Mr. Rishi
Jain as Arbitrator. It is pertinent to highlight that the Hon’ble
Supreme Court of India, in a catena of judgments, has consistently
held that arbitration proceedings must adhere to principles of
fairness, neutrality and equal opportunity between the parties. Any
unilateral or on-sided appointment procedure stands in violation of
such principles and cannot be sustained, even if contemplated in the
Agreement.
6. Accordingly, our client reiterates its non-acceptance of the proposed
appointment of Mr. Rishi Jain. However, in the spirit of resolving the
dispute and in terms of Clause 8 of the Agreement, our client proposes
the name of Mr. Anurag Garb, Advocate (D-1168-F/2003), as a sole
independent Arbitrator to adjudicate the disputes between the
parties.”
8. This demonstrates that the Respondent proceeded on the basis that the
disputes can be adjudicated by an Arbitrator. The disagreement is only on the
name of the arbitrator. This is wholly inconsistent with the stand now sought to
be taken that no arbitration agreement exists. The Respondent cannot approbate
and reprobate in this manner. Hence the reliance by the Petitioner on the
judgment of the Hon’ble Supreme Court in Powertech World Wide Limited
(supra) is well placed, wherein the Hon’ble Supreme Court held as under:
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“27. Vide their letter dated 30-3-2008, the respondent had raised certain
claims upon the petitioner and had also repelled the threat extended
by the petitioner to take steps before ECGC. This notice had been
responded to by the petitioner vide letter dated 4-4-2008 wherein it
had raised its claims demanding payment of money within seven days
and also stated that any default thereto would constrain it to take
legal action. Finally, vide letter dated 30-5-2008, the petitioner had
invoked arbitration clause between the parties and, in fact, had even
nominated an arbitrator calling upon the respondent to concur to the
said appointment.
28. Replying to this letter vide letter dated 27-6-2008, the respondent had
neither denied the existence nor the binding nature of the arbitration
clause. On the contrary, it had requested the petitioner not to take
any legal action for appointment of an arbitrator, as they wanted to
suggest some other name as an arbitrator, that too, subject to the
consent of the petitioner. This letter conclusively proves that the
respondent had admitted the existence of an arbitration agreement
between the parties and consented to the idea of appointing a
common/sole arbitrator to determine the disputes between the
parties. However, thereafter there had been complete silence from its
side, necessitating the filing of the present petition under Section
11(6) of the Act by the petitioner.
29. Thus, any ambiguity in the arbitration clause contained in the
purchase contract stood extinct by the correspondence between the
parties and the consensus ad idem in relation to the existence of an
arbitration agreement and settlement of disputes through arbitration
became crystal clear. The parties obviously had committed to settle
their disputes by arbitration, which they could not settle, as claims
and counterclaims had been raised in the correspondence exchanged
between them. In view of the above, even the precondition for
invocation of an arbitration agreement stands satisfied.”
9. The reliance placed by Ms. Gupta on Alchemist Hospitals Ltd. (supra) is
misplaced. In Alchemist Hospitals Ltd., the dispute resolution clause did not
evince a clear or present intention of the parties to submit their disputes to
arbitration. The reference to arbitration was, in substance, only a possibility as
the penultimate clause therein prescribed civil remedies if arbitration did not
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resolve disputes. The Hon’ble Supreme Court suggested an attempt at amicable
resolution and held that the clause did not constitute a valid arbitration
agreement. In the present case, the parties have executed an Agreement
containing a clause titled “Arbitration”. Clause 8(c) provides that the “The
Award rendered shall be final and binding on both parties.” The said clause
recognises enforcement of the “Award” and recovery of costs as determined by
the “Arbitrator(s)”. These are not provisions merely contemplating a future
possibility of arbitration. This coupled with Respondent’s consent and
suggestion of a name of an arbitrator shows that the Respondent understood
and accepted that the disputes were capable of being referred to arbitration.
10. I am satisfied that a valid and binding arbitration agreement exists
between the parties and that the Applicant has validly invoked the same by its
notice dated 24th July, 2025. The Respondent has failed to concur in the
appointment of the Arbitrator within the prescribed period. Hence, this
Application is allowed in terms of the following order:
[A]. Ms. Niyomi Jariwala, learned Advocate of this Court is
appointed as the sole Arbitrator to adjudicate upon the
disputes and differences between the parties arising out of
and in connection with Coworking Space Membership
Agreement referred to above. The contact details of
Ms. Niyomi Jariwala, the sole Arbitrator, are as under:
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Office Address : Chambers of Adv. Aditya N. Mehta,
4th Floor, Techno Heritage Building,
76 Nagindas Master Road, Fort,
Mumbai – 400 001.
Mobile Number : 8976401402
E-mail ID : [email protected]
[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. 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 Arbitrator shall 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 retain the said
Statement on the file of this Arbitration Application and a
copy of the same shall be furnished by the Advocate for
the Applicant to the Respondent;
[D]. The parties shall appear before the learned Arbitrator on
such date either on V.C. mode or at such place as indicated
to obtain appropriate directions with regard to conduct of
the arbitration including fixing schedule for pleadings,
examination of witnesses, schedule of hearings etc.
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[E]. The fees of the learned Arbitrator shall be as per the Fourth
Schedule of the Act read with the Bombay High Court (Fee
Payable to Arbitrators) Rules, 2018.
[F]. All issues, claims and counterclaims are kept open to be
agitated before the Tribunal.
[G]. The arbitration shall be held at Mumbai.
[ GAUTAM A. ANKHAD, J. ]
Digitally
signed by 9/9
SNEHA SNEHA
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DIXIT 2026.08.28
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