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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

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. ]




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DIXIT   2026.08.28
        10:53:45
        +0530


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