Bombay High Court
Paresh Construction and Foundation Pvt LtdversusPatel Engieering Ltd
- Decided
- Disposal
- DISPOSED OFF
Holding
The court affirmed the existence and invocation of the arbitration agreement and ordered the appointment of a sole arbitrator, declining to decide the substantive payment dispute.
Summary
The Bombay High Court entertained an application under Section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of a sole arbitrator. Paresh Construction, a sub‑contractor, claimed that Patel Engineering had failed to pay amounts due under their subcontract agreement, which contains an arbitration clause. Patel Engineering did not dispute the existence of the arbitration agreement but argued that no liability existed because its own client, Mazgaon Dock Ltd., had not paid it. The Court held that its role is limited to determining the existence and invocation of the arbitration agreement, not the merits of the payment dispute. Accordingly, the Court appointed Ms. Apurva Gupte as the sole arbitrator and issued procedural directions for the arbitration to proceed in Mumbai.
Issues considered
- Whether the court should entertain the application for appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996.
- Whether the existence and invocation of the arbitration agreement between the parties is established.
- Whether the court can adjudicate the substantive payment dispute between the parties.
Legislation cited
- Arbitration and Conciliation Act, 1996 — s. 11, 11(8), 12(1)
Subjects
- Arbitration
- Section 11
- Arbitration agreement
- Appointment of arbitrator
- Construction contract
- Payment dispute
- Sub‑contractor
Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION NO.392 OF 2026
Paresh Construction and Foundation Pvt. Ltd. .. Applicant
Vs.
Patel Engineering Ltd. .. Respondent
Mr. Anirudh Bhalwal with Mr. Pritesh H. Bodekar, Advocates, i/by Vyas &
Bhalwal, for the Applicant.
Mr. Ravitej Chilumuri with Ms. Antara Kalambe and Ms. Sanya Gandhi,
Advocates, i/by Khaitan & Co., for the Respondent.
CORAM : GAUTAM A. ANKHAD, J.
DATE : 8th September, 2026.
P.C. :
1. This Application seeks appointment of a sole Arbitrator under Section 11
of the Arbitration and Conciliation Act, 1996 (“the Act”). The Respondent was
engaged by Mazgaon Dock Limited (“MDL”) for carrying out certain civil,
electrical and mechanical works.
2. The Applicant is a sub-contractor of the Respondent under the
Agreement annexed at Exhibit-A to the Application (“Agreement”). It is the
Applicant’s case that the Respondent failed to make payment of the amounts
claimed under the Agreement. Correspondence in this
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regard was exchanged between the parties. Clause 23 of the Agreement
contains the dispute resolution mechanism and provides for arbitration of
disputes between the parties. As the payments were not forthcoming, the
Applicant, through its Advocate’s notice dated 4th April, 2025, invoked the
arbitration agreement and called upon the Respondent to concur in the
appointment of an Arbitrator. The Respondent has not replied to the said notice
nor disputed the arbitration agreement.
3. Mr. Chilumuri, learned counsel appearing for the Respondent, fairly
submits that there is an arbitration agreement between the parties and does not
dispute the invocation of the same by the Applicant. He, however, submits that
the Respondent has several contentions including that monies have to be paid
by MDL to the Respondent and as a result, no amount is due and payable by
the Respondent to the Applicant.
4. Be that as it may, it is now well 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 a referral Court is only required
to examine the existence of an arbitration agreement and its invocation by the
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Applicant. Both these aspects are admitted in the present case. Whether any
amount is in fact due and payable, the quantum of the Applicant’s claim, and
the various defences sought to be raised by the Respondent are matters falling
within the domain of the arbitral tribunal and cannot be adjudicated upon in the
present proceedings. Hence, the Arbitration Application no. 392 of 2026 is
allowed in the following terms:-
[A]. Ms. Apurva Gupte, learned 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 Agreement referred to above. The
contact details the sole Arbitrator are as under:
Office Address : 521, 5th Floor, Commerce House,
Nagindas Master Road, Kala Ghoda,
Mumbai – 400 001.
Mobile Number : 98207 12185
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;
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[C]. The learned Arbitrator is 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 retain the said
Statement on the file of this Application and a copy of the
same shall be furnished by the Advocate for the Applicant
to the Respondents;
[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.
[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
SNEHA 4/4
SNEHA ABHAY
ABHAY DIXIT 13-ARBAP-392-2026.doc Dixit
DIXIT Date:
2026.09.08
13:52:17
+0530
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