Bombay High Court
ICICI Home Finance Company LimitedversusKiran Brijendra Killawala
- Decided
- Disposal
- DISPOSED OFF
Holding
The mediation clause is not a mandatory pre‑condition, so the arbitration agreement is valid and the court may appoint a sole arbitrator under Section 11.
Summary
The applicant, ICICI Home Finance Company Ltd., invoked the arbitration clause in its facility agreements dated August 2024 by issuing a notice on 21 April 2025. The respondent objected, contending that a mediation clause in the agreements required the parties to undergo mediation before proceeding to arbitration. The Court examined Clause 15.14(b)(i) and held that the mediation provision is optional and not a mandatory condition precedent to arbitration. Consequently, the arbitration agreement was deemed valid and subsisting. The Court exercised its power under Section 11 of the Arbitration and Conciliation Act, 1996 and appointed Ms. Deepali A. Bagla as the sole arbitrator to adjudicate the disputes.
Issues considered
- Whether the mediation clause in the facility agreements constitutes a mandatory condition precedent to invoking the arbitration agreement
- Whether the arbitration agreement remains valid and enforceable despite the respondent’s objection
Legislation cited
- Arbitration and Conciliation Act, 1996 — s. 11, 11(8), 12(1)
Subjects
- Arbitration
- Mediation
- Arbitration agreement
- Section 11
- Sole arbitrator
- Condition precedent
- Indian arbitration law
Judgment
26-ARBAP-399-2026 with connected.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHABNOOR
Digitally signed
by SHABNOOR
ORDINARY ORIGINAL CIVIL JURISDICTION
AYUB PATHAN
AYUB Date:
PATHAN 2026.09.30
17:59:47 +0530
ARBITRATION APPLICATION NO.399 OF 2026
ICICI Home Finance Company Limited … Applicant
V/s.
Kiran Brijendra Killawala … Respondent
Mr. Ajay Deshmane i/b V. Deshpande & Co., for the
Applicant/Petitioner.
Mr. Abhijit Aher i/b Suyash N. Khose, for Respondent.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 30, 2026
P.C.:
1. The present Application has been preferred under Section 11
of the Arbitration and Conciliation Act, 1996 (“the Act”), seeking
appointment of a Sole Arbitrator for adjudication of the disputes
and differences stated to have arisen between the parties under the
Facility Agreements dated 14 August 2024 and 13 August 2024.
The arbitration agreements between the parties are contained in
Clause 15.14(b)(i) at page 65 of the Application, Clause 15.14(b)
(i) at page 106 of the Application, Clause 15.14(b)(i) at page 145
of the Application, and Clause 15.14(b)(i) at page 183 of the said
Agreements. In the interest of brevity, the said arbitration clauses
are not reproduced herein. Suffice it to observe that the present
Application falls within the jurisdiction of this Court.
2. The record indicates that the Applicant invoked the
arbitration agreement by issuing notices dated 21 April 2025.
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26-ARBAP-399-2026 with connected.doc
3. The only objection raised on behalf of the Opponent is with
regard to the existence of a mediation process contemplated under
the aforesaid Agreements. In this regard, reliance has been placed
upon Clause 15.14 and, in particular, Clause 15.14(b)(i) thereof.
4. Upon perusal of the aforesaid provisions, it appears that the
process of mediation is contemplated only upon the parties
agreeing to resort to such process, and that, upon such agreement,
the mediation process is to be conducted in accordance with the
applicable law and the applicable mediation rules.
5. In the opinion of this Court, the aforesaid provision does not
constitute an independent or mandatory agreement between the
parties requiring them to mandatorily undergo mediation as a
condition precedent to invocation of the arbitration agreement.
6. In the aforesaid circumstances, this Court is satisfied that
there exists a valid and subsisting arbitration agreement between
the parties and that the same has been duly invoked by the
Applicant. The disputes and differences arising out of or in
connection with the aforesaid Facility Agreements dated 14 August
2024 and 13 August 2024 are, therefore, required to be referred to
arbitration before a Sole Arbitrator.
7. In the aforesaid circumstances, the present Application under
Section 11 of the Act, is deserved to be disposed of in terms of the
following order:
A) Ms. Deepali A Bagla, an Advocate of this Court, is
hereby appointed as the Sole Arbitrator to adjudicate upon
the disputes and differences between the parties arising out
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of and in connection with the Agreement referred to above;
Office Address:- Sukhia Building, 2nd Floor, Cawasji Patel
Street, Fort, Mumbai 400001;
Email Id:- [email protected];
Mobile No. 9920378770.
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 today. 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 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 Applicant and a copy of the same shall be furnished
by the Advocates for the Applicant to the Advocates for
the Respondent;
D) 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
parties within a period of two weeks from receipt of a
copy of this Order;
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26-ARBAP-399-2026 with connected.doc
E) The parties shall appear before the Learned Sole
Arbitrator on such date and at such place as may be
indicated by the Learned Sole Arbitrator, for obtaining
appropriate directions with regard to the conduct of the
arbitral proceedings, including fixing the schedule for
filing of pleadings, examination of witnesses, if any, and
dates of hearing. At such meeting, the parties shall
furnish to the Arbitral Tribunal valid and functional
email addresses, together with the mobile and landline
telephone numbers of their respective Advocates.
Communications sent to the said email addresses shall
constitute valid service of correspondence in connection
with the arbitral proceedings.
F) All arbitral costs and fees of the arbitration and of
the Arbitral Tribunal shall be borne by the parties equally
in the first instance. The same shall, however, remain
subject to any final Award that may be passed by the
Arbitral Tribunal in relation to costs.
8. The Learned Sole Arbitrator shall be at liberty to adjudicate
upon the claims and counterclaims, if any, and to determine all
questions relating to merits, in accordance with law.
9. 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.
(AMIT BORKAR, J.)
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