Bombay High Court
MR. AMOL ANIL VARKHADEversusM/S ROYAL INFRA CORPORATION THR ITS PARTNERS.
- Decided
- Disposal
- Disposed Off
Holding
The later Memorandum of Understanding's selection of Pune as the seat supersedes the earlier Aurangabad venue, and the arbitration clause is binding, warranting the appointment of a sole arbitrator.
Summary
The petitioner filed an arbitration petition under Section 11 of the Arbitration and Conciliation Act, 1996 seeking appointment of an arbitrator for disputes arising out of three related agreements. The first agreement (Work Order) named Aurangabad as the arbitration venue, while a later Memorandum of Understanding named Pune, and the Escrow Agreement left the venue blank. The respondents objected that the original Aurangabad venue should control and that the arbitration clause was not binding because the parties could later choose mediation or arbitration. The court rejected both objections, holding that the later Memorandum of Understanding represents a firm revised choice of Pune as the seat and that the arbitration clause is a binding agreement to resolve disputes by arbitration or mediation. Consequently, the court appointed Justice (Retd.) Sadashiv S. Deshmukh as the sole arbitrator and issued procedural directions for the arbitration.
Issues considered
- The appropriate seat of arbitration when parties have multiple agreements with differing venue clauses
- Whether an arbitration clause that allows parties to later choose mediation or arbitration is a binding arbitration agreement
Legislation cited
- Arbitration and Conciliation Act, 1996 — s. 11, 11(8), 12(1)
Subjects
- arbitration
- seat of arbitration
- arbitration clause
- appointment of arbitrator
- Section 11
- mediation
- jurisdiction
- High Court
Judgment
73-arp-2-26 Final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION PETITION NO. 2 OF 2026
Amol Anil Varkhade …Petitioner
Versus
M/s. Royal Infra Corporation & Anr. …Respondents
Mr. Viraj Hake for the Petitioner.
Mr. Govind B. Solanke a/w Mr. Ajay Badode for the Respondents.
CORAM : SOMASEKHAR SUNDARESAN, J.
DATE : FEBRUARY 17, 2026
ORDER :
1. This Petition has been filed under Section 11 of the
Arbitration and Conciliation Act, 1996 ( “the Act”), seeking appointment
of an arbitrator in connection with disputes and differences between the
parties.
2. There are three agreements involved. The first is a Work
Order dated September 11, 2023, which contains an arbitration clause
with Aurangabad as the venue. On September 27, 2023, the parties
reduced to writing their relationship in a Memorandum of
Understanding, and also executed an Escrow Account Agreement. There
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is an arbitration clause in each of the subsequent instruments. In the
Escrow Agreement, the place of arbitration is left blank while in the
Memorandum of Understanding, the place of arbitration is depicted as
Pune. In the interest of brevity, the arbitration agreements are not being
extracted here. Suffice it to say that this matter falls within the
jurisdiction of this Court.
3. The Learned Advocate for the Respondents raises two-fold
objections. First that the original Work Order referred to Aurangabad,
and therefore, the dispute should go to Aurangabad. This objection is
not found acceptable inasmuch as the Memorandum of Understanding,
which is a subsequent document between the same parties on the same
subject matter, has positively elected for Pune as the venue of
arbitration. This may be treated as a firm revised choice by the parties.
4. The second objection on behalf of the Respondents is that the
text of the arbitration clause would indicate that the parties may, by
mutual agreement, opt for mediation or arbitration, and therefore, there
is one more stage of accepting or rejecting the arbitration agreement,
rendering the clause as not being a binding arbitration agreement. This,
to my mind, is not an acceptable submission. The parties evidently
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decided to go in for an alternate dispute resolution mechanism, the
option for subsequent choice is between mediation and arbitration.
5. Therefore, the agreement between the parties to agree later is
whether they would mediate or directly proceed to arbitration. The
invocation notice has been issued on November 4, 2025 and has not
been responded to till date. In these circumstances, with Pune as a seat
of arbitration, an Arbitral Tribunal is hereby appointed in the following
terms :-
A) Justice (Retd.) Mr. Sadashiv S. Deshmukh, a former
judge of the District 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 the Agreement referred to above;
Office Address:- 403, Jupiter, Gawand Baugh,
Building No. 9, Pokharan Road
No. 2, Upvan, Thane (West) -
400610.
Email ID: [email protected]
B) A copy of this Order will be communicated to the
Learned Sole Arbitrator by the Advocates for the
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Petitioner/Applicant within a period of one week from
the date of upload of this order. The
Petitioner/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 parties
within a period of two weeks from receipt of a copy of
this Order;
D) The parties shall appear before the Learned Sole
Arbitrator on such date and at such place as indicated,
to obtain appropriate directions with regard to
conduct of the arbitration including fixing a schedule
for pleadings, examination of witnesses, if any,
schedule of hearings etc. At such meeting, the parties
shall provide a valid and functional email address
along with mobile and landline numbers of the
respective Advocates of the parties to the Arbitral
Tribunal. Communications to such email addresses
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shall constitute valid service of correspondence in
connection with the arbitration;
E) All arbitral costs and fees of the Arbitral Tribunal shall
be borne by the parties equally in the first instance,
and shall be subject to any final Award that may be
passed by the Tribunal in relation to costs.
6. Needless to say, nothing contained in this order is an
expression of an opinion on merits of the matter or the relative strength
of the parties. All issues on merits are expressly kept open to be agitated
before the arbitral tribunal appointed hereby.
7. Reply affidavit has also been filed by the Respondents
depicting the aforesaid objections. The same is taken on record.
8. 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.
[ SOMASEKHAR SUNDARESAN, J.]
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