Bombay High Court
Veena Govind MaluversusTushar Sudhir Kelakar
- Decided
- Disposal
- Disposed Off
Holding
The Section 11 Court may appoint an arbitrator once it is satisfied that a valid arbitration agreement exists, without delving into the merits of the dispute.
Summary
The petitioners, Veena Govind Malu and others, filed two arbitration petitions under Section 11 of the Arbitration and Conciliation Act, 1996, seeking the appointment of an arbitrator for disputes arising under three agreements dated August and September 2020. The petitioners invoked the arbitration clauses on July 28, 2025, and the respondents failed to appear despite service of notice. The Court examined whether a valid arbitration agreement existed and whether it could entertain the Section 11 application, relying on the principle that the Section 11 Court’s review is limited to the existence of a validly executed agreement. Citing the Interplay judgment and subsequent cases, the Court held that questions of substantive merit lie with the arbitral tribunal, not the court. Consequently, the Court appointed Justice (Retd.) Shalini Phansalkar Joshi as the sole arbitrator and issued procedural directions for the arbitration, while expressly reserving all merits for the tribunal.
Issues considered
- The Court’s jurisdiction to entertain a Section 11 application for appointment of an arbitrator.
- Whether the arbitration agreements dated August and September 2020 are validly executed and enforceable.
- The extent of the Section 11 Court’s review under Section 11(6A) of the Arbitration and Conciliation Act, 1996.
Legislation cited
- Arbitration and Conciliation Act, 1996 — s. 11, 11(6A), 11(8), 12(1), 16
Subjects
- Arbitration
- Section 11 appointment
- Arbitration agreement validity
- Arbitral tribunal
- Procedural directions
- Cost allocation
Judgment
5-arp-6-26 Final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION PETITION NO. 6 OF 2026
Veena Govind Malu & Ors. …Petitioners
Versus
Tushar Sudhir Kelakar & Ors. …Respondents
ARBITRATION PETITION NO. 8 OF 2026
Veena Govind Malu …Petitioner
Versus
Tushar Sudhir Kelakar & Ors. …Respondent
Mr. Amit Singh a/w Ashlesha Suryawanshi i/by Omkar Nevagi ,
for the Petitioner.
CORAM : SOMASEKHAR SUNDARESAN, J.
DATE : FEBRUARY 17, 2026
ORDER :
ARBITRATION PETITION NO. 6 OF 2026
1. Service affidavit is taken on record. Despite service, none
appears for the Respondents. Hence, matter is taken up for final
hearing.
2. This Petition has been filed under Section 11 of the
Arbitration and Conciliation Act, 1996 ( “the Act”), seeking appointment
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of an arbitrator in connection with disputes and differences that are said
to have arisen between the parties under agreements dated August 5,
2020 and August 22, 2020 (“Agreements”). The arbitration agreements
are contained in Clauses 20 and 4 (Found at Page Nos. 86 and 111 of the
Petition). In the interest of brevity, the arbitration agreement is not
being extracted here. Suffice it to say that this matter falls within the
jurisdiction of this Court.
3. It is apparent from the record that the arbitration agreement
was invoked by the Petitioner on July 28, 2025. A reply dated August
16, 2025 is filed to the said invocation.
ARBITRATION PETITION NO. 8 OF 2026
4. Service affidavit is taken on record. Despite service, none
appears for the respondents. Hence, matter is taken up for final hearing.
5. This Petition has been filed under Section 11 of Act, seeking
appointment of an arbitrator in connection with disputes and
differences that are said to have arisen between the parties under an
agreement dated September 2, 2020 (“Agreement”). The arbitration
agreement is contained in Clause 8 (Found at Page No.61 of the
Petition). In the interest of brevity, the arbitration agreement is not
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being extracted here. Suffice it to say that this matter falls within the
jurisdiction of this Court.
6. It is apparent from the record that the arbitration agreement
was invoked by the Petitioner on July 28, 2025. A Reply dated August
16, 2025 is filed to the said invocation.
7. Since the grievances in both proceedings are interconnected,
both the references are made to the same Arbitral Tribunal appointed
hereby.
8. The scope of review under Section 11 is explicitly set out in
Section 11(6A) of the Act. It is now trite law, with particular regard to
the decisions of a seven-judge bench in the Interplay Judgement1
followed by multiple others, including SBI General2 and Patel3 that the
Section 11 Court ought not to venture beyond examining the existence of
a validly existing arbitration agreement that has been formally executed.
Even questions of existential substance is a matter that falls squarely in
the domain of the arbitral tribunal, in view of Section 16 of the Act.
9. Being satisfied that an arbitration agreement is validly in
1 In Re: Interplay Between Arbitration Agreement under Arbitration and Conciliation
Act, 1996 and Stamp Act, 1899 – (2024) 6 SCC 1
2 SBI General Insurance Co. Ltd. v. Krish Spinning – 2024 SCC OnLine 1974
3 Ajay Madhusudan Patel Vs. Jyotindra S. Patel – 2024 SCC OnLine, 2597
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existence, and that arbitration has been duly invoked, it is in the fitness
of things to refer the disputes and differences between the parties in
connection with the aforesaid agreement to arbitration by a Sole
Arbitrator.
10. In these circumstances, this Petition under Section 11 is
hereby finally disposed of, in terms of the following order:
A) Justice (Retd.) Shalini Phansalkar Joshi, a former
Judge] 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 the Agreement referred to above;
Office Address:- Bungalow No. 12, Bhagya
Chintamani Nagar, Paud Road,
Kothrud, Pune – 411 038.
Email ID: [email protected]
B) A copy of this Order will be communicated to the
Learned Sole Arbitrator by the Advocates for the
Petitioner within a period of one week from the date
of upload of this order. The Petitioner shall provide
the contact and communication particulars of the
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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 Petitioner 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 Petition and a copy of the same shall
be furnished by the Advocates for the Petitioner to the
Respondent;
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
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Tribunal. Communications to such email addresses
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.
11. 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.
12. 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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