Anex Realty Services Private LimitedversusOrnate Infra Holding Private Limited

                                                                   41-CARAP-294-26-J.doc



                                                                              Sayali


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             ORDINARY ORIGINAL CIVIL JURISDICTION
                                 IN ITS COMMERCIAL DIVISION

                        COMM. ARBITRATION APPLICATION NO. 294 OF 2026

                   Anex Realty Services Pvt Ltd (Formerly
SAYALI
DEEPAK             Trespect India Pvt Ltd)                    … Applicant
UPASANI
                               V/s.
Digitally signed
by SAYALI
DEEPAK
                   Ornate Infra Holding Pvt Ltd               … Respondents
UPASANI
Date: 2026.08.21
12:12:51 +0530

                   Mr. Saurabh Bachhawat with Kaushik Puranik, for
                   Applicant.
                   Mr. Abhijit Singh, for Respondent.

                                        CORAM               : AMIT BORKAR, J.

                                        RESERVED ON         : AUGUST 20, 2026

                                        PRONOUNCED ON : AUGUST 21, 2026

                   JUDGMENT:
                   1.    The present application has been filed under Section 11(5)
                   of the Arbitration and Conciliation Act, 1996, as amended,
                   seeking appointment of a Sole Arbitrator for deciding the
                   disputes between the Applicant and the Respondent. According
                   to the Applicant, the parties could not mutually agree on the
                   appointment of a Sole Arbitrator within 30 days from the
                   Arbitration Notice dated 28 March 2025. The said notice was
                   issued by the Applicant under Clause 12 of the Marketing
                   Services Agreement dated 25 December 2019.




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2.    The facts giving rise to the present application may be
briefly stated as follows. On 25 December 2019, the Applicant
and the Respondent entered into a Marketing Services
Agreement, hereinafter referred to as “the Agreement”, for
providing real estate brokerage services. Thereafter, on 6
December 2024, the Applicant issued a Legal Notice, referred to
as the “1st Legal Notice”, calling upon the Respondent to
acknowledge and pay the aggregate outstanding dues of INR
69,01,570/-, together with penalty interest. The Respondent
replied to the said notice on 15 February 2025 and denied and
disputed all the claims made by the Applicant. Thereafter, on 28
March 2025, the Applicant, through its Advocate, issued a
Notice invoking arbitration, referred to as the “Arbitration
Notice”, and proposed Sh. Shipan Gaonkar, Advocate, as the
Sole Arbitrator. On 7 April 2025, the Respondent, through its
Advocate, replied to the Arbitration Notice. The Respondent
denied the claim made by the Applicant, raised a counterclaim
of INR 4,60,600/-, and proposed Mr. I.K. Tripathi, Advocate, as
the Sole Arbitrator.

3.    Mr. Saurabh Bachhawat, learned Advocate appearing for
the Applicant, invited my attention to the Marketing Services
Agreement dated 25 December 2019 and submitted that the said
Agreement contains an arbitration clause and bears the
signature of the Opponent. He submitted that, in reply to the
notice issued under Section 21 of the Arbitration and
Conciliation Act, the Opponent himself relied upon Clause 12 of



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the Marketing Services Agreement and nominated an Advocate
of his choice as Arbitrator. The Opponent had called upon the
Applicant to give consent for appointment of the said Arbitrator.
According to the learned Advocate, having himself acted upon
Clause 12 and nominated an Arbitrator, the Opponent cannot
now dispute the existence of an arbitration agreement between
the Applicant and the Opponent.

4.   On the other hand, Mr. Abhijit Singh, learned Advocate
appearing for the Opponent, invited my attention to Exhibit C to
the application and submitted that all the invoices relied upon
by the Applicant have been raised against a different company,
namely, Ornate Buildcon Developers. He submitted that the
Opponent is Ornate Infra Holding (P) Ltd. According to the
learned Advocate, there is no contractual relationship between
the company in whose name the invoices have been issued and
the Opponent. He, therefore, submitted that the present
application under Section 11 deserves to be dismissed.

REASONS AND ANALYSIS:

5.   I have considered the submissions made by the learned
Advocates appearing for both sides. I have gone through the
Marketing Services Agreement dated 25 December 2019, the
Arbitration Notice dated 28 March 2025, the reply given by the
Opponent on 7 April 2025 and the other documents placed on
record. The dispute which is now required to be considered is in
a limited area. The Applicant relies upon the arbitration clause
contained in the Marketing Services Agreement and seeks


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appointment of an Arbitrator. The Opponent, however, says that
the invoices relied upon by the Applicant are issued in the name
of another company, namely Ornate Buildcon Developers,
whereas the Opponent before this Court is Ornate Infra Holding
(P) Ltd. According to the Opponent, therefore, there is no privity
of contract and, for that reason, the dispute cannot be referred
to arbitration.

6.    Before considering this objection, it is necessary to keep in
mind the limited scope of jurisdiction exercised by this Court at
the stage of Section 11 of the Arbitration and Conciliation Act,
1996. The extent to which the Court can examine the matter at
this stage has been explained by the Supreme Court in Ajay
Madhusudan Patel v. Jyotrindra S. Patel, (2025) 2 SCC 147 . The
Supreme Court has considered the development of law on this
issue and has summarised the legal position in paragraph 76.

7.    In paragraph 76.1, the Supreme Court noticed that, under
the earlier decisions in SBP & Co. and Boghara Polyfab, the
scope of inquiry under Section 11 was much wider. The Court
could consider, among other things, whether there was an
arbitration agreement and whether the person applying under
Section 11 was a party to such agreement. However, paragraph
76.2 records the change brought about by insertion of Section
11(6-A) through the Amendment of 2015. The Supreme Court
observed that, after this amendment, the examination by the
Court has to be confined to the “existence” of an arbitration
agreement.



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8.     The position was thereafter explained in clear words in
paragraph 76.3 while referring to Duro Felguera. The Supreme
Court has observed as follows:

       “76.3. Duro Felguera [Duro Felguera, S.A. v. Gangavaram
       Port Ltd., (2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764] , in
       clear terms, clarified the effect of the change brought in by
       Section 11(6-A) and stated that all that the courts need to
       see is whether an arbitration agreement exists — nothing
       more, nothing less.”
9.     Thus, at this stage, the Court is not expected to conduct a
trial for deciding every dispute which one party may raise
against the other. The Court has to see whether the material
before it shows that an arbitration agreement exists. This does
not mean that the Court has to ignore the material even when it
shows that there is no arbitration agreement at all. But where
the objection requires examination of documents, facts,
surrounding circumstances or evidence, the Court has to be
careful that the proceeding under Section 11 does not become a
full trial.

10.    The same principle becomes more clear from paragraph
76.4 of Ajay Madhusudan Patel, where the Supreme Court,
while referring to Vidya Drolia, has stated:

       “76.4. Vidya Drolia [Vidya Drolia v. Durga Trading Corpn.,
       (2021) 2 SCC 1 : (2021) 1 SCC (Civ) 549] endorsed the
       prima facie test in examining the existence and validity of
       an arbitration agreement both under Sections 8 and 11,
       respectively. However, it was clarified that in cases of
       debatable and disputable facts and reasonably good



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      arguable case, etc. the Court may refer the parties to
      arbitration since the Arbitral Tribunal has the authority to
      decide disputes including the question of jurisdiction.”
11.   The Supreme Court has observed in the same paragraph
that complicated questions about whether particular persons are
bound by an arbitration agreement may involve disputed facts,
and such questions can be better left for consideration by the
Arbitral Tribunal. Therefore, where there is a arguable dispute
about the relationship between the parties, or whether a
particular party is bound by the arbitration agreement, it may
not always be necessary for the referral Court to give a final
finding on that issue. This is more so when deciding such
question would require examination of evidence.

12.   The law was explained in paragraph 76.5 by referring to
Interplay, In re. The Supreme Court held that the examination
under Section 11 should be confined to the “existence of the
arbitration agreement” under Section 7 of the 1996 Act. The
question of validity is confined to formal validity, such as
whether the agreement is in writing. The Supreme Court then
stated:

      “Therefore, substantive objections pertaining to existence
      and validity on the basis of evidence must be left to the
      Arbitral Tribunal since it can ‘rule’ on its own jurisdiction.”
13.   The importance of not making a inquiry at this stage has
been emphasised in paragraph 76.6. The Supreme Court has
observed:




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      “76.6. Krish Spg. [SBI General Insurance Co. Ltd. v. Krish
      Spg., (2024) 12 SCC 1 : 2024 SCC OnLine SC 1754]
      cautioned that the courts delving into the domain of the
      Arbitral Tribunal at the Section 11 stage run the risk of
      leaving the claimant remediless if the Section 11
      application is rejected., it was stated that a examination by
      the courts at the Section 11 stage would be
      counterproductive to the objective of expeditious disposal
      of Section 11 application and simplification of pleadings at
      that stage.”
14.   Finally, paragraph 76.7 of Ajay Madhusudan Patel is
relevant. While considering the question of bringing non-
signatories into arbitration proceedings, the Supreme Court
observed that even though the referral Court may have to prima
facie consider whether a person is a party to the arbitration
agreement, complicated questions in that respect may properly
be decided by the Arbitral Tribunal. The Supreme Court
recognised that the question as to who are the parties to an
arbitration agreement goes to the jurisdiction of the Arbitral
Tribunal and such issue can be decided by it under Section 16 of
the Act.

15.   Keeping these principles in mind, the submission of the
Applicant is now required to be considered. The Applicant relies
upon the Marketing Services Agreement dated 25 December
2019. According to the Applicant, Clause 12 of the Agreement
provides for resolution of disputes through arbitration. The
Applicant says that the Agreement bears the signature of the
Opponent. At this stage, this is a material circumstance. The case



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of the Applicant is therefore not based only upon an oral
statement that there was some understanding between the
parties. The Applicant relies upon a written Agreement which
contains an arbitration clause. There is one more circumstance
which requires consideration. The Applicant has pointed out that
after the Arbitration Notice was issued under Section 21 of the
Act, the Opponent gave a reply to that notice. According to the
Applicant, in that reply, the Opponent himself invoked Clause 12
of the Marketing Services Agreement and nominated an
Advocate of his choice as an Arbitrator. The Opponent called
upon the Applicant to give consent for appointment of the said
Arbitrator.

16.   This conduct, at least at the prima facie stage, has some
importance. If the Opponent himself relied upon Clause 12 of
the same Agreement which is now relied upon by the Applicant
for seeking appointment of an Arbitrator, it becomes difficult, at
this limited stage, to accept the contention that there was no
arbitration agreement at all. The reply to the Arbitration Notice,
as pointed out by the Applicant, does not appear to be only a
denial of the existence of the arbitration clause. On the contrary,
the Opponent is stated to have nominated an Arbitrator of his
choice, while disputing the monetary claim of the Applicant and
raising a counterclaim of INR 4,60,600/-. The fact that the
Opponent raised a counterclaim is a relevant circumstance.
Merely raising a counterclaim may not establish every question
regarding the contractual relationship between the parties. It



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cannot be said that because a counterclaim is raised, all
objections concerning jurisdiction automatically disappear.
However, the fact that the Opponent is stated to have raised a
counterclaim and nominated an Arbitrator by referring to Clause
12 prima facie shows that the Opponent proceeded on the basis
that disputes between the parties could be referred to
arbitration.

17.    The submission of the Applicant that the Opponent is
therefore prevented from disputing the arbitration agreement
has, however, to be understood in its proper manner. At this
stage, it may not be necessary to give a final finding that every
possible objection of the Opponent is barred. Such a finding may
require examination of the exact contents of the correspondence
and other facts. But the conduct of the Opponent is relevant for
deciding the limited question before this Court. On the material
presently available, such conduct supports the prima facie case
of    the   Applicant   regarding       existence   of   an    arbitration
agreement.

18.    I now turn to the main objection raised on behalf of the
Opponent. Mr. Singh submitted that all the invoices relied upon
by the Applicant are raised against Ornate Buildcon Developers,
whereas the Opponent before this Court is Ornate Infra Holding
(P) Ltd. According to him, these are two different companies.
On this basis, it is contended that there is no privity of contract
between the Opponent and the company in whose name the
invoices are issued. It is therefore submitted that the present



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application must fail.

19.   An arbitration agreement binds the persons who are
parties to it, subject to recognised legal principles applicable in a
particular case. Therefore, if the material and beyond doubt
showed that the Opponent had no connection with the
Agreement and that the Applicant was trying to enforce the
arbitration clause against an entirely different person, such
circumstance would require consideration. However, the present
objection cannot be decided only by looking at the names
mentioned in the invoices. The dispute between the parties is
not limited to the question as to whose name appears on the
invoices. The Applicant relies upon the Marketing Services
Agreement dated 25 December 2019 and the arbitration clause
contained in it. The Applicant relies upon the later reply given
by the Opponent to the Arbitration Notice. According to the
Applicant, the Opponent himself invoked Clause 12 and
nominated an Arbitrator. All these circumstances have to be
considered together.

20.   The mere fact that the invoices may have been issued in
the name of Ornate Buildcon Developers does not without
examination, conclusively show that Ornate Infra Holding (P)
Ltd. is unconnected with the Agreement relied upon by the
Applicant. There may be some explanation about the manner in
which the invoices were raised. There may be a dispute as to for
whom the services were rendered, who was liable to make
payment and what was the connection between the Agreement



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and the invoices. These questions may require examination of
the Agreement, correspondence, invoices and other evidence.

21.   Therefore, at the stage of Section 11, it is not possible to
decide the objection of the Opponent merely on the basis of the
names appearing on the invoices. If such issue is decided now,
this Court would have to make a factual inquiry into the whole
commercial relationship between the parties. Such inquiry
would go much beyond the limited examination contemplated at
the stage of referring the dispute to arbitration.

22.   The present case, therefore, appears to be one where the
material raises an arguable question regarding the exact
relationship between the parties and their respective obligations
under the Agreement. The Supreme Court has observed in
paragraph 76.4 of Ajay Madhusudan Patel that “in cases of
debatable and disputable facts and reasonably good arguable
case” the Court may refer the parties to arbitration since the
Arbitral Tribunal has authority to decide disputes including the
question of jurisdiction.

23.   The objection raised by the Opponent regarding absence
of privity is therefore a material objection and cannot simply be
ignored. At the same time, such objection cannot be accepted at
this stage because deciding it would require consideration of
disputed facts and evidence. The Court cannot hold merely
because the invoices bear the name of Ornate Buildcon
Developers that the arbitration agreement relied upon by the
Applicant has no existence between the Applicant and the


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Opponent. Such a conclusion would require the Court to
overlook the Agreement relied upon by the Applicant and the
subsequent conduct attributed to the Opponent in the reply to
the Arbitration Notice. In fact, the objection raised by the
Opponent and the material relied upon by the Applicant show
why adjudication may be required. On one side, the Opponent
says that the invoices are issued to another company and there
is no privity of contract. On the other side, the Applicant relies
upon a written Agreement containing an arbitration clause,
which according to the Applicant is signed by the Opponent. The
Applicant relies upon the reply in which the Opponent is stated
to have nominated an Arbitrator by invoking Clause 12. Final
decision on these rival factual positions would require evidence
and consideration. Such exercise cannot properly be undertaken
in an application of the present nature.

24.   The principle stated in paragraph 76.5 is applicable. The
Supreme Court has held that “substantive objections pertaining
to existence and validity on the basis of evidence must be left to
the Arbitral Tribunal since it can ‘rule’ on its own jurisdiction.”
The objection regarding the identity of the party liable under the
Agreement and the effect of invoices issued in the name of
another entity is essentially an objection which may require
consideration   of   evidence.   Therefore,   such     objection       is
appropriately required to be left open for determination by the
Arbitral Tribunal. This conclusion is in line with paragraph 76.7
of Ajay Madhusudan Patel. The Supreme Court has recognised



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that questions regarding whether particular persons are parties
to an arbitration agreement may involve complicated factual
issues. Though the context in that case was regarding
impleadment of non-signatories, the principle remains that
where deciding whether a person is bound by an arbitration
agreement requires examination of facts, the Arbitral Tribunal
would be the appropriate forum to decide such question under
Section 16 of the Act.

25.    It is necessary to make clear that referring the dispute to
arbitration does not mean that the case of the Applicant is
accepted on merits. It does not mean that the invoices raised by
the Applicant are necessarily payable by the Opponent.
Similarly, the counterclaim raised by the Opponent has not been
examined on merits. All questions regarding the services
rendered, the identity of the person liable to make payment, the
effect of the invoices, the amount claimed by the Applicant, the
counterclaim raised by the Opponent and the jurisdiction of the
Arbitral Tribunal over the Opponent remain open.

26.    The main question which requires consideration at this
stage is whether the application deserves to be rejected because
of    the   objection   raised   by    the   Opponent.   On     overall
consideration of the material placed before this Court, I am
unable to accept that submission. The Applicant has produced
and relied upon a written Marketing Services Agreement
containing an arbitration clause. The Applicant has relied upon
the conduct of the Opponent in replying to the Arbitration



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Notice and, according to the Applicant, invoking Clause 12 and
nominating an Arbitrator. These circumstances are sufficient, at
least prima facie, to show existence of an arbitration agreement
requiring the disputes to be referred to arbitration. The dispute
regarding the fact that the invoices are issued in the name of
Ornate Buildcon Developers and not Ornate Infra Holding (P)
Ltd. is relevant. However, that fact is not sufficient for this Court
to hold that no arbitration agreement exists between the parties.
The issue involves disputed facts and may require consideration
of evidence. Applying the principles stated by the Supreme
Court, particularly in paragraphs 76.4, 76.5 and 76.7 of Ajay
Madhusudan Patel, this issue is required to be left open for
determination by the Arbitral Tribunal in accordance with
Section 16 of the Act. The Court must keep in mind the caution
contained in paragraph 76.6 that a examination at the stage of
Section 11 may be “counterproductive to the objective of
expeditious disposal of Section 11 application”. If this Court now
undertakes a inquiry into the entire transaction, examines why
every invoice was raised, determines the exact relationship
between Ornate Buildcon Developers and Ornate Infra Holding
(P) Ltd., and decides the liability of the Opponent, the present
proceedings would almost become a trial even before the
arbitration starts. Such exercise is not warranted at this stage.
Therefore, after considering the rival submissions and the
material presently available, I find that the Applicant has made
out a sufficient case for referring the disputes to arbitration. The




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objection of the Opponent regarding absence of privity of
contract raises factual as well as jurisdictional issues, which are
expressly kept open. The Arbitral Tribunal shall be free to
consider and decide the said objection, including the question
whether the Opponent is a party to, or is bound by, the
Marketing Services Agreement and the arbitration clause
contained therein. The Tribunal shall decide all other objections,
claims and counterclaims on their own merits and in accordance
with law.

27.   In view of the above, the present Application under
Section 11 of the Act is disposed of in terms of the following
order:

               A)       Ms.    Shubhra     Swami    Paranjape,       an
               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 the Agreement referred to
               above;

               Office Address:-1101, 11th Floor, 1Infinity
               (Formerly known as Ramnimi Fort), Cawasji
               Patel Street, Mumbai 400001

               Email ID: [email protected]

               B)       A     copy    of   this   Order     will     be
               communicated to the Learned Sole Arbitrator by
               the Advocates for the Applicant within a period of



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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;

E)      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


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               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      shall      constitute   valid   service      of
               correspondence            in   connection      with       the
               arbitration;

               F)       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.

28.   All issues on merits are expressly kept open to be agitated
before the arbitral tribunal appointed hereby.

29.   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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