M/S CAPITAL ELECTECH PVT. LTD.versusUTTAR PRADESH POWER CORPORATION LIMITED (UPPCL) AND 2 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
       ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 209 of 2023

M/S Capital Electech Pvt. Ltd.
                                                           .....Applicant(s)
                                   Versus

Uttar Pradesh Power Corporation Limited (Uppcl)
And 2 Others                                                   .....Opposite
                                                                     Party(s)

Counsel for Applicant(s)      : Dinesh Kumar Rai, Garima Chauhan,
                                Neha Faridi
Counsel for Opposite Party(s) : Kartikeya Saran

Court No. - 7
                   HON'BLE PIYUSH AGRAWAL, J.

1. Heard learned counsel for the parties.

2. Mr. Narendra Srivastava, counsel for the opposite party states that the
opposite party does not want to file counter affidavit.

3. Learned counsel for the applicant submits that on 11.8.2016 an
agreement was entered into between the parties, which contains
arbitration clause. He submits that some dispute arose between the parties,
therefore, the applicant had invoked the arbitration clause no. 22 of the
agreement by sending notice to the opposite party but no consented
arbitration could be appointed by the parties. Hence the present
application has been filed for appointment of Arbitrator in exercise of
powers under Section 11 (6) of the Arbitration and Conciliation
Act,1996.

4. The submissions of the counsel for the applicant is vehemently opposed
by the learned counsel for the opposite parties but the existence of dispute
has not been denied by the counsel for the opposite party therefore, he
also consented for resolving the dispute between the parties by the
Arbitrator appointed by this Court.

5. Having heard learned counsel for the parties, the scope of the present
proceedings under Section 11 of the Act does not require any elaboration
in view of that position in law having been made crystal clear by a recent
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three judge decision of the Supreme Court in the case of M/S Mayavati
Trading Pvt. Ltd. Vs. Pradyuat Deb Burman, Civil Appeal No. 7023
of 2019, decided on 05.09.2019 in which it has been held as below:

     "This being the position, it is clear that the law prior to the 2015
     Amendment that has been laid down by this Court, which would have
     included going into whether accord and satisfaction has taken place, has
     now been legislatively overruled. This being the position, it is difficult to
     agree with the reasoning contained in the aforesaid judgment as Section
     11(6A) is confined to the examination of the existence of an arbitration
     agreement and is to be understood in the narrow sense as has been laid
     down in the judgment Duro Felguera, S.A. (supra) -- see paras 48 & 59."

6. While laying down that law, the Supreme Court had itself referred to
paragraph nos. 48 & 59 of its earlier decision in the case of Duro
Felguera, S.A. Vs. Gangavaram Port Ltd., (2017) 9 SCC 729.

7. That position in law has been reiterated in a recent decision of the
Supreme Court in GOQII Technologies Pvt. Ltd. Vs. Sokrati
Technologies Pvt. Ltd., (2025) 2 SCC 192.

8. In the facts of the present case, on prima facie basis, it has to be
accepted that there exists an arbitration clause, between the parties. Also,
it is clear that the parties have not been able to appoint consented
arbitrator and therefore, the appointing authority has to be assumed by
this Court upon the present application brought before it, within
limitation.

9. At the same time, no final conclusion is being drawn as may affect the
merits of the claim. That matter would remain to be considered by the
appropriate forum at the appropriate stage, upon claim, objection,
challenge or appeal being filed. Thus, amongst others it would remain
open to the opposite party to raise all objections as the Act permits.

10. Leaving that course completely open to the respective parties, at
present, only a forum is being provided for adjudication of a claim
proposed to be raised and resisted, in accordance with the law.
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                                    11. Accordingly, with the consent of learned counsel for the parties, Mr.
                                    Justice Nalin Kumar Srivastava, (Former Judge of this Court),
                                    resident of K - 801, Antriksha Forest Society, Sector - 77, Noida,
                                    District - Gautam Buddha Nagar, (U.P) Mobile No. 9412011518, be
                                    appointed the sole arbitrator for resolution of the disputes between the
                                    parties.

                                    12. The Registry is directed to obtain consent of the proposed learned
                                    arbitrator, in terms of Section 11(8) of the Act, within three weeks.

                                    13. List again on 11.5.2026.




                                                                                        (Piyush Agrawal,J.)
                                    April 15, 2026
                                    Rahul Dwivedi/-




Digitally signed by :-
RAHUL DWIVEDI
High Court of Judicature at Allahabad