MANU/DE/5680/2023

Equivalent/Neutral Citation: 2023:DHC :5979

IN THE HIGH COURT OF DELHI

ARB. P. 1317/2022 and I.A. No. 19286/2022
Decided On: 22.08.2023
Amit Guglani and Ors. Vs. L and T Housing Finance Ltd. and Ors.
Hon'ble Judges/Coram:
Jyoti Singh, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Manohar Lal and Chaitanya Rohilla, Advocates
For Respondents/Defendant: Taru Saxena, Advocate, Manmeet Kaur, Gurtejpal Singh,
Suditi Batra and Gaurangi Khanna, Advocates
Case Note:
Arbitration - Arbitrator - Appointment of - Sections 11(6) and 21 of
Arbitration and Conciliation Act, 1996 (Arbitration Act) - Present petition filed
under Section 11(6) of Arbitration Act for appointment of sole Arbitrator in
accordance with Clause 27 of Tripartite Agreement in question - Whether case
made out for appointment of arbitrator as prayed - Held, Court cannot
exercise jurisdiction under Section 11(6) of Arbitration Act in absence of
notice invoking arbitration under Section 21 of Arbitration Act - Arbitration
Clause 27 provides procedure for referring disputes to Arbitration - Same does
not imply that mandatory notice under Section 21 of Arbitration Act can be
dispensed with - Court not inclined to proceed with appointment of arbitrator
- Petitioners not precluded from invoking Arbitration Clause 27 for reference
of disputes to arbitration in accordance with law - Petition dismissed. [40],
[43]
JUDGMENT
Jyoti Singh, J.
1 . This petition has been filed under Section 11(6) of the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as 'the Act') for appointment of a sole Arbitrator in
accordance with Clause 27 of the Tripartite Agreement dated 24.10.2018.
2 . Facts to the extent necessary and captured in the petition are that Respondent No.
1/L&T Housing Finance Ltd./Lender is a company registered under the Companies Act,
1956 and is in the business of advancing finance in different categories such as home
loans, auto loans, micro loans. Under the Scheme of Amalgamation by way of merger
by absorption approved by NCLT, Mumbai and NCLT, Kolkata, Respondent No. 1 has
merged with L&T Finance Ltd. w.e.f. 12.04.2021. Respondent No. 2/Raheja Developers
Ltd./Developer is also a company incorporated under the Companies Act, 1956 and is in
the business of real estate and construction.
3 . Respondent No. 2 is constructing a residential real estate project being 'Raheja
Vanya' project situated at Sector-99A, Gurgaon and had started booking and inviting
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applications for allotment by sale of residential units/flats in the project with various
payment options. Petitioners approached Respondent No. 2 for booking of a unit and
were offered the construction linked option, after which Petitioners approached
Respondent No. 1 for loan of Rs. 67 lakhs towards payment of sale/purchase
consideration in respect of residential unit/flat bearing No. B-052. Loan was availed
under a special scheme and the terms and conditions of the loan were incorporated as a
part of the Tripartite Agreement dated 24.10.2018, executed at Delhi between the
Petitioners, Respondent No. 1 and Respondent No. 2.
4. It is stated that Petitioners agreed to secure the finance by mortgaging all rights, title
and benefits accruing from the unit with Respondent No. 1 during the currency and term
of the loan advanced by Respondent No. 1. Respondent No. 2 agreed and confirmed that
it shall not create third party rights in the mortgaged unit, without prior written
consent/permission of Respondent No. 1. A separate Home Loan Agreement (hereinafter
referred to as the 'Loan Agreement') was entered into and executed between the
Petitioner and Respondent No. 1 on 17.01.2019.
5 . Based on the Tripartite Agreement dated 24.10.2018, Respondent No. 1 sanctioned
and disbursed the loan to the Petitioners vide letter dated 17.01.2019 as per the Loan
Agreement bearing No.

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6. It was agreed between the Petitioners and Respondent No. 2 that pre-EMIs shall be
paid by Respondent No. 2 for a maximum period of 48 months and Respondent No. 1
shall deduct the pre-EMIs for the term of this subvention, upfront from first
disbursement. Respondent No. 2 was to pay the pre-EMIs till 06.06.2022 and first EMI
of Rs. 22,883/-was payable by the Petitioners w.e.f. 07.06.2022. However,
subsequently Petitioners received a letter dated 06.09.2019 from Respondent No. 1
stating that the Basic Prime Lending Rate (BPLR) of Petitioners' home loan was
erroneously mentioned in the sanction letter as 17.75% and the current BPLR was
18.10%. Relevant part of the letter is as follows:-
"This is with reference to your loan bearing number H17500161118071816, we
would like to inform you that the BPLR (basic prime lending rate) of your home
loan was erroneously mentioned in the sanction letter shared at the time of
disbursal. Kindly note that your current BPLR is 18.10%."
7 . Petitioners immediately protested against the increase of BPLR by an e-mail dated
04.11.2019, but by e-mail dated 09.11.2019, Respondent No. 1 informed the Petitioners
that the rectification was correct. Petitioners again wrote to Respondent No. 1 vide e-
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mail dated 26.11.2019 that unilateral modification was impermissible and was contrary
to the terms of the Tripartite Agreement dated 24.10.2018. This was followed by e-
mails dated 20.02.2020 and 22.07.2022, objecting to the increase in BPLR. No reason
was given by Respondent No. 1 for the illegal increase, despite knowing that in a
finance/loan, the rate of interest was directly related to BPLR i.e. any increase in BPLR
will increase the rate of interest to be paid by the Petitioners.
8. Instead of addressing the issues raised by the Petitioners, Respondent No. 1 sent a
legal notice dated 15.07.2022 demanding payment of Rs. 23,084/-towards the EMI
within 15 days from the receipt of notice, which triggered a complaint from the
Petitioners with Ombudsman seeking compensation of Rs. 10 lakhs for mental agony
suffered. On 04.08.2022, Petitioners again wrote to the Grievance Redressal Officer but
there was no resolution/reconciliation of the disputes. Petitioners thereafter received a
notice dated 13.10.2022 under Section 13(2) of SARFAESI Act from Respondent No. 1
stating that owing to defaults in the payment of loan instalments, the loan account of
the Petitioners had been classified as Non-Performing Asset on 04.09.2022 and the
entire liability of Rs. 30,01,820.45/-as on 10.10.2022 with interest and other charges
was fixed on the Petitioners. 60 days' time was given to the Petitioners to pay the
allegedly outstanding amounts. Petitioner No. 1 also received summons dated
16.09.2022 from MM, 12th Court, Calcutta under Section 25 of Payment and Settlement
Systems Act, 2007.
9 . Petitioners state that since the disputes were not being resolved, they invoked
Arbitration Clause 27 of the Tripartite Agreement dated 24.10.2018 and have
approached this Court since the Arbitration Clause envisages unilateral appointment of a
sole Arbitrator by lender/Respondent No. 1, which cannot be sustained in law, being in
violation of Section 12(5) of the Act and the judgment of the Supreme Court in Perkins
Eastman Architects DPC And Another v. HSCC (India) Limited, MANU/SC/1628/2019 :
(2020) 20 SCC 760.
10. At the outset, two preliminary objections were raised by Respondent No. 1. First
objection was that the dispute with respect to which reference is sought to arbitration,
is with respect to Loan Agreement i.e. rectifying BPLR from 17.75% to 18.10%, as
averred in paragraphs 10 to 16 of the petition as also complaint to customer care and
Banking Ombudsman as well as the correspondences exchanged between the parties.
Secondly, loan was sanctioned and disbursed under the Loan Agreement and not under
the Tripartite Agreement and the Loan Agreement contains separate Arbitration Clause
No. 12.3, where the exclusive jurisdiction is with the Courts at Kolkata. Thus this Court
has no territorial jurisdiction to entertain the present petition.
11. Petitioners have wrongfully invoked Clause 27 of the Tripartite Agreement dated
24.10.2018, which is absolutely irrelevant to the disputes raised and has been
fraudulently relied upon to create territorial jurisdiction of this Court. Pertinently, while
invoking the Tripartite Agreement, no relief has been sought against Respondent No. 2,
which clearly shows that no disputes have arisen under the Tripartite agreement. The
rate of interest, tenure of instalments, BPLR, etc. are all disputes which only concern
and relate to the Loan Agreements.
1 2 . The second objection taken by Respondent No. 1 is that mandatory notice of
invocation under Section 21 of the Act has not been given by the Petitioners. Under an
erroneous understanding of law, an application being I.A. No. 19286/2022 has been
filed by the Petitioners seeking exemption from serving an invocation notice under
Section 21 of the Act on the ground that Clause 27 of the Tripartite Agreement

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envisages unilateral appointment which is hit by Section 12(5) of the Act and is
contrary to the judgment of the Supreme Court in Perkins Eastman Architects DPC And
Another (supra). Present petition cannot be entertained in the absence of issuance of
notice invoking arbitration under Section 21, in view of the judgments of this Court in
Alupro Building Systems Pvt. Ltd. v. Ozone Overseas Pvt. Ltd., MANU/DE/0495/2017;
Shriram Transport Finance Company Limited v. Narender Singh, MANU/DE/3970/2022;
Haldiram Manufacturing Co. Ltd. v. SRF International, MANU/DE/7348/2007 and
Extramarks Education India Private Limited v. Shri Ram School and Another,
MANU/DE/3728/2022.
13. Petitioners have no cause of action since the action of Respondent No. 1 impugned
herein is neither illegal nor arbitrary. At the time of sanctioning the loan, BPLR for the
home loan in question was erroneously mentioned in the sanction letter as 17.75% due
to some technical error. Since the correct BPLR was 18.10%, the error was sought to be
corrected and immediately a letter dated 06.09.2019 was sent to the Petitioners
communicating the error and rectifying the BPLR. It is wrong for the Petitioners to
contend that rate of interest or EMI will be impacted due to change in BPLR or that there
is a unilateral modification of the contract.
14. Learned counsel for the Petitioners refuted the preliminary objections. With respect
to invocation of the Arbitration Clause 27 of the Tripartite Agreement, it was argued that
as per the subvention scheme under the Tripartite Agreement, both Respondent No. 2
and Petitioners are liable to pay pre-EMIs and EMIs, respectively to Respondent No. 1.
The unit booked by the Petitioners is mortgaged with Respondent No. 1, under a special
scheme involving both the Developer and lender and while the rights, title and other
benefits attached to the unit were mortgaged to the lender, Respondent No. 2 has
undertaken not to create any third party rights without prior permission of the lender.
15. It was submitted that from the Tripartite Agreement, it is evident that pre-EMIs
were to be subvented by Respondent No. 2 for a maximum period of 48 months or from
07.10.2017 to 06.06.2022, whichever was earlier and Respondent No. 1 was to deduct
the pre-EMIs for the term of the subvention, upfront from first disbursement. It was
made clear under the Tripartite Agreement that rate of interest applicable to the loan
will be linked to lender's BPLR and any increase in the rate shall be borne by
Respondent No. 2 during pendency of the scheme and will be paid upfront on the date
of change of the interest for the balance subvention period of the loan. These and
several other covenants/terms in the Tripartite Agreement show that Loan Agreement is
inseparable from the Tripartite Agreement and Petitioner has rightly invoked Clause 27
under the Tripartite Agreement. Outcome of the dispute pertaining to the increase in
BPLR will have a direct impact on the pre-EMIs also under the subvention which were
payable by Respondent No. 2.
16. It was further urged that there is no merit in the objection of Respondent No. 1 that
in the absence of mandatory notice under Section 21 of the Act, the petition deserves to
be dismissed. Arbitration Clause 27 provides for unilateral appointment of a sole
Arbitrator by the lender/Respondent No. 1 and being in violation of Section 12(5) of the
Act and judgments in this regard, no purpose would have been achieved by sending a
notice under Section 21 of the Act as the authority under the said clause suffers from a
disability to appoint the Arbitrator. Even assuming that a notice was mandatory,
Petitioners had vide an e-mail dated 13.09.2022 intimated to Respondent No. 2 that a
third party in authority is required to help address the concerns.
1 7 . Learned counsel had placed heavy reliance on the judgment of this Court in

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Haldiram Manufacturing Co. Ltd. (supra). It was urged that in the said judgment, Court
had no doubt observed that prior invocation notice is required before invoking the
jurisdiction of the Court under Section 11(5) of the Act, however, it was further held
that where there is no specific procedure prescribed under the Arbitration Clause, it
cannot be said that there is violation of the pre-requisite of sending an invocation notice
before Section 11 of the Act is invoked. Reliance was also placed on the judgment in
Brilltech Engineers Private Limited v. Shapoorji Pallonji and Company Private Limited,
MANU/DE/5145/2022, where this Court reiterated the view taken in Haldiram
Manufacturing Co. Ltd. (supra) and further held that notice of the petition under Section
11 of the Act, when served upon the Respondent, itself constitutes notice invoking
arbitration and if parties have to agree there is nothing preventing them, even after
filing of the petition to agree upon the Arbitrator. For the same proposition, learned
counsel also relied upon the judgment of the Calcutta High Court in Universal
Consortium of Engineers Pvt. Ltd. v. Kanak Mitra and Another, MANU/WB/0265/2021.
1 8 . Learned counsel for the Petitioners distinguished the judgments relied upon by
Respondent No. 1 in Alupro Building Systems Pvt. Ltd. (supra), by urging that in both
the judgments in Universal Consortium of Engineers Pvt. Ltd. (supra) and Brilltech
Engineers Private Limited (supra), Court has extensively dealt with the judgment in
Alupro Building Systems Pvt. Ltd. (supra) and disagreed with the view taken. Judgment
in Shriram Transport Finance Company Limited (supra) was sought to be distinguished
on facts that the unilateral communication was sent only to the proposed Arbitrator and
not to the party to the agreement.
19. Learned counsel appearing on behalf of Respondent No. 2 argued to the limited
extent that the Developer has nothing to do with the dispute relating to the Loan
Agreement as he was not a party to the said agreement and arbitration clause in the
Tripartite Agreement cannot be invoked for reference of disputes arising out of the loan
advanced to the Petitioner.
20. I have heard the learned counsels for the parties and examined their contentions.
21. The first issue that this Court is required to examine is whether the dispute arising
under the Loan Agreement is integrally connected with the Tripartite Agreement.
Necessity of resolving this conundrum arises on account of the preliminary objection
taken by Respondent No. 1 that under the Loan Agreement, the exclusive jurisdiction to
decide the disputes lies with the Courts at Kolkata. Therefore, if the Court comes to a
conclusion that the Petitioners cannot invoke the Arbitration Clause under the Tripartite
Agreement, this Court will lack the territorial jurisdiction to entertain this petition.
22. At the outset, it needs a mention that the date of Tripartite Agreement varies in the
petition and in the response filed by Respondent No. 1. Photocopy of the Agreement is
on record which reflects that the same was executed on 25.10.2018, which is the date
referred to hereinafter.
23. The Tripartite Agreement, which is the main agreement between the parties, was
entered into between the Petitioners and both the Respondents. Engaged in the business
of real estate, Respondent No. 2 offered a residential unit to the Petitioners in its
'Raheja Vanya' Project in Sector-99A, Gurugram on a "construction linked option",
which was one of the payment options available under the project. For the purpose of
investing in the unit, Petitioners approached Respondent No. 1, which is a finance
company, for loan of Rs. 67,00,000/-towards payment of sale/purchase consideration.
The Tripartite Agreement records that the loan was availed under a special scheme with

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the developer and lender and its terms and conditions were made part of the
agreement. Under the subvention scheme, Petitioners agreed to secure Respondent No.
1 by mortgaging all rights, title and benefits accruing from the unit in its favour and
Respondent No. 2 in turn, undertook not to create third party rights or security interest
without prior written consent/permission of lender. Both the borrower and developer
have undertaken that the pre-EMIs shall be subvented by the developer for maximum
period of 48 months or from 07.10.2017 to 06.06.2022, whichever was earlier and
lender was to deduct the pre-EMIs for the term of subvention, upfront from first
disbursement. All terms and conditions pertaining to the loan including the period of
pre-EMIs/EMIs, date of commencement of EMIs, payment of interest, BPLR etc. form
part of the Tripartite Agreement.
24. Significantly, the agreement also records that till the commencement of the EMIs
payable by the Petitioners, Respondent No. 2 shall pay the pre-EMIs, calculated at the
rate of interest mentioned in the Loan Agreement executed between the borrower and
lender or such rate as may be communicated, to the developer/ borrower from time to
time. Paragraph 7 of the Tripartite Agreement provides that the interest rate applicable
to the loan will be linked to lender's BPLR and any increase in the rate shall be borne by
the developer during pendency of the scheme and will be paid upfront on the date of
change of interest for the balance subvention period of the said loan. In fact substantial
part of the agreement deals with the terms of repayment of loan albeit there is a
separate Loan Agreement.
25. From the covenants of the Tripartite Agreement, it is clear that it is this agreement
which is the main or umbrella agreement between the parties and the Loan Agreement
is connected with this agreement inextricably. It is also clear that the two agreements
do not operate independent of each other and the payment of pre-EMIs/EMIs and the
liabilities of the Petitioners and Respondent No. 2 stipulated under the Tripartite
Agreement are referrable to the Loan Agreement. The heart of the dispute in the present
petition is the increase in BPLR from 17.75% to 18.10%. From a reading of the
Tripartite Agreement, it is evident that it was agreed between the parties that the
interest rate applicable to the loan will be linked to lender's BPLR and since Respondent
No. 2 was required to pay the pre-EMIs during the subvention period, in my view, the
two issues cannot be delinked and more so because Respondent No. 1 has sought to
rectify and increase the BPLR from the date of sanction of the loan, which impacts the
pre-EMIs payable by Respondent No. 2 and consequentially the mortgage of the unit in
question.
26. Court has perused the Loan Agreement also and a holistic and conjoint reading of
the Tripartite and Loan Agreements respectively shows that at the time of entering the
Tripartite Agreement, there was consensus ad idem on the terms and conditions
contained therein which comprehensively, in my view, encompass the conditions of
payment of loan under the Loan Agreement, including EMIs and interest rates etc. and
there is an overlap. Non-payment of increased BPLR may amount to breach of the
Tripartite Agreement whereunder the unit of the Petitioners has been mortgaged in
favour of the lender and thus both the Agreements are inseparable and interconnected.
2 7 . Having come to a conclusion that the two agreements are inseparable and the
dispute raised in the present petition can be only resolved by reading the covenants of
both the agreements, the next question that falls for consideration is which of the two
Arbitration Clauses can be invoked. It is an undisputed fact that the Tripartite
Agreement contains an Arbitration Clause 27 where the venue of Arbitration is New
Delhi while the Loan Agreement contains Arbitration Clause 12.3 which gives exclusive
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jurisdiction to the Courts at Kolkata.
28. A similar question arose before the Supreme Court in Olympus Superstructures Pvt.
Ltd. v. Meena Vijay Khetan and Others, MANU/SC/0359/1999 : (1999) 5 SCC 651,
where the Supreme Court was deciding whether disputes and differences arising under
the Interior Design Agreement were integrally connected with those arising under the
main agreement pertaining to sale of flats. Having come to a finding that the disputes
arising under the main agreement were connected with the disputes arising from the
Interior Design Agreement, the Supreme Court held that the Arbitration Clause in the
main agreement would govern the parties. Relevant paragraph is as follows:-
"30. If there is a situation where there are disputes and differences in
connection with the main agreement and also disputes in regard to "other
matters" "connected" with the subject-matter of the main agreement then in
such a situation, in our view, we are governed by the general arbitration clause
39 of the main agreement under which disputes under the main agreement and
disputes connected therewith can be referred to the same arbitral tribunal. This
clause 39 no doubt does not refer to any named arbitrators. So far as clause 5
of the Interior Design Agreement is concerned, it refers to disputes and
differences arising from that agreement which can be referred to named
arbitrators and the said clause 5, in our opinion, comes into play only in a
situation where there are no disputes and differences in relation to the main
agreement and the disputes and differences are solely confined to the Interior
Design Agreement. That, in our view, is the true intention of the parties and
that is the only way by which the general arbitration provision in clause 39 of
the main agreement and the arbitration provision for a named arbitrator
contained in clause 5 of the Interior Design Agreement can be harmonised or
reconciled. Therefore, in a case like the present where the disputes and
differences cover the main agreement as well as the Interior Design Agreement,
- (that there are disputes arising under the main agreement and the Interior
Design Agreement is not in dispute) - it is the general arbitration clause 39 in
the main agreement that governs because the questions arise also in regard to
disputes relating to the overlapping items in the schedule to the main
agreement and the Interior Design Agreement, as detailed earlier. There cannot
be conflicting awards in regard to items which overlap in the two agreements.
Such a situation was never contemplated by the parties. The intention of the
parties when they incorporated clause 39 in the main agreement and clause 5 in
the Interior Design Agreement was that the former clause was to apply to
situations when there were disputes arising under both agreements and the
latter was to apply to a situation where there were no disputes or differences
arising under the main contract but the disputes and differences were confined
only to the Interior Design Agreement. A case containing two agreements with
arbitration clauses arose before this Court in Agarwal Engg. Co. v. Technoimpex
Hungarian Machine Industries Foreign Trade Co. [MANU/SC/0001/1977 :
(1977) 4 SCC 367 : AIR 1977 SC 2122] There were arbitration clauses in two
contracts, one for sale of two machines to the appellant and the other
appointing the appellant as sales representative. On the facts of the case, it was
held that both the clauses operated separately and this conclusion was based
on the specific clause in the sale contract that it was the "sole repository" of the
sale transaction of the two machines. Krishna Iyer, J. held that if that were so,
then there was no jurisdiction for travelling beyond the sale contract. The
language of the other agreement appointing the appellant as sales
representative was prospective and related to a sales agency and "later
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 purchases", other than the purchases of these two machines. There was
therefore no overlapping. The case before us and the above case exemplify
contrary situations. In one case the disputes are connected and in the other
they are distinct and not connected. Thus, in the present case, clause 39 of the
main agreement applies. Points 1 and 2 are decided accordingly in favour of the
respondents."
29. The issue again came up for consideration before the Supreme Court in Balasore
Alloys Limited v. Medima LLC, MANU/SC/0691/2020 : (2020) 9 SCC 136, in respect of
appointment of an Arbitrator. The Applicant before the Supreme Court invoked the
Arbitration Clause in the purchase orders. In the said case, parties had also entered into
other agreements with respect to the same transaction which had separate Arbitration
Clauses. Relying upon the judgment in Olympus Superstructures Pvt. Ltd. (supra), the
Supreme Court held as follows:-
"12. Having taken note of the arbitration clause existing in two different set of
documents between the same parties relating to the same transaction; in order
to harmonise or reconcile and arrive at a conclusion as to which of the clauses
would be relevant in the instant facts; it would be necessary for us to refer to
the manner in which the arbitration clause was invoked and the nature of the
dispute that was sought by the parties to be resolved through arbitration. In
that regard a perusal of the documents will reveal that in the case on hand the
applicant had not initiated the process of invoking the arbitration clause. On the
other hand a notice dated 13-3-2020 (Annexure A-41) was issued on behalf of
the respondent by its attorney to the applicant referring to the breach of the
agreement dated 31-3-2018 (umbrella agreement/pricing agreement) and as
per the procedure provided under Clause 23 of the said agreement an
opportunity was provided to amicably resolve the matter; failing which it was
indicated that the respondent would approach the International Chamber of
Commerce ("ICC") in 30 days. It is in reply to the said notice dated 13-3-2020
issued by the respondent on 13-4-2020, the applicant herein disputed the claim
put forth by the respondent under the agreement dated 31-3-2018 referring to
it as the pricing agreement. Further, the applicant thereafter referred to the
nature of their claim and thereon proceeded to indicate that the constitution of
the Arbitral Tribunal and conduct of arbitration proceeding shall be in
accordance with Clause 7 of the contract terms forming part of and governing
all individual contracts.
13. In the above backdrop, when both, the purchase order as also the pricing
agreement subsists and both the said documents contain the arbitration clauses
which are not similar to one another, in order to determine the nature of the
arbitral proceedings the said two documents will have to be read in harmony or
reconciled so as to take note of the nature of the dispute that had arisen
between the parties which would require resolution through arbitration and
thereafter arrive at the conclusion as to whether the instant application filed
under Section 11 of the 1996 Act would be sustainable so as to appoint an
arbitrator by invoking Clause 7 of the purchase order; more particularly in a
situation where the Arbitral Tribunal has already been constituted in terms of
Clause 23 of the agreement dated 31-3-2018."
30. From a reading of the aforementioned judgments of the Supreme Court, it clearly
emerges that where there are two agreements which are connected and interlinked and
both contain Arbitration Clauses, which are not similar to one another, in order to
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determine the nature of the arbitral proceedings, the two documents have to be read in
harmony or reconciled and parties should get the disputes resolved under the main or
umbrella agreement. Applying these principles, this Court finds merit in the contention
of the Petitioners that reference to arbitration has to be made by invoking the
Arbitration Clause in the Tripartite Agreement which reads as follows:-
"27. If any dispute, difference, claim or controversy (the "Dispute") arises
between the Parties about the validity, interpretation, implementation, or
alleged breach of any provision of this Agreement, then the Parties shall
negotiate in good faith to endeavor to resolve the matter. However, if the
Dispute has not been resolved by the Parties within thirty (30) days after the
date of receipt of written notice of the Dispute by either Party from the Party
raising the Dispute, then Dispute shall be referred to a sole arbitrator appointed
by the Lender. The arbitration shall be governed by the Arbitration and
Conciliation Act, 1996 as updated. The venue of arbitration shall be at New
Delhi. The award of arbitrator shall be final and binding on the Parties."
31. It is also luminously clear from a reading of the Arbitration Clause that it provides
that the venue of the arbitration shall be at New Delhi and in this light the objection of
Respondent No. 1 that this Court lacks territorial jurisdiction predicating its case on the
Loan Agreement, merits rejection.
32. The next and the only other objection of Respondent No. 1 is that mandatory notice
invoking arbitration under Section 21 of the Act was not given by the Petitioners and
hence the petition deserves to be dismissed. Petitioners have countered the argument
by making two-fold submissions, one being alternative to the other. The first
submission is that in view of Section 12(5) and the judgment in Perkins Eastman
Architects DPC And Another (supra), there was no purpose in sending a notice to
Respondent No. 1 for appointment, as unilateral appointment cannot be made. The
alternative submission, which though not pleaded but raised during the course of
hearing, was that even assuming that the notice was required to be given, Petitioners
have by their e-mail dated 13.09.2022 intimated Respondent No. 2 that the matter could
be only resolved by a third party and this e-mail should be construed as an invocation
notice.
33. Having given my thoughtful consideration to both the limbs of submissions of the
Petitioners, this Court is unable to agree with the Petitioners, on both aspects. Section
11(6) of the Act comes into play when the contingencies stipulated therein occur which
includes failure of a party to act as required under the procedure agreed by the parties.
Therefore, by a plain reading of the statutory provision, it is only when the agreed
procedure does not lead to appointment of Arbitrator, on account of failure on the part
of either party, that jurisdiction of a Court can be invoked under Section 11(6) of the
Act. Therefore, invocation of the Court's jurisdiction under Section 11(6) presupposes
initiation of procedure agreed upon by the parties under the Arbitration Clause.
34. Section 21 comes into play as a part of this procedure. A reading of the Section
makes it clear that the crucial words in the provision are "the date on which a request
for that dispute to be referred to arbitration" and thus, there is little room for doubt that
for commencement of arbitral proceedings, either party has to make a request to the
other party for reference of the dispute to Arbitration. In this context, I may refer to the
judgment of this Court in Alupro Building Systems Pvt. Ltd. (supra), relevant
paragraphs of which are as under:-

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 "Is the notice under Section 21 mandatory?
23. While the above ground is by itself sufficient to invalidate the impugned
Award, the Court proposes to also examine the next ground whether the
Respondent could have, without invoking the arbitration clause and issuing a
notice to the Petitioner under Section 21 of the Act filed claims directly before
an Arbitrator appointed unilaterally by it?
24. Section 21 of the Act reads as under:
"21. Commencement of arbitral proceedings.-Unless otherwise agreed
by the parties, the arbitral proceedings in respect of a particular dispute
commence on the date on which a request for that dispute to be
referred to arbitration is received by the respondent."
2 5 . A plain reading of the above provision indicates that except where the
parties have agreed to the contrary, the date of commencement of arbitration
proceedings would be the date on which the recipient of the notice (the
Petitioner herein) receives from the claimant a request for referring the dispute
to arbitration. The object behind the provision is not difficult to discern. The
party to the arbitration agreement against whom a claim is made, should know
what the claims are. It is possible that in response to the notice, the recipient
of the notice may accept some of the claims either wholly or in part, and the
disputes between the parties may thus get narrowed down. That is one aspect
of the matter. The other is that such a notice provides an opportunity to the
recipient of the notice to point out if some of the claims are time barred, or
barred by any law or untenable in fact and/or that there are counter-claims and
so on.
26. Thirdly, and importantly, where the parties have agreed on a procedure for
the appointment of an arbitrator, unless there is such a notice invoking the
arbitration clause, it will not be possible to know whether the procedure as
envisaged in the arbitration clause has been followed. Invariably, arbitration
clauses do not contemplate the unilateral appointment of an arbitrator by one of
the parties. There has to be a consensus. The notice under Section 21 serves an
important purpose of facilitating a consensus on the appointment of an
arbitrator.
2 7 . Fourthly, even assuming that the clause permits one of the parties to
choose the arbitrator, even then it is necessary for the party making such
appointment to let the other party know in advance the name of the person it
proposes to appoint. It is quite possible that such person may be 'disqualified'
to act an arbitrator for various reasons. On receiving such notice, the recipient
of the notice may be able to point out this defect and the claimant may be
persuaded to appoint a qualified person. This will avoid needless wastage of
time in arbitration proceedings being conducted by a person not qualified to do
so. The second, third and fourth reasons outlined above are consistent with the
requirements of natural justice which, in any event, govern arbitral
proceedings.
2 8 . Lastly, for the purposes of Section 11(6) of the Act, without the notice
under Section 21 of the Act, a party seeking reference of disputes to arbitration
will be unable to demonstrate that there was a failure by one party to adhere to
the procedure and accede to the request for the appointment of an arbitrator.
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 The trigger for the Court's jurisdiction under Section 11 of the Act is such
failure by one party to respond.
29. Of course, as noticed earlier, parties may agree to waive the requirement of
such notice under Section 21. However, in the absence of such express waiver,
the provision must be given full effect to. The legislature should not be
presumed to have inserted a provision that serves a limited purpose of only
determining, for the purposes of limitation, when arbitration proceedings
commenced. For a moment, even assuming that the provision serves only that
purpose viz. fixing the date of commencement of arbitration proceedings for the
purpose of Section 43(1) of the Act, how is such date of commencement to be
fixed if the notice under Section 21 is not issued? The provision talks of the
'Respondent' receiving a notice containing a request for the dispute "to be
referred to arbitration". Those words have been carefully chosen. They indicate
an event that is yet to happen viz. the reference of the disputes to arbitration.
By overlooking this important step, and straightaway filing claims before an
arbitrator appointed by it, a party would be violating the requirement of Section
21, thus frustrating an important element of the parties consenting to the
appointment of an arbitrator.
30. Considering that the running theme of the Act is the consent or agreement
between the parties at every stage, Section 21 performs an important function
of forging such consensus on several aspects viz. the scope of the disputes, the
determination of which disputes remain unresolved; of which disputes are time-
barred; of identification of the claims and counter-claims and most importantly,
on the choice of arbitrator. Thus, the inescapable conclusion on a proper
interpretation of Section 21 of the Act is that in the absence of an agreement to
the contrary, the notice under Section 21 of the Act by the claimant invoking
the arbitration clause, preceding the reference of disputes to arbitration, is
mandatory. In other words, without such notice, the arbitration proceedings
that are commenced would be unsustainable in law."
35. This view has been reiterated by this Court in several judgments and in order to
avoid prolixity, I may only refer to Rahul Jain and Others v. Atul Jain and Others,
MANU/DE/4549/2022 and Anil Goel v. Satish Goel, MANU/DE/4475/2022. Useful it
would be also to refer to a few passages from another judgment of this Court in Bharat
Chugh v. MC Agrawal HUF, MANU/DE/3529/2021 as follows:-
"27. To my mind, the issue is elementary. Section 21 of the 1996 Act is a
provision which specifically deals with commencement of arbitral proceedings.
That which does not commence, obviously, cannot continue. When the statutory
scheme envisages commencement of proceedings in a particular fashion, they
have to commenced in that fashion or not at all. One may rely, for this purpose,
on the line of authorities starting with Taylor v. Taylor and proceeding through
Nazir Ahmed v. King Emperor to State of Uttar Pradesh v. Singhara Singh and
Municipal Corporation of Greater Mumbai v. Abhilash Lal.
28. Section 21 clearly states that arbitral proceedings, in respect of a dispute
commences on the date on which a request for that dispute to be referred to
arbitration is received by the opposite party. Admittedly, there is no such
communication, from the respondent to the petitioner, envisaging reference of
the disputes between them to arbitration. Mr. Agarwal has drawn my attention
to a communication dated 17th June, 2020, addressed by him to the petitioner.

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 The communication set outs, in graphic detail, the specifics of the dispute
between the petitioner and the respondent. Thereafter, the communication
concludes with the following passages:
"We therefore, hereby call upon you to return back all the shares given
by our client vide agreement dated 25.01.2020 except 1750 shares of
Cipla Ltd. and 260 Shares of Ultra Tech Cement Ltd. (the shares
returnable on Feb 20 and March 2020) and also make the payment of
interest and dividend payable by you on the said shares and also
give/transfer the right shares as per agreement dated 25.01.2020,
within a period of 7 clays of the receipt of this notice. Kindly note that
in case you fail to do so, our client shall take appropriate action both
under the criminal, and also the civil law, by filing an FIR against you
and also by taking appropriate steps under civil law for recovery of
equity shares and amount of interest at your cost risk and liability."
29. Mr. Agarwal submits that, even if the aforesaid communication dated 17th
June, 2020 did not specifically envisage reference of the dispute to arbitration,
it, nonetheless, put the petitioner on notice that the respondent, in the event of
default on the part of the petitioner in complying with the demands of the
respondent, intended "to take appropriate action both under the criminal, and
also the civil law .... by taking appropriate steps under civil law for recovery of
equity shares and amount of interest." This, according to Mr. Agarwal, would
suffice as a notice invoking arbitration, as arbitration is also a civil law remedy.
For this purpose, Mr. Agarwal also placed reliance on certain passages from the
judgment of a Coordinate Bench of this Court in De Lage.
30. As against this, Mr. Singh points out that the notice dated 17th June, 2020
was prior to the supplementary agreement dated 26th June, 2020, whereunder
the arbitral proceedings have been initiated. Accordingly, he submits that it
cannot be treated as a notice invoking arbitration.
31. A notice invoking arbitration, to my mind, must necessarily do that. It has
to invoke arbitration. At the very least, it has to refer to the clause in the
contract which envisages reference of the dispute to arbitration. Merely sending
a notice, setting out the disputes between the parties and informing the
addressee that civil and criminal legal remedies would be availed in the event
of failure, cannot, in my view, constitute a notice invoking arbitration.
xxxx xxxx xxxx
35. Alupro Building System is an authority for the proposition that a Section 21
notice is indispensable before an arbitral proceeding is initiated. The law in that
regard has been elucidated with commendable clarity in the said decision, and
it hardly lies on me to reinvent the wheel. I express my respectful agreement
with the decision in Alupro Building System which, according to me, covers the
case in favour of the petitioner and against the respondent on this issue."
36. The judgment will be incomplete without reference to a recent judgment of the
Division Bench of this Court in Shriram Transport Finance Company Limited (supra).
The Court was dealing with an appeal under Section 37(1)(b) of the Act against an
order of the learned District Judge where the arbitral award had been set aside under
Section 34 and one of the grounds for setting aside was non-compliance of Section 21
of the Act. The Division Bench expressed agreement with the principles laid down in
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Alupro Building Systems Pvt. Ltd. (supra), and observed that the judgment aptly
explained the relevance of notice under Section 21 of the Act. Having so observed, on a
finding of fact that notice of invocation was not sent to the party Respondent but only to
the Arbitrator, the Division Bench held that the letter purporting to be an invocation
notice did not qualify as a notice of the commencement of the proceedings and there
being no agreement for a waiver of the requisite notice under Section 21, the arbitral
appointment was not in accordance with the provisions of Section 21. Relevant
paragraphs are as follows:-
"28. From a perusal of the arbitral award, it is also apparent that the letter
dated 27-9-2018 was sent by the appellant Company to the arbitrator, by hand,
through one Mr Tekchand Sharma, Attorney for the appellant Company.
29. In order to deal with the objection of the appellant Company, the notice
under Section 21 of the Act was sent, we would need to refer to the said
provision. Section 21 of the Act, which sets forth the date of commencement of
arbitral proceedings, reads as follows :
"21. Commencement of arbitral proceedings.- unless otherwise agreed
by the parties, the arbitral proceedings in respect of a particular dispute
commence on the date on which a request for that dispute to be
referred to arbitration is received by the respondent."
30. A plain reading of this section shows that arbitral proceedings commence
on the date on which the request for the dispute to be referred to arbitration is
received by the respondent concerned. Therefore, the commencement of arbitral
proceedings is incumbent on the "receipt of such request or notice". If no
notice is received by the respondent concerned, there is no commencement of
arbitral proceedings at all. Emphasis here is also made to the fact that the
notice should not only be "sent" but also that the notice should be "received"
for such request for commencement.
31. Section 21 will have to be read with Section 34 of the Act. Section 34(2)
(iii) provides that an award may be set aside, in the event, where the party
appointing the arbitrator has not given proper notice of the appointment of an
arbitrator or the arbitral proceedings.
32. The judgment in Alupro Building case [Alupro Building Systems (P) Ltd. v.
Ozone Overseas (P) Ltd., MANU/DE/0495/2017] has aptly explained the
relevance of a notice under Section 21 of the Act. It was held that the Act does
not contemplate unilateral appointment of an arbitrator by one of the parties,
there has to be a consensus for such appointment and as such, the notice under
Section 21 of the Act serves an important purpose of facilitating such a
consensus on the appointment of an arbitrator. It was further held in Alupro
Building case [Alupro Building Systems (P) Ltd. v. Ozone Overseas (P) Ltd.,
MANU/DE/0495/2017] that the parties may opt to waive the requirement of
notice under Section 21 of the Act. However, in the absence of such a waiver,
this provision must be given full effect to.
33. We are in agreement with the principles as expressed in the decision of
Alupro Building case [Alupro Building Systems (P) Ltd. v. Ozone Overseas (P)
Ltd., MANU/DE/0495/2017] , which are enunciated below :
(i) The party to the arbitration agreement against whom a claim is
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 made should know what the claims are. The notice under Section 21 of
the Act provides an opportunity to such party to point out if some of
the claims are time-barred or barred by law or untenable in fact or if
there are counterclaims.
(ii) Where the parties have agreed on a procedure for appointment,
whether or not such procedure has been followed, will not be known to
the other party unless such a notice is received.
(iii) It is necessary for the party making an appointment to let the other
party know in advance the name of the person who it proposes to
appoint as an arbitrator. This will ensure that the suitability of the
person is known to the opposite party including whether or not the
person is qualified or disqualified to act as an arbitrator for the various
reasons set forth in the Act. Thus, the notice facilitates the parties in
arriving at a consensus for appointing an arbitrator.
(iv) Unless such notice of commencement of arbitral proceedings is
issued, a party seeking reference of disputes to arbitration upon failure
of the other party to adhere to such request will be unable to proceed
under Section 11(6) of the Act. Further, the party sending the notice of
commencement may be able to proceed under the provisions of sub-
section 5 of Section 11 of the Act for the appointment of an arbitrator if
such notice does not evoke any response.
34. The appellant Company has relied on the letters dated 20-9-2018 and 27-
9-2018 to show compliance with Section 21 of the Act. This reliance by the
appellant Company is completely misconceived. The letter of 20-9-2018 was a
unilateral communication sent by the appellant Company to the respondent. As
discussed above, the letter did not set forth any details about who was being
appointed as an arbitrator or the procedure being followed. The appellant
Company merely stated that they have a right to initiate arbitral proceedings
and so they will initiate arbitral proceedings. There was no person named as an
arbitrator therein nor was any consensus sought in such appointment. There is
no evidence of this letter ever being received by the respondent on record
either. As such, the letter dated 20-9-2018 would not qualify as notice under
Section 21 of the Act.
35. The letter dated 27-9-2018, was never sent to the respondent so there was
no question of this letter being received by the respondent. It was only sent to
the arbitrator. This letter could not qualify to be the notice of commencement of
proceedings either.
36. The record also shows that the parties had no agreement for a waiver of
the requisite notice under Section 21 of the Act.
3 7 . Hence, we hold that the arbitral appointment made by the appellant
Company was not made in accordance with the provisions of Section 21 of the
Act."
3 7 . With this wealth of judicial precedents, it cannot be argued by Petitioners that
notice under Section 21 of the Act is not mandatory. The argument of the Petitioners
that since the Arbitration Clause envisages unilateral appointment, the exercise of
sending an invocation notice was futile albeit ingenious but cannot be sustained in law.
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Even in Alupro Building Systems Pvt. Ltd. (supra), the Arbitration Clause between the
parties envisaged unilateral appointment by the supplier and taking cognizance of the
said Clause, the Court laid down that it was a mandate of law to send a notice under
Section 21 and the trigger for the Court's jurisdiction under Section 11 of the Act is
failure of one party to respond to a notice sent by other party under Section 21 seeking
reference of disputes to arbitration.
38. The last plank of the argument of the Petitioners was that the e-mail sent by the
Petitioners to Respondent No. 2 be construed as an invocation notice under Section 21.
Before addressing this issue, it is relevant to extract the e-mail hereunder:

39. Having closely scrutinized the aforesaid e-mail, this Court cannot agree with the
Petitioners that this notice can be construed as an invocation notice under Section 21 of
the Act. As held in Bharat Chugh (supra), notice invoking arbitration must invoke
arbitration and at the very least, refer to the clause in the contract which envisages
reference of the dispute to arbitration. The Court further observed that even sending a
notice, setting out the disputes between the parties and informing that civil or criminal
legal remedies would be availed in the event of failure, cannot constitute a notice
invoking arbitration. In this context, I may also refer to two passages from the
judgment of the Bombay High Court in D.P. Construction v. Vishvaraj Environment Pvt.
Ltd., MANU/MH/2206/2022, as under:-
"26. Considering the position of law as clarified by this Court in the case of
Malvika Rajnikant Mehta v. JESS Construction (supra) and the Delhi High Court
in the case of Alupro Building Systems Pvt. Ltd. v. Ozone Overseas Pvt. Ltd.
(supra) pertaining to the purposes that a notice invoking arbitration under
section 21 of the said Act serves, with which this Court is in agreement, the
notice invoking arbitration ought to be absolutely clear with reference to the
arbitration clause and with clear intent of calling upon the rival party to proceed

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 for appointment of an Arbitrator and referring the disputes to arbitration. The
words in section 21 of the said Act, as regards commencement of arbitral
proceedings specifically refer to a request for the dispute to be referred to
arbitration. Hence, unless there is a request by a party that the dispute is to be
referred to arbitration, merely stating the claims and disputes in the notice
would not suffice. In the present case, even in the reply sent by the non-
applicant, there is no reference to the arbitration clause or any intent on the
part of the non-applicant to refer the dispute to arbitration, despite claiming
huge amount from the applicant. This clearly indicates that in the present case,
arbitration itself was not invoked by either party as per the agreed procedure
under section 11(2) of the said Act read with section 21 thereof.
2 7 . In absence of the agreed procedure being triggered by either party for
reference of the dispute to arbitration, the question of failure thereof would not
arise and hence, the precondition for invoking section 11(6) of the said Act for
approaching this Court was not satisfied. This aspect goes to the very root of
the matter and hits at the very jurisdiction of this Court to entertain the
application for appointment of Arbitrator, filed by the applicant under section
11(6) of the said Act. The non-applicant is justified in contending that
therefore, the present application deserves to be rejected only on the said
limited ground. The learned counsel for the applicant is not justified in
contending that the legal notice dated 07/10/2020, can be constructively read
as a notice invoking arbitration under section 21 of the said Act and that the
preliminary objection is hyper-technical in nature. This is for the reason that
there are legal consequences to invoking of arbitration as contemplated under
section 21 of the said Act, including the aspect of limitation, and other such
purposes which have been enumerated in the above quoted judgments of this
Court and the Delhi High Court. Therefore, merely because there is an
arbitration clause, it cannot be said that this Court ought to exercise jurisdiction
under section 11(6) of the said Act."
40. In view of the aforesaid, this Court finds merit in the objection raised on behalf of
Respondent No. 1 that in the absence of a notice invoking arbitration under Section 21
in the manner envisaged under the Act, this Court cannot exercise jurisdiction under
Section 11(6) of the Act. The judgment in Haldiram Manufacturing Co. Ltd. (supra)
relied upon by the Petitioners does not support their case wherein the Court held that in
the absence of any procedure prescribed under the Arbitration Clause, it cannot be said
that there is violation of the pre-requisites provided in Section 11 of the Act. Quite
different from the facts of that case, in the present case, the Arbitration Clause 27
clearly provides a procedure for referring the disputes to Arbitration, similar to the
arbitration agreements involved in the judgements referred to above. As far as reliance
on Brilltech Engineers Private Limited (supra) is concerned, this judgment also does not
aid the Petitioners. The Court observed that even if for the sake of arguments, it is
accepted that the demand notice failed to meet the requisite requirements of Section 21,
it cannot be overlooked that in a Section 9 petition, Respondent had agreed to refer the
disputes to Arbitration and therefore, the petition under Section 9 of the Act and the
willingness of the Respondent to resort to Arbitration for resolution of disputes was
sufficient compliance of Section 21. This judgment nowhere reflects that the Court was
of the view that Section 21 notice can be dispensed with. Reading of the judgment by
the Calcutta High Court in Universal Consortium of Engineers Pvt. Ltd. (supra), shows
that the learned Judge was of the view that an invocation notice under Section 21 is not
mandatory. With all due regard, this Court is not persuaded to agree that notice under
Section 21 can be dispensed with as a pre-requisite, while invoking jurisdiction of the
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Court under Section 11(6) of the Act, in view of the judgements of this Court, both of
the Division Bench and the co-ordinate Benches.
41. For all the aforesaid reasons, first objection is decided in favour of the Petitioners
that the arbitration clause in the Tripartite Agreement can be invoked by the Petitioners
for reference of the disputes to arbitration. However, on the second objection raised by
Respondent No. 1, Petitioners cannot succeed.
42. Accordingly, the petition is dismissed along with pending application with a caveat
that this Court has not expressed any opinion on the merits of the disputes between the
parties.
43. It is made clear that dismissal of this petition would not preclude the Petitioners
from invoking Arbitration Clause 27 in the Tripartite Agreement for reference of disputes
to arbitration, in accordance with law.
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