2025:BHC-OS:18469

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
[ COMMERCIAL DIVISION ]

COMMERCIAL ARBITRATION APPLICATION

(LODGING) NO.25035 OF 2024
Rajuram Sawaji Purohit, ]
Sole Proprietor of : ]
M/s. Mactec Realtors & Developers, ]
having office at A/15, Daruwala Wadi CHSL, ]
31, Dr. D.B. Marg, Mumbai Central, ]
Mumbai – 400 008. ] .. Applicant
Versus
The Shandar Interior Private Limited, ]
having registered office at Anuradha Apartment, ]
64 Navi Peth, L.B. Shastri Road, ]
Pune – 411 030 ] .. Respondent

Mr. Mayur Khandeparkar with Mr. Anuj Desai and Mr. Umesh Tawari,
Advocates, i/by S. Ashwinikumar & Co. LLP, for the Applicant.
Mr. Sheelang Shah with Mr. Nirmal Chopda, Advocates, i/by Vraj Legal, for
the Respondent.

CORAM : GAUTAM A. ANKHAD, J.

RESERVED ON : 3RD OCTOBER 2025.
PRONOUNCED ON : 10TH OCTOBER 2025.

ORDER :

1. Disputes have arisen under an Agreement for Purchase of salvage

material dated 29th November 2011 (“Agreement”). The Applicant had paid a

Security Deposit of Rs.51,38,000/- to the Respondent, which is the subject

matter of legal proceedings including this one. After a round of Winding-up

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Petition being Company Petition No.269 of 2016 and a Commercial Summary

Suit No.721 of 2018, this Court in the said Suit, by consent of parties, referred

the parties to arbitration (first round). An award was passed on 6 th June 2022

by the Tribunal inter alia holding that the Applicant’s claims are barred by

limitation (“Award”). The Applicant’s Section 34 Petition (Commercial

Arbitration Petition No.305 of 2023) was allowed by this Court on 7 th

February 2024 and the Award was set aside in its entirety. The Applicant filed

Interim Application (Lodging) No.10052 of 2024 for correction of order dated

7th February 2024. This was also rejected by the Section 34 Court by an order

dated 11th July 2024. The Applicant has now filed this Section 11 Application

seeking appointment of an Arbitrator to adjudicate the same disputes that have

arisen between the parties under the said Agreement (second round). After

this Application was filed, the Applicant has also filed a Section 37 Appeal

(Commercial Arbitration Appeal (Lodging) No.31017 of 2024) in which the

following order has been passed on 26th June 2024 :-

“1. Learned counsel for the appellant submits that the controversy
involved in the instant appeal is squarely covered by the
Constitution Bench decision of the Supreme Court in Gayatri
Balasamy vs. ISG Novasoft Technologies Limited, reported in 2025
SCC OnLine SC 986.
2. Heard on the question of admission.
3. Issue notice to the respondent, returnable on 28th July 2025.
4. Mr. Shah, learned counsel appears on behalf of the respondent and
waives service of notice.”

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2. Mr. Khandeparkar, learned counsel for the Applicant submits that it is

open for the Applicant to re-initiate arbitration and begin the entire process

once again even though the Applicant’s Section 37 Appeal is pending. He

submits that the learned Arbitrator has held that although the Agreement is

legal, binding and enforceable, the Applicant’s claims have been dismissed as

being barred by limitation. Consequently, the Tribunal has held that the

Applicant is not entitled to the refund of Security Deposit of Rs.51,38,000/-.

Upon the Applicant’s challenge, the entire Award was set aside by the Section

34 Court. The second order dated 11th February 2024 passed in the Section 34

proceedings recognizes that the Applicant has to start the arbitration

proceedings de novo in the following terms :

“13. Further, this Court cannot in exercise of jurisdiction

under Section 34 of the Arbitration Act modify an Award
by allowing the Petitioner’s claim which is precisely
what the present Application has called upon this Court
to do. Although this results in an unfortunate
circumstance, where though the Petitioner has
succeeded on merits viz. Issue Nos.1, 2 and 3, being
decided in its favour and the sole ground for setting
aside the Petitioner’s claim is limitation which ground
has been set aside, the Petitioner is unable to have its
claim decided in its favour. The Petitioner would have to
resort to de novo arbitration in respect of all the issues.
However, as the law stands, this Court cannot modify an
Award, but can only uphold or set it aside the Award.”

3. It is submitted that after passing of the above Section 34 order, the law

on modification/severing the award was settled in Gayatri Balasamy Vs. ISG

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Novasoft Technologies Limited, 2025 SCC OnLine SC 986. He submitted

that it is open for Court to appoint an Arbitrator and all issues can be

adjudicated by the Tribunal. Reliance was placed on the judgment of this

Court in Wadhwa Group Holdings Private Limited Vs. Homi Pheroze

Ghandy & Anr., [Commercial Arbitration Application No.414 of 2019, dated

7th March 2022], wherein this Court has appointed an Arbitrator in a second

round pending Section 37 Appeal. It is submitted that the Section 11 Court is

only required to examine the existence of a valid arbitration agreement. It is

not required to examine the issue of res judicata and whether the issue is

covered by the first arbitration and leave that for determination by the

Tribunal. It is prayed that the present Arbitration Application ought to be

allowed and this Court should appoint an arbitrator to adjudicate the disputes

between the parties.

4. Mr. Sheelang Shah, learned counsel for the Respondent opposes this

Application inter alia on the ground that there cannot be multiple rounds of

litigation on the same issue. There must be a finality to litigation. The claim is

time-barred. It is a finding of fact as determined by the Tribunal. The Award

has been set aside by the Section 34 Court and is now under challenge in a

Section 37 Appeal. The said Appeal is pending before the Division Bench of

this Court. The Respondent’s Section 37 Appeal is also pending. This

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Application is premature and the Applicant must await the outcome of the

Appeals. Also any order passed by the proposed Tribunal in the second round

may result in conflicting orders/awards from what the Division Bench in the

Section 37 Appeals or the Hon’ble Supreme Court may ultimately decide in

the first round. The Applicant has also not issued fresh notice of invoking

arbitration which is required under Section 21 of the Act. Thus, this

Application is not maintainable and ought to be dismissed. In any case, a party

cannot be put to unnecessary costs of litigation.

Analysis and Finding:

5. I have perused the record and heard the learned Counsels for the parties

at length. Whilst the arguments advanced by Mr. Shah are appealing on a first

blush, I am bound by the decisions of this Court where in similar situations, an

arbitrator has been appointed by this Court. Apart from the judgment in

Wadhwa Group Holdings Private Limited (supra), recently, this Court

considered a similar argument in Batliboi Environmental Engineers Ltd. Vs.

Hindustan Petroleum Corporation Ltd., 2023 SCC OnLine SC 1208 and

appointed an Arbitrator.

6. The jurisdiction of Section 11 court is now limited. It is only required to

examine the existence of an arbitration agreement. This Court cannot conduct

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an intricate evidentiary inquiry into questions of whether the claims raised by

the Applicant are time barred or whether the issue is barred by principles of res

judicata. Determination of these contested facts will have to be left to the

arbitrator. Admittedly an arbitration agreement exists between the parties at

clause 16 of the said Agreement. It is also pertinent to note that the section 34

proceedings have been concluded and the Award dated 6 th June 2022 has been

set aside. Whilst doing so, the Section 34 Court expressly held that the

Applicant would have to resort to de novo arbitration in respect of all issues,

since it had no power to modify the Award. The position of law has now been

clarified in Gayatri Balasamy (supra). Whilst the Section 37 Appeals are

pending, this court presides in a limited jurisdiction under Section 11 of the

Act, when an application for appointment of an Arbitrator is filed.

7. It is settled law as held by the Hon’ble Supreme Court in Interplay

between Arbitration Agreements under Arbitration and Conciliation Act,

1996 and Stamp Act, 1899, in Re (2024) 6 SCC 1 and followed in subsequent

judgment in the case of SBI General Insurance Company Vs. Krish

Spinning, (2025) 3 SCC (Civ) 567 that the Section 11 Court ought not to

venture beyond examining the existence of an arbitration agreement. The

pendency of any proceeding mentioned hereinabove cannot be an impediment

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to appoint an arbitrator in this Application. All other issues must be agitated

before the Arbitral Tribunal. In a similar situation, the Hon’ble Supreme Court

in “Cox and Kings v. SAP India Pvt. Ltd. & Anr.”, (2025) 1 SCC 611 has

appointed an arbitrator, whilst the first arbitration was pending adjudication,

the relevant portion of which reads as under:

“F.`Analysis
27.Having heard the learned counsel appearing for the
parties and having gone through the materials on
record, the short question that falls for our
consideration is whether the application of the
petitioner for the appointment of an arbitrator deserves
to be allowed.

28.On the scope of powers of the referral court at the

stage of Section 11(6), it was observed by us in
Lombardi Engg. Ltd. v. Uttarakhand Jal Vidyut Nigam
Ltd.[Lombardi Engg. Ltd. v. Uttarakhand Jal Vidyut
Nigam Ltd., (2024) 4 SCC 341 : (2024) 2 SCC (Civ) 763 :
2023 INSC 976] as follows : (SCC p. 363, para 26)

“26. Taking cognizance of the legislative change,

this Court in Duro Felguera, S.A. v.
Gangavaram Port Ltd.[Duro Felguera, S.A. v.
Gangavaram Port Ltd., (2017) 9 SCC 729 :
(2017) 4 SCC (Civ) 764] , noted that post 2015
Amendment, the jurisdiction of the Court under
Section 11(6) of the 1996 Act is limited to
examining whether an arbitration agreement
exists between the parties — “nothing more,
nothing less”.” (emphasis supplied)

29.A Constitution Bench of this Court in Interplay between

Arbitration Agreements under A&C Act, 1996 & Stamp
Act, 1899, In re [Interplay between Arbitration
Agreements under A&C Act, 1996 & Stamp Act, 1899, In
re, (2024) 6 SCC 1 : 2023 INSC 1066] , speaking
through one of us (Dr D.Y. Chandrachud, C.J.),
considered the scope of judicial interference by the
referral court in a Section 11 application. A few relevant

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 observations made therein are reproduced
hereinbelow : (SCC p. 62, para 88)
“88. One of the main objectives behind the
enactment of the Arbitration Act was to
minimise the supervisory role of Courts in the
arbitral process by confining it only to the
circumstances stipulated by the legislature. For
instance, Section 16 of the Arbitration Act
provides that the Arbitral Tribunal may rule on
its own jurisdiction ‘including ruling on any
objection with respect to the existence or
validity of the arbitration agreement’. The
effect of Section 16, bearing in view the
principle of minimum judicial interference, is
that judicial authorities cannot intervene in
matters dealing with the jurisdiction of the
Arbitral Tribunal. Although Sections 8 and 11
allow Courts to refer parties to arbitration or
appoint arbitrators, Section 5 limits the Courts
from dealing with substantive objections
pertaining to the existence and validity of
arbitration agreements at the referral or
appointment stage. A referral court at Section
8 or Section 11 stage can only enter into a
prima facie determination. The legislative
mandate of prima facie determination ensures
that the referral courts do not trammel the
Arbitral Tribunal's authority to rule on its own
jurisdiction.”

30.In a recent decision in SBI General Insurance Co. Ltd. v

Krish Spg. [SBI General Insurance Co. Ltd. v Krish Spg.,
(2024) 12 SCC 1 : 2024 SCC OnLine SC 1754 : 2024
INSC 532] , it was observed by us that the Arbitral
Tribunal is the preferred first authority to look into the
questions of arbitrability and jurisdiction, and the courts
at the referral stage should not venture into contested
questions involving complex facts. A few relevant
paragraphs of the said decision are extracted
hereinbelow : (SCC paras 101, 117 & 128)
“101. What follows from the negative facet of
arbitral autonomy when applied in the
context of Section 16 is that the national
courts are prohibited from interfering in
matters pertaining to the jurisdiction of the
Arbitral Tribunal, as exclusive jurisdiction on

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 those aspects vests with the Arbitral
Tribunal. The legislative mandate of prima
facie determination at the stage of Sections
8 and 11, respectively, ensures that the
referral courts do not end up venturing into
what is intended by the legislature to be the
exclusive domain of the Arbitral Tribunal.
***
117. In view of the observations made by this
Court inInterplay between Arbitration
Agreements under A&C Act, 1996 & Stamp
Act, 1899, In re [Interplay between
Arbitration Agreements under A&C Act,
1996 & Stamp Act, 1899, In re, (2024) 6
SCC 1 : 2023 INSC 1066] , it is clear that the
scope of enquiry at the stage of
appointment of arbitrator is limited to the
scrutiny of prima facie existence of the
arbitration agreement, and nothing else. …
***
128. We are also of the view that ex facie
frivolity and dishonesty in litigation is an
aspect which the Arbitral Tribunal is equally,
if not more, capable to decide upon the
appreciation of the evidence adduced by
the parties. We say so because the Arbitral
Tribunal has the benefit of going through all
the relevant evidence and pleadings in
much more detail than the referral court. If
the referral court is able to see the frivolity
in the litigation on the basis of bare
minimum pleadings, then it would be
incorrect to doubt that the Arbitral Tribunal
would not be able to arrive at the same
inference, most likely in the first few
hearings itself, with the benefit of extensive
pleadings and evidentiary material.”
(emphasis supplied)

32.As discussed above, the respondents have raised a

number of objections against the present petition,
however, none of the objections raised question or deny
the existence of the arbitration agreement under which
the arbitration has been invoked by the petitioner in the
present case. Thus, the requirement of prima facie
existence of an arbitration agreement, as stipulated
under Section 11 of the 1996 Act, is satisfied.

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 33.Once the Arbitral Tribunal is constituted, it shall be open
for the respondents to raise all the available objections
in law, and it is only after (and if) the preliminary
objections are considered and rejected by the tribunal
that it shall proceed to adjudicate the claims of the
petitioner.

35.In view of the aforesaid, the present petition is allowed.

We appoint Shri Justice Mohit S. Shah, former Chief
Justice of the High Court of Judicature at Bombay to act
as the sole arbitrator. The fees of the arbitrator
including other modalities shall be fixed in consultation
with the parties.”

I am bound by the above judgment as well as the view taken already by

this Court in Wadhwa Group Holdings (supra) and Batliboi Environmental

Engineers (supra).

8. The Respondent’s issue of financial burden caused by the second round

of arbitration is indeed a legitimate concern. However, the same can be

agitated by the Respondent before the learned Arbitrator, who shall be at

liberty to pass appropriate orders for payments of fees and costs of arbitration.

The fees of the learned Sole Arbitrator shall be as per the Fourth Schedule of

the Act read with the Bombay High Court (Fee Payable to Arbitrators) Rules,

2018.

9. Being satisfied that an arbitration agreement is in existence, I refer all

disputes and differences between the parties under the above Agreement for

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Purchase of Salvage Material dated 29th November 2011 to arbitration by a

Sole Arbitrator. In these circumstances, the Commercial Arbitration

Application (Lodging) No.25035 of 2024 is disposed of in the following

terms:-

[A]. Mr. Anish S. Karande, a learned 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. The contact details of Mr. Anish

Karande, the Sole Arbitrator, are “Off.Add. : Chambers

of Rohaan J. Cama, Office Nos.17-18, 1st Floor, Islam

Building, 46-48, Veer Nariman Road, Fort, Mumbai-

400001, Mobile No.9870153610, E-mail :

[email protected]”.

[B]. A copy of this order will be communicated to the learned

Sole Arbitrator by the Advocate for the applicant within

a period of one week from the date on which this order is

uploaded on the website of this Court. The Applicant

shall provide the contact and communication particulars

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 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 Advocate 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 Arbitration

Application and a copy of the same shall be furnished by

the Advocate for the Applicant to the Respondents;

[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 schedule for pleadings,

examination of witnesses, if any, schedule of hearings

etc. At such meeting, the parties shall provide a valid and

functional e-mail address along with mobile and landline

numbers of the respective Advocates of the parties to the

Arbitral Tribunal. Communications to such e-mail

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 addresses shall constitute valid service of

correspondence in connection with the arbitration;

[E]. All issues are kept open to be agitated before the

Tribunal.

[F]. The arbitration shall be held at Mumbai.

[ GAUTAM A. ANKHAD, J. ]

Digitally
signed by
SNEHA SNEHA 13/13
ABHAY
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Date:
DIXIT 2025.10.10
15:00:28
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