Case Note & Summary
The petitioners filed two arbitration petitions under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of an arbitrator pursuant to clause 29 of a development agreement entered into with the respondents. The respondents opposed the petitions primarily on the ground that there was no dispute between the parties, as the petitioners had already received the amounts due under the agreement. The court, after hearing the submissions, held that at the stage of appointment of an arbitrator under Section 11(6), the court is only required to examine the prima facie existence of an arbitration agreement. The existence or non-existence of a dispute is a matter that falls within the jurisdiction of the arbitrator to decide. The court noted that the arbitration clause was clear and unambiguous, and the petitioners had invoked the same. Accordingly, the court allowed both petitions and appointed a sole arbitrator to adjudicate the disputes between the parties.
Headnote
A) Arbitration Law - Appointment of Arbitrator - Section 11(6) of the Arbitration and Conciliation Act, 1996 - Existence of Dispute - The court held that at the stage of appointment of an arbitrator under Section 11(6), the court is only required to see the prima facie existence of an arbitration agreement and not the existence of a dispute. The question whether there is a dispute or not is a matter for the arbitrator to decide. (Paras 3-5)
Issue of Consideration
Whether the court can refuse to appoint an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 on the ground that there is no dispute between the parties?
Final Decision
Both arbitration petitions are allowed. A sole arbitrator is appointed to adjudicate the disputes between the parties.
Law Points
- Section 11(6) of the Arbitration and Conciliation Act
- 1996
- Existence of dispute
- Appointment of arbitrator
- Prima facie existence of arbitration agreement
Case Details
2016 LawText (BOM) (07) 162
Arbitration Petition No. 26 of 2016 and Arbitration Petition No. 27 of 2016
Mr. Rajiv Patil, Senior Advocate, i/b. Mr. Dushyant Purekar for the Petitioners; Mr. Nishant Tripathi, i/b. M. Tripathi & Co. for Respondent nos. 1 to 4.
Ramesh Ramchandra Kalyankar, Rohini Ramesh Kalyankar, Rachana Ramesh Kalyankar, Rasik Ramesh Kalyankar
Suresh K. Haware, Sanjay K. Haware, Pravin K. Haware, Haware Engineers & Builders Pvt. Ltd.
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Nature of Litigation
Arbitration petition for appointment of arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.
Remedy Sought
Appointment of arbitrator in terms of clause 29 of the development agreement.
Filing Reason
Dispute arose between the parties under a development agreement; petitioners invoked arbitration clause.
Issues
Whether the court can refuse to appoint an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 on the ground that there is no dispute between the parties?
Submissions/Arguments
Petitioners argued that there is a valid arbitration agreement and disputes have arisen, warranting appointment of arbitrator.
Respondents contended that there is no dispute as the petitioners have already received the amounts due under the agreement.
Ratio Decidendi
At the stage of appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, the court is only required to see the prima facie existence of an arbitration agreement. The existence or non-existence of a dispute is a matter for the arbitrator to decide.
Judgment Excerpts
The court is only required to see the prima facie existence of an arbitration agreement and not the existence of a dispute.
The question whether there is a dispute or not is a matter for the arbitrator to decide.
Procedural History
Petitioners filed two arbitration petitions under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of arbitrator. Respondents opposed on ground of no dispute. Court heard both sides and allowed petitions.
Acts & Sections
- Arbitration and Conciliation Act, 1996: Section 11(6)
