SWADESH KUMAR AGARWAL versus DINESH KUMAR AGARWAL & ORS, ETC., ETC.

SWADESH KUMAR AGARWAL versus DINESH KUMAR AGARWAL & ORS, ETC., ETC.

Where a sole arbitrator was appointed by the parties by mutual consent in the absence of any written arbitration agreement, an application under section 11(6) was not maintainable; disputes as to termination of an arbitrator's mandate on grounds in section 14(1)(a) must be raised and decided before the court under section 14(2) and cannot be decided via section 11(6); Trial Court rightly dismissed the Order VII Rule 11 challenge at plaint stage.

Parties
Appellant: Swadesh Kumar Agarwal; Respondents: Dinesh Kumar Agarwal & Ors.
Jurisdiction
India
Judgment Date
05 May 2022
Procedural Posture
Civil Appeal / Judgment on Appeal From High Court Order Under Section 11(6) of the Arbitration and Conciliation Act, 1996
Outcome
Impugned High Court judgment and order quashed and set aside; appeals allowed in part and dismissed in part.
Legal Topics
Section 11(5) Arbitration and Conciliation Act, 1996, Section 11(6) Arbitration and Conciliation Act, Section 14(1)(a) and 14(2) Arbitration and Conciliation Act, Order VII Rule 11 CPC, Termination of Arbitrator's Mandate, Appointment of Arbitrator
Arbitration Law Civil Procedure Section 11(5) Arbitration and Conciliation Act, 1996 Section 11(6) Arbitration and Conciliation Act, 1996 Section 14(1)(a) and 14(2) Arbitration and Conciliation Act, 1996 Order VII Rule 11 CPC Termination of Arbitrator's Mandate Appointment of Arbitrator

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Parties

Swadesh Kumar Agarwal

Appellant

Dinesh Kumar Agarwal & Ors.

Respondents

Procedural Posture

Civil Appeal / Judgment on Appeal From High Court Order Under Section 11(6) of the Arbitration and Conciliation Act, 1996

Legal Issues

  1. 1 Whether High Court in exercise of powers under section 11(6) can terminate the mandate of a sole arbitrator appointed by parties by mutual consent
  2. 2 Whether an application under section 11(6) is maintainable in absence of a written contract containing an arbitration agreement
  3. 3 Distinction between section 11(5) and section 11(6) of the Act, 1996

Ratio Decidendi

Where a sole arbitrator was appointed by the parties by mutual consent in the absence of any written arbitration agreement, an application under section 11(6) was not maintainable; disputes as to termination of an arbitrator's mandate on grounds in section 14(1)(a) must be raised and decided before the court under section 14(2) and cannot be decided via section 11(6); Trial Court rightly dismissed the Order VII Rule 11 challenge at plaint stage.

Court Disposition

Impugned High Court judgment and order quashed and set aside; appeals allowed in part and dismissed in part.

Orders

  • Impugned judgment and order passed by the High Court in AC No.29/2015 and Review Petition No.655/2017 quashed and set aside
  • Applications filed by respondent Nos.1 and 3 under section 14(2) of the Arbitration and Conciliation Act, 1996 stand revived