Can't Object To Maintainability Of Sec.11 Application After Suggesting Name Of Another Arbitrator: Bombay High Court
The Bombay High Court rendered such a finding while considering an application filed under Section 11 of the Arbitration and Conciliation Act, 1996.
Justice Sandeep V. Marne, Bombay High Court
While directing the appointment of a sole arbitrator and deprecating the practice of the opposite party in creating hurdles in the constitution of the Arbitral Tribunal, the Bombay High Court has held that a litigant cannot object to the maintainability of an application under Section 11 of the Arbitration and Conciliation Act after suggesting the name of another arbitrator.
The High Court rendered such findings while considering an application filed under Section 11 of the Arbitration and Conciliation Act, 1996, seeking the appointment of an arbitrator for the adjudication of disputes and differences between the parties arising out of a Master Service Agreement.
The Single Bench of Justice Sandeep V. Marne held, “Thus, despite agreeing for arbitration and in fact suggesting name of Arbitrator, the Respondent has now taken a volte face and is now questioning maintainability of the present Application. The conduct of the Respondent is deprecated.”
Advocate C.M. Jadhav represented the Applicant, while Advocate Niharika Singh represented the Respondent.
Arguments
It was the petitioner’s case that, as per the letter dated June 23, 2025, the Respondent was called upon to cure the breaches within a period of 30 days. The petitioner submitted that the Respondent was put on prior notice before invoking arbitration.
According to the respondent, the application was premature as the Applicant had not followed the procedure envisaged under clause 21 of the Agreement. The respondent contended that the Applicant ought to have first issued the dispute notice, waited for a period of 30 days after service of the notice and thereafter invoked arbitration by issuance of a fresh notice.
Reasoning
On a perusal of the facts of the case, the Bench noted that after receipt of notice under Section 21 of the Arbitration Act from the Applicant, the Respondent did not approve of the appointment of a sole Arbitrator and expressed its nomination to appoint another Advocate as the sole Arbitrator for the adjudication of disputes.
The Bench found that the Respondent did not raise the issue of non-following of the arbitral procedure and went ahead to nominate a sole Arbitrator for the adjudication of disputes. Thereafter, the Application under Section 11(6) was opposed on the pretext of non-following of the arbitration procedure.“This Court does not approve conduct of the Respondent, who has deliberately created hurdle in constitution of Arbitral Tribunal”, it added.
The Bench further noticed that when the Application was called out, the respondent insisted that unless the agreed procedure is followed by issuance of a dispute notice, the appointment of an arbitrator cannot be done. The Bench thus did not find any merit in the objection sought to be raised on behalf of the Respondent, who was deliberately opposing the Application for the purpose of creating hurdles in the constitution of the Arbitral Tribunal.
Thus, rejecting the objections sought to be raised on behalf of the Respondent, the Bench appointed Advocate Priyanka Kothari as the sole Arbitrator to adjudicate upon the disputes and differences between the parties arising out of the concerned Master Service Agreement.
Cause Title: Fintree Finance Private Ltd. v. Embifi Global Services Private Limited (Neutral Citation: 2026:BHC-OS:11277)