Madhya Pradesh High Court
Ram Brijesh Tiwari vs Ajay Singh Gond on 26 February, 2026
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2026:MPHC-JBP:22423
1 WP-21714-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 26 th OF FEBRUARY, 2026
WRIT PETITION No. 21714 of 2021
RAM BRIJESH TIWARI
Versus
AJAY SINGH GOND AND ANOTHER
Appearance:
Shri Ashish Shrivastava - Advocate for the petitioner.
Shri Shahzad Ahmed Shah - Advocate for respondent No.1.
Shri A.S. Baghel - Government Advocate for the State.
ORDER
The present petition has been filed assailing the Award dated 15/09/2018
passed by respondent No.2 and order dated 14/03/2019 passed by 11 th Additional
District & Sessions Judge, Jabalpur.
2 . It is the case of the petitioner that petitioner and respondent No.1
executed a partnership agreement on 04/04/2017 in respect of starting a firm in
the name of Aaho Foods by making proportionate investment. The agreement
reveals that there is no arbitration clause therein. Petitioner was served a notice
dated 12/02/2018 by respondent No.1 demanding Rs.10,50,000/- from him and in
the said notice, down below he has put a note that if any dispute arise between the
parties, then the matter shall be decided by the sole arbitrator, Shri Arun Kumar
Jain, Advocate. He has not even indicated the address or further identity of
Advocate Shri Arun Kumar Jain. He again sent a notice on 14/03/2018 demanding
the aforesaid amount and in that, identical note was appended. Thereafter on
10/04/2018 a notice was sent by Shri Arun Kumar Jain, Advocate showing
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MISHRA
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himself to be the Arbitrator, but the fact remains that he was not legally appointed
Arbitrator as there was no arbitration clause in the original agreement. No consent
was given by the petitioner that he will be treated as an Arbitrator to resolve the
dispute. Respondents are hand in glove and with a sole object to deprive the
petitioner from his property, they have adjudicated upon the matter by declaring
respondent No.2 as a sole Arbitrator. Petitioner gave a reply on 21/06/2018 to the
notice raising an objection to the effect of arbitration proceeding taken up against
him because of lack of arbitration clause and respondent No.2 having no
jurisdiction to adjudicate upon the dispute. Petitioner also published a notice on
24/06/2018 in the Newspaper pointing out that the arbitration proceedings could
not have commenced without any arbitration clause but despite of the same,
respondent No.2 passed the Award without issuing any notice to the petitioner to
appear before him on the date of passing of the Award so that the copy of the
Award will be supplied to him in terms of Section 35 of the Act. It is submitted
that the said notice is mandatory and a copy of Award is required to be supplied to
the party. Thereafter, respondent No.1 filed an execution application based on the
Award, then only the petitioner came to know about that the Award has been
passed when he received the notice of execution proceedings. Petitioner is not in
possession of the original copy of the Award because the same has never been
supplied by the respondents. He has placed reliance on the judgment passed by the
Hon’ble Supreme Court in the case of Jagdish Chander Vs. Ramesh Chander and
Others reported in (2007) 5 SCC 719 dealing with the similar provisions and the
Hon’ble Supreme Court was pleased to allow the Civil Appeal and the order
appointing Arbitrator was set aside. It is argued that petitioner is identically
situated, therefore similar relief should be extended to the petitioner. Therefore,
this petition has been filed.
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 24-03-2026
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3. Learned counsel appearing for the respondents has filed reply to the Writ
Petition. It is contended that a notice was issued to the petitioner with a specific
note that Shri Arun Kumar Jain, Advocate be appointed as an Arbitrator in case of
any dispute between the parties. The petition is highly barred by limitation
because it is filed after a lapse of 3 years from the date of passing of arbitral
Award dated 15/09/2018. The notices were issued to the petitioner on 12/02/2018
and 14/03/2018. He has not denied the factum of appointment of sole Arbitrator.
Thus, it creates an arbitration agreement between the petitioner and respondent
No.1 within the meaning of sub-section (4)(c) of Section 7 of the Arbitration and
Conciliation Act, 1996. Therefore, respondent No.2 has rightly proceeded in the
matter and passed the impugned Award. No illegality is committed by respondent
No.2.
4. Heard learned counsel for the parties and perused the record.
5. The sole question which comes up for consideration before this Court is
that in absence of any arbitration clause in the agreement, whether respondent
No.2 can be appointed as a sole Arbitrator to decide the dispute between the
parties.
6. It is an admitted position that the agreement between the parties does not
contain any arbitration clause. It is only the notice which has been issued by
respondent No.1 to the petitioner with a note appended therein at the bottom that
in case of any dispute between the parties, the matter will be dealt with by sole
arbitrator Shri Arun Kumar Jain, Advocate. A similar notice was issued on
14/03/2018. Thereafter, the notice has been issued by the sole Arbitrator i.e.
respondent No.2 on 10/04/2018 to the petitioner pointing out that he has been
appointed as a sole Arbitrator.
7. The Hon’ble Supreme Court in the case of Jagdish Chander (supra), has
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MISHRA
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considered the similar aspect and has held as under:-
“6. Therefore, the only question that arises for consideration
in this case is whether clause 16 of the deed of partnership
dated 9-1-1964 is an “arbitration agreement” within the
meaning of Section 7 of the Act.
7. Sub-section (1) of Section 7 of the Act defines
“arbitration agreement” as an agreement by the parties to
submit to arbitration all or certain disputes which have
arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not. Sub-
section (2) provides that an arbitration agreement may be in
the form of an arbitration clause in a contract or in the form
of a separate agreement. Sub-section (3) requires an
arbitration agreement to be in writing. Sub-section (4)
provides that an arbitration agreement is in writing, if it is
contained in — (a) document signed by the parties; or ( b) in
an exchange of letters, telex, telegrams or other means of
telecommunication which provide a record of the agreement;
or (c) an exchange of statements of claim and defence in
which the existence of the agreement is alleged by one party
and not denied by the other.
8. This Court had occasion to refer to the attributes or
essential elements of an arbitration agreement in K.K. Modi
v. K.N. Modi [(1998) 3 SCC 573] , Bharat Bhushan Bansal
v . U.P. Small Industries Corpn. Ltd. [(1999) 2 SCC 166]
a n d Bihar State Mineral Development Corpn. v. Encon
Builders (I) (P) Ltd. [(2003) 7 SCC 418] In State of Orissa
v. Damodar Das [(1996) 2 SCC 216] this Court held that a
clause in a contract can be construed as an “arbitration
agreement” only if an agreement to refer disputes or
differences to arbitration is expressly or impliedly spelt out
from the clause. We may at this juncture set out the well-
settled principles in regard to what constitutes an arbitration
agreement:
(i) The intention of the parties to enter into an arbitration
agreement shall have to be gathered from the terms of the
agreement. If the terms of the agreement clearly indicate an
intention on the part of the parties to the agreement to refer
their disputes to a private tribunal for adjudication and a
willingness to be bound by the decision of such tribunal on
such disputes, it is arbitration agreement. While there is no
specific form of an arbitration agreement, the words used
should disclose a determination and obligation to go to
arbitration and not merely contemplate the possibility of
going for arbitration. Where there is merely a possibility of
the parties agreeing to arbitration in future, as contrasted
from an obligation to refer disputes to arbitration, there is no
valid and binding arbitration agreement.
(ii) Even if the words “arbitration” and “Arbitral Tribunal
(or arbitrator)” are not used with reference to the process ofSignature Not Verified
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MISHRA
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settlement or with reference to the private tribunal which has
to adjudicate upon the disputes, in a clause relating to
settlement of disputes, it does not detract from the clause
being an arbitration agreement if it has the attributes or
elements of an arbitration agreement. They are: (a) The
agreement should be in writing. (b) The parties should have
agreed to refer any disputes (present or future) between them
to the decision of a private tribunal. (c) The private tribunal
should be empowered to adjudicate upon the disputes in an
impartial manner, giving due opportunity to the parties to
put forth their case before it. (d) The parties should have
agreed that the decision of the private tribunal in respect of
the disputes will be binding on them.
(iii) Where the clause provides that in the event of
disputes arising between the parties, the disputes shall be
referred to arbitration, it is an arbitration agreement. Where
there is a specific and direct expression of intent to have the
disputes settled by arbitration, it is not necessary to set out
the attributes of an arbitration agreement to make it an
arbitration agreement. But where the clause relating to
settlement of disputes, contains words which specifically
exclude any of the attributes of an arbitration agreement or
contains anything that detracts from an arbitration
agreement, it will not be an arbitration agreement. For
example, where an agreement requires or permits an
authority to decide a claim or dispute without hearing, or
requires the authority to act in the interests of only one of
the parties, or provides that the decision of the authority will
not be final and binding on the parties, or that if either party
is not satisfied with the decision of the authority, he may file
a civil suit seeking relief, it cannot be termed as an
arbitration agreement.
(iv) But mere use of the word “arbitration” or “arbitrator”
in a clause will not make it an arbitration agreement, if it
requires or contemplates a further or fresh consent of the
parties for reference to arbitration. For example, use of
words such as “parties can, if they so desire , refer their
disputes to arbitration” or “in the event of any dispute, the
parties may also agree to refer the same to arbitration” or “if
any disputes arise between the parties, they should consider
settlement by arbitration” in a clause relating to settlement
of disputes, indicate that the clause is not intended to be an
arbitration agreement. Similarly, a clause which states that
“if the parties so decide, the disputes shall be referred to
arbitration” or “any disputes between parties, if they so
agree, shall be referred to arbitration” is not an arbitration
agreement. Such clauses merely indicate a desire or hope to
have the disputes settled by arbitration, or a tentative
arrangement to explore arbitration as a mode of settlement if
and when a dispute arises. Such clauses require the parties to
arrive at a further agreement to go to arbitration, as and
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 24-03-2026
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when the disputes arise. Any agreement or clause in an
agreement requiring or contemplating a further consent or
consensus before a reference to arbitration, is not an
arbitration agreement, but an agreement to enter into an
arbitration agreement in future.
9. Para 16 of the partnership deed provides that if there is
any dispute touching the partnership arising between the
partners, the same shall be mutually decided by the parties or
shall be referred to arbitration if the parties so determine. If
the clause had merely said that in the event of disputes
arising between the parties, they “shall be referred to
arbitration”, it would have been an arbitration agreement.
But the use of the words “shall be referred for arbitration if
the parties so determine” completely changes the
complexion of the provision. The expression “determine”
indicates that the parties are required to reach a decision by
application of mind. Therefore, when clause 16 uses the
words “the dispute shall be referred for arbitration if the
parties so determine”, it means that it is not an arbitration
agreement but a provision which enables arbitration only if
the parties mutually decide after due consideration as to
whether the disputes should be referred to arbitration or not.
In effect, the clause requires the consent of parties before the
disputes can be referred to arbitration. The main attribute of
an arbitration agreement, namely, consensus ad idem to
refer the disputes to arbitration is missing in clause 16
relating to settlement of disputes. Therefore it is not an
arbitration agreement, as defined under Section 7 of the Act.
In the absence of an arbitration agreement, the question of
exercising power under Section 11 of the Act to appoint an
arbitrator does not arise.
10. Learned counsel for the first respondent next contended
that clause 16 of the deed of partnership discloses a clear
intention on the part of the partners to settle their dispute
relating to partnership by an alternative dispute resolution
process. He pointed out that clause 16 required the partners
to “mutually decide the disputes” or “refer the disputes to
arbitration”. This, according to him, is in the nature of a
con-arb agreement, that is, it requires the parties to settle the
disputes by negotiations (conciliation and mediation), and
failing settlement by such negotiations, refer the disputes to
arbitration for settlement. He submitted that the clause
provides what Section 89 CPC now statutorily requires. It is
contended that if under Section 89 CPC, parties can be
mandated to have recourse to alternative dispute resolution
processes to settle their disputes, there is no reason why the
disputes between the parties in this case should not be
referred to ADR process including arbitration under clause
16. This contention, though attractive, has no merit. The
object and scope of Section 11 of the Act is specific and
narrow. Though the power exercised under Section 11 of the
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 24-03-2026
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Act has been held to be a judicial power (see SBP & Co. v.
Patel Engg. Ltd. [(2005) 8 SCC 618] ) the proceedings relate
only to appointment of Arbitral Tribunal. The disputes as
such are not before the Chief Justice or his designate for
adjudication. Therefore, Section 89 CPC has no application.
It should not also be overlooked that even though Section
89 mandates courts to refer pending suits to any of the
several alternative dispute resolution processes mentioned
therein, there cannot be a reference to arbitration even under
Section 89 CPC, unless there is a mutual consent of all
parties, for such reference. Be that as it may.
11. The existence of an arbitration agreement as defined
under Section 7 of the Act is a condition precedent for
exercise of power to appoint an arbitrator/Arbitral Tribunal,
under Section 11 of the Act by the Chief Justice or his
designate. It is not permissible to appoint an arbitrator to
adjudicate the disputes between the parties, in the absence of
an arbitration agreement or mutual consent. The designate of
the Chief Justice of Delhi High Court could not have
appointed the arbitrator in the absence of an arbitration
agreement.
12. The appeal is therefore allowed, the order appointing an
arbitrator is set aside and the application by the first
respondent under Section 11 of the Act is rejected. Parties to
bear their respective costs.”
8. If the aforesaid principles are applied to the facts of the present case, then
it is apparently clear that there is no arbitration clause in the agreement entered
into between the parties and there is no order of appointment of Arbitrator in
terms of Section 11 of the Arbitration and Conciliation Act, 1996. The arbitration
clause must have been invoked by issuing a show cause notice to the petitioner.
The documents does not reflect any consent given by the petitioner for settling
dispute through sole Arbitrator.
9. Once there is no arbitration clause in the agreement and there is no order
appointing a sole Arbitrator i.e. respondent No.2 to decide the dispute between the
parties, passing of an Award by respondent No.2 is unsustainable. Respondent
No.1 has himself appointed respondent No.2 as an Arbitrator by way of issuance
of notices dated 12/02/2018 and 14/03/2018, wherein at the bottom of the said
notices, he has put a note regarding appointing respondent No.2 as a sole
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 24-03-2026
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Arbitrator in the matter.
10. In absence of any averment in the agreement regarding appointment of
the Arbitrator to settle the dispute coupled with the fact that there is no order
appointing sole Arbitrator, the Award passed by respondent No.2 is unsustainable.
It is hereby quashed. Ex consequenti, the execution proceedings pending before
11th Additional District Judge, Jabalpur in case No.ExAB/0000108/2019 are set
aside.
11. The petition stands allowed. No order as to costs.
(VISHAL MISHRA)
JUDGE
Shbhnkr
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 24-03-2026
09:39:33
