Rajasthan High Court – Jodhpur
Urn: Cma / 2678U / 2026Lrs Of Late Shree … vs City Pulse Enterprise Private Limited on 22 May, 2026
[2026:RJ-JD:23604-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Miscellaneous Appeal No. 1277/2026
Legal Representatives Of Late Shree Ramesh Chandra
Patel
(i). Pramila Dangi W/o Late Shree Ramesh Chandra
Patel, R/o At Present 105 Everest Ashiyanan
Opp. Shreenath Hospital, New Navratan
Udaipur, Raj 313001
(ii). Shweta Patel D/o Late Shri Ramesh Chandra
Patel, R/o At Present 105 Everest Ashiyanan
Opp. Shreenath Hospital, New Navratan
Udaipur, Raj 313001
(iii). Rohit Patel S/o Late Shree Ramesh Chandra
Patel, R/o At Present 105 Everest Ashiyanan
Opp. Shreenath Hospital, New Navratan
Udaipur, Raj 313001
----Appellants
Versus
City Pulse Enterprise Private Limited, City Pulse Enterprise
Private Limited Having Registered Office At Unique House,
Opposite Union Bank Of India, Near Popular House, Icici Bank
Lane, Ashram Road, Ahmedabad-380009.
----Respondent
For Appellant(s) : Mr. Vikas Balia, Sr. Adv. assisted by
Mr. Mrigraj Singh Rathore
Mr. Anshuman Mohapatra
Mr. Praveen Singh Rathore
For Respondent(s) : Mr. Vinish Mittal
Ms. Aditi Moad
HON'BLE MR. JUSTICE ARUN MONGA
HON’BLE MR. JUSTICE SANDEEP SHAH
Judgment
1. Date of conclusion of arguments 12.05.2026
2. Date on which judgment was reserved 12.05.2026
3. Whether the full judgment or only the
operative part is pronounced: Full Judgment
4. Date of pronouncement 22.05.2026
REPORTABLE
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Per Hon’ble Shah, J:
1. By way of the present Civil Miscellaneous Appeal, the appellants-
claimants have challenged the order dated 25.02.2026 passed by the
learned Judge, Commercial Court, Udaipur in Case No.20/2025,
whereby the application filed by the respondent-non-claimant under
Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as “the Act of 1996”) has been allowed and the award dated
31.07.2024 passed by the learned Arbitrator has been quashed and set
aside. The principal grounds for allowing the said application were that
the mandate of the learned Arbitrator had expired and no extension
under Section 29A of the Act of 1996 had been granted, and further
that the arbitration proceedings so undertaken were beyond jurisdiction,
inasmuch as, the dispute in question was exclusively triable by the Rent
Tribunal under the Rajasthan Rent Control Act, 2001 (hereinafter
referred to as “the Act of 2001”).
Factual Matrix:-
2. The brief facts of the case are that the claimant-lessor had
entered into a Sub-Lease Agreement with the respondent-non-claimant
on 09.04.2009 in respect of Plot No.1 ad-measuring 34,900 sq. ft.,
situated at Fatehpura, Village Dewali, Tehsil Girwa, District Udaipur. The
lease was initially for a period of 50 years; however, a deed of extension
came to be executed on 20.04.2011, whereby the period of the lease
deed was revised to 75 years. Subsequently, another deed of extension
was executed on 09.01.2016, whereby the period of the sub-lease was
further extended up to 90 years. As per the lease deed, the respondent-
company was required to make payment of Rs.6,00,000/- per month to
the appellants-claimants along with escalation as prescribed in the
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lease deed and agreed between the parties. It was the case of the
appellants-claimants that after 01.03.2020, the respondent-non-
claimant failed to make payment of the lease rentals as well as other
utility charges and urban development tax.
3. Under Clause 5(e) of the Lease Agreement, the parties had
agreed to settle their disputes through arbitration. For the sake of
convenience, Clause 5(e) of the Lease Agreement is reproduced
hereunder:-
“(e) Arbitration Clause:
That in the event of any dispute or difference between the Sub-
Lessor and the Sub-Lessee regarding this Deed of Sub-Lease or
otherwise, the parties shall enter, in good faith, into
negotiations aimed at finding an amicable solution. If the
dispute could not be resolved in a satisfactory manner, either
party may refer the matter to a sole Arbitrator to be nominated
by both the parties with mutual consent. The decision of the
Arbitral Tribunal shall be binding and final. The provisions of
the Arbitration and Conciliation Act, 1996 or any other
statutory amendment, for the time being in force, shall apply.
The venue of arbitration shall be at Udaipur and arbitration
proceedings shall be conducted in English or Hindi language
and any award or awards shall be rendered in English or Hindi.
The award of the arbitrator shall be final and conclusive.”
3.1 In pursuance of the arbitration clause, the appellants-claimants,
after issuing a legal notice for appointment of Arbitrator and having
failed to obtain any response, filed an application under Section 11 of
the Act of 1996 before this Court for appointment of an Arbitrator to
settle the disputes between the parties. This Court, vide order dated
03.08.2022 passed in S.B. Arbitration Application No.4/2022, allowed
the said application and, on the joint request made by both the parties,
namely the respondent and the appellants, appointed Shri R.S. Jhala,
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Judge (Retd.) of this Court, as the learned Arbitrator to adjudicate upon
the disputes between the parties in terms of the arbitration agreement.
For the sake of convenience, the order dated 03.08.2022 is reproduced
hereunder:-
“The present application has been filed under Section 11 (6) of the
Arbitration and Conciliation Act, 1996 for appointment of an independent
Arbitrator on account of a dispute having being arisen between the
parties.
Both the parties are in agreement that there is an arbitration clause
between being clause 5 (e) of the Sub Lease Deed dated 09.04.2009. On
account of the dispute having been arisen between the parties, a notice
for appointment of Arbitrator was served by the applicant on 16.11.2021.
In pursuance of the notice, the respondents have failed to appoint
Arbitrator in the matter for resolving the dispute. The parties are in
agreement that Mr. R. S. Jhala, retired Judge of this Court may be
appointed as Arbitrator in the present case.
Ordered accordingly.
In the circumstances, the application is allowed. Mr. R. S. Jhala, Retired
Judge of this Court, R/o A-28, Chitrakoot Nagar, Udaipur
(Mob.9829149514) is appointed as a sole arbitrator to adjudicate upon
the dispute between the parties in terms of arbitration agreement and as
per the Rajasthan Manual of Procedure for Alternative Dispute
Resolution, 2009, as amended up to date and also as per the provisions of
Arbitration and Conciliation Act.
The record of the case may be transmitted to Mr. R. S. Jhala.
The above appointment is subject to the necessary disclosure under
Section 12 of the Act.
Needles to say that the fees of the arbitrator will be as per Schedule 1V of
the Arbitration and Conciliation Act.”
3.2 Subsequently, the arbitration proceedings commenced. The
appellants-claimants filed their statement of claim on 18.09.2022,
claiming arrears of rent possession of the property damages Municipal
and Revenue Taxes etc. along with the interest. Thereafter the
respondent-non-claimant filed its statement of defence “as well as
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counter claim” on 16.10.2022, to which the appellants-claimants filed
their reply on 12.11.2022. The respondent-non-claimant has filed
rejoinder on 11.12.2022. Thus, the pleadings stood completed on
11.12.2022. It is, therefore, clear that the respondent-non-claimant
had submitted to the jurisdiction of the learned Arbitrator by way of
filing the counter claim.
4. The sole Arbitrator, Justice (Retd.) Shri R.S. Jhala, thereafter
withdrew from the arbitration proceedings upon being appointed as a
member of the Rajasthan Human Rights Commission and informed the
same to this Court vide communication dated 16.01.2023. At that
stage, an application under Section 11(5) of the Act of 1996 came to be
filed by the appellants-claimants before this Court seeking appointment
of a fresh Arbitrator to continue the proceedings. Consequently, vide
order dated 18.08.2023 passed in S.B. Arbitration Application
No.6/2023, this Court allowed the said application and appointed Shri
N.N. Mathur, Judge (Retd.), as the learned Arbitrator to adjudicate the
disputes between the parties. For the sake of convenience, the order
dated 18.08.2023 is reproduced hereunder:-
“1. The instant arbitration application has been filed by the petitioner
under Section 11(5) of the Arbitration and Conciliation Act, 1996
claiming the following reliefs:-
“1. Appoint a Sole Arbitrator to adjudicate the disputes
and differences arising out of or in relation to the Sub
Lease Deed dated 09.04.2009 and;
2. Award costs of this application in favour of the
Applicant and against the Respondent: and
3. Pass such further and other order(s) and / or
direction(s) as this Hon’ble Court may deem fit and proper
in the facts and circumstances of the present case.”
2. Learned counsel for both the parties jointly submit that there is no
dispute with regard to the arbitration clause and the venue for arbitration
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proceedings, thus, learned counsels requested that an independent
arbitrator may be appointed, as a sole Arbitrator, to resolve the dispute
between the parties.
3. In light of such submission, this Court finds that the agreement clause,
relating to appointment of the Arbitrator, is required to be invoked and as
such, the application, filed by the applicant, is disposed of and while
exercising the power conferred under Section 11 of the Act of 1996,
appoints Hon’ble Shri Justice N.N. Mathur, (Rtd.) (Mobile
No.9829027701) resident of 34, Central School Scheme, Air Force
Area, Jodhpur, as the sole Arbitrator to adjudicate the dispute between
the parties. The payment of cost of arbitration proceedings and
arbitration fee shall be made as per the 4th Schedule appended to the Act
of 1996.
4. The intimation of appointment, as aforesaid, may be given by the
counsel for the parties as well as by the Registry to Hon’ble Shri Justice
N.N. Mathur. The above appointment is subject to necessary disclosure
being made under Section 12 of the Act of1996.
5. All pending applications stand disposed of.”
4.1 It is relevant to mention here that in the aforesaid consent order,
it has been specifically observed that there was no dispute with regard
to the arbitration clause and the venue of arbitration.
5. Post that, Shri N.N. Mathur, Judge (Retd.), while acting as the sole
Arbitrator, proceeded to adjudicate upon the claims and vide Arbitral
Award dated 31.07.2024, allowed the claim of the appellants-claimants
and dismissed the counter claim filed by the respondent-non-claimant.
Prior to passing of the aforesaid award, the learned Arbitrator had
framed the requisite issues for adjudication and vide order-sheet dated
12.07.2024, with the consent of both the parties, the period
commencing from 31.08.2023, i.e. the date on which the earlier
Arbitrator had informed this Court regarding his inability to continue
with the arbitration proceedings, up to 01.07.2023, i.e. the date on
which the communication was received by the subsequent sole
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Arbitrator Shri N.N. Mathur, Judge (Retd.) for undertaking the
arbitration proceedings, was ordered to be excluded for the purpose of
determining the period of the mandate of the learned Arbitrator.
6. It is the case of the appellants-claimants that thereafter, on
09.01.2025, they preferred Execution Petition No.02/2025 before the
learned Commercial Court. On the other hand, the respondent-non-
claimant filed objections under Section 34 of the Act of 1996 on
13.08.2025. During the pendency of the said objections, the
respondent-non-claimant voluntarily handed over possession of the
property in question to the appellants-claimants on 19.08.2025, which
fact came to be recorded in the order-sheet dated 19.08.2025 passed in
Execution Proceedings No.02/2025. Subsequently, an application under
Section 29A of the Act of 1996 came to be filed before this Court
seeking extension of time for passing of the award, which application
remained pending for adjudication. In the meanwhile, the objections
filed by the respondent-non-claimant under Section 34 of the Act of
1996 came to be allowed by the learned Commercial Court, while
holding the award to be without jurisdiction and also having been
passed in violation of the timeline prescribed under Section 29A of the
Act of 1996.
7. Hence, the present Civil Miscellaneous Appeal has been filed by
the appellants-claimants.
Arguments on behalf of the learned counsel for the appellants-
claimants:-
8. Mr. Vikas Balia, Sr. Adv. assisted by Mr. Mrigraj Singh Rathore, Mr.
Anshuman Mohapatra and Mr. Praveen Singh Rathore, learned counsel
appearing for the appellants-claimants, submitted that insofar as the
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timeline relating to the mandate of the learned Arbitrator is concerned,
the same stood extended with the consent of the parties, inasmuch as,
the period from 16.01.2023 to 31.08.2023 was treated to be excluded.
It was further submitted that after the appointment of the new
Arbitrator on 18.08.2023, the award came to be passed on 31.07.2024,
i.e. within a period of one year. Learned Senior counsel thus submitted
that once the parties had given their consent for treating the period
from 16.01.2023 to 31.08.2023 as excluded for the purpose of
computation of limitation, the respondent-non-claimant could not
thereafter be permitted to resile from the same. He further submitted
that even assuming that such consent could not have been given by the
parties, an application under Section 29A of the Act of 1996 had already
been filed before this Court seeking extension of time, which application
was pending adjudication prior to passing of the order impugned by the
learned Commercial Court.
8.1 Learned Senior counsel referred to the judgment passed by the
Hon’ble Apex Court in the case of C. Velusamy v. K. Indhera,
reported in 2026 SCC OnLine SC 142, wherein the Hon’ble Apex
Court has held that even after passing of the award, an application
under Section 29A can be filed and till an order thereupon is passed,
the said award would remain unenforceable. However, the award in
question cannot be set aside merely on the ground of having been
rendered after expiry of the statutory period of 18 months as specified
under Section 29A of the Act of 1996.
8.2 As far as the issue of jurisdiction, he submitted that though
admittedly a certain part of the dispute fell within the domain of
adjudication by the learned Rent Tribunal, however, insofar as the claim
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for damages is concerned, the same was beyond the scope of
adjudication by the Rent Tribunal and the remedy available to the
parties in that regard was before the competent Civil Court.
8.3 Learned Senior counsel submitted that since there was a specific
arbitration clause contained in Clause 5(e) of the Sub-Lease Deed,
whereby the parties had agreed to settle their disputes through
arbitration, the appellants-claimants had rightly approached this Court
for appointment of an Arbitrator. He thus asserts that insofar as the
claim for damages is concerned, the Rent Tribunal had no jurisdiction
and, by no stretch of imagination, it can be said that one part of the
dispute would be adjudicated by one authority and the remaining part
by another Court. He further submitted that the claim was indivisible
and, therefore, the learned Arbitrator had the jurisdiction to adjudicate
upon the case in hand.
8.4 Learned Senior counsel further asserted that vide order dated
03.08.2022, a consent order was passed by this Court while deciding
the application under Section 11 of the Act of 1996, whereby both the
parties had agreed to get their disputes resolved through arbitration.
Not only this, even subsequently, while the application under Section
11(5) of the Act of 1996 was being decided, both the parties gave their
consent, pursuant whereto the newly appointed Arbitrator proceeded to
adjudicate upon the dispute and decided the claim. He further
submitted that the respondent himself had submitted to the jurisdiction
of the learned Arbitrator by filing a counter-claim and, moreover, no
objection whatsoever regarding either the appointment of the Arbitrator
or the proceedings being beyond the jurisdiction of the Arbitrator was
ever raised by the respondent before this Hon’ble Court while deciding
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the application under Section 11 of the Act of 1996 or before the
learned Arbitrator by way of an application under Section 16(2) of the
Act of 1996. He thus submitted that even thereafter no objection
whatsoever was raised with regard to the jurisdiction of the learned
Arbitrator to decide the dispute in hand or that the matter was liable to
be adjudicated by the Rent Tribunal and, therefore, the respondent had
waived his right to raise such objections at the appellate stage under
Section 34 of the Act of 1996. He submitted that the doctrine of waiver
and acquiescence would squarely apply in the present case.
8.5 Learned Senior counsel further submitted that insofar as Section
34 of the Act of 1996 is concerned, though under Section 34(2)(a)(ii),
one of the grounds for setting aside an award is that the arbitration
agreement is not valid under the law to which the parties have
subjected it, however, the same can be considered and agitated only
when such an objection has been raised under Section 16 of the Act of
1996. He submitted that the same is evident from a conjoint reading of
Sections 34(2)(a)(ii) and 16(6) of the Act of 1996, which permits a
challenge to such objections at the stage of proceedings under Section
34 of the Act of 1996. Put differently, learned Senior Counsel argued
that only in a case where an objection regarding the jurisdiction of the
learned Arbitral Tribunal has been raised and the same has been
decided against the person concerned, can such person take recourse to
Section 34(2)(a)(ii) of the Act of 1996, and not otherwise. He further
referred to Section 4 of the Act of 1996 to emphasize that once a party
has failed to raise any objection, such party shall be deemed to have
waived its right to raise objections with regard to the jurisdiction of the
learned Arbitrator. He thus submitted that the order impugned dated
25.02.2026 deserves to be quashed and set aside.
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8.6 In order to buttress his submissions, learned Senior counsel
placed reliance upon the judgments passed by the Hon’ble Apex Court
in the following cases:- (1)- Union of India v. Pam Development
Private Limited, reported in (2014) 11 SCC 366; (2)- M.P. Rural
Road Development Authority & Anr. v. L.G. Chaudhary Engineers
& Contractors, reported in (2018) 10 SCC 826, (3)- Gayatri Project
Limited v. Madhya Pradesh Road Development Corporation
Limited, reported in (2025) 10 SCC 750, (4)- Motilal Oswal
Financial Services Limited v. Santosh Cordeiro & Anr., reported in
(2026) 2 SCC 801, (5)- Sweta Construction v. Chhattisgarh State
Power Generation Company Limited, reported in (2024) 4 SCC 722,
and (6)- Sanjit Singh Salwan & Ors., v. Sardar Indrajit Singh
Salwan & Ors., reported in 2025 SCC OnLine SC 1697.
Arguments on behalf of the learned counsel for the respondent-
non-claimant:-
9. Au contraire, Mr. Vinish Mittal, along with Ms. Aditi Moad, learned
counsel appearing for the respondent-non-claimant, while supporting
the order impugned passed by the learned Commercial Court,
vehemently asserted that insofar as the issue of jurisdiction is
concerned, the same goes to the root of the matter and can be raised at
any stage of the proceedings. Learned counsel for the respondent-non-
claimant, while candidly admitting that no objection with regard to the
jurisdiction of the learned Arbitrator was ever raised during the course
of the arbitral proceedings, asserted that such an objection could even
be raised at the stage of execution, which, according to him, is evident
from the language employed under Section 34(2)(a)(ii) of the Act of
1996. He further submitted that the dispute in question was amenable
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to the exclusive jurisdiction of the Rent Tribunal in view of the
provisions of the Rajasthan Rent Control Act, 2001. He submitted that
as per Section 18 of the Act of 2001, the Rent Tribunal had exclusive
jurisdiction over the dispute in hand and, therefore, the award passed
by the learned Arbitrator was beyond his jurisdiction.
10. In order to buttress his submissions, learned counsel placed
reliance upon the judgments passed by the Hon’ble Apex Court in the
cases of Booz Allen And Hamilton Inc. v. SBI Home Finance
Limited & Ors., reported in (2011) 5 SCC 532 as well as Vidya
Drolia & Ors. v. Durga Trading Corporation, reported in (2021) 2
SCC 1, while particularly emphasizing the findings recorded in
paragraphs 79 and 80 of the latter judgment. Learned counsel further
referred to Sections 18 and 29 of the Act of 2001 to emphasize that
even the jurisdiction of the Civil Court stands specifically barred under
the provisions of the Act of 2001 and, in view of the exclusive
jurisdiction vested in the Rent Tribunal, the proceedings initiated for
appointment of the Arbitrator, as well as the arbitral proceedings
undertaken thereafter, were wholly without jurisdiction.
10.1 Learned counsel for the respondent-non-claimant further asserted
that even the order-sheet passed by the learned Arbitrator with regard
to exclusion of the period from 16.01.2023 till 31.08.2023, being
contrary to the provisions of law, cannot be acted upon. He thus
submitted that admittedly the award came to be passed beyond the
time prescribed for adjudication of the dispute under Section 29A of the
Act of 1996 and, therefore, the award cannot be acted upon and is a
nullity, which has rightly been set aside by the learned Commercial
Court.
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11. He thus prayed for dismissal of the instant appeal preferred by the
appellants-claimants.
Analysis & Reasoning:-
12. Prior to embarking upon the validity of the award, the order
impugned, as well as the issue relating to jurisdiction, this Court deems
it appropriate to frame the following questions for adjudication:-
Question No.1: Whether the dispute in question falls within the
domain of the exclusive jurisdiction of the Rent Tribunal?
Question No.2: Whether an objection with regard to arbitrability
of the dispute or the jurisdiction of the learned Arbitrator can be
permitted to be raised for the first time at the appellate stage
under Section 34 of the Act of 1996 or even at the stage of
execution, despite no such objection having been raised before
the learned Arbitrator under Section 16 of the Act of 1996, and if
so whether, in the facts and circumstances of the present case,
the doctrine of waiver would apply even with respect to the
issue of jurisdiction?
Question No.3: Whether post passing of the arbitral award, the
mandate of the learned Arbitrator can be extended under
Section 29A of the Act of 1996?
Question No.1:-
12.1 As far as Question No.1 is concerned, the provisions of Sections
18 and 29 of the Rajasthan Rent Control Act, 2001 would be relevant
for the answering the same. The Sections are as under:-
“18. Jurisdiction of Rent Tribunal. (1) Notwithstanding anything
contained in any other law for the time being in force, in the areas to
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between landlord and tenant and matters connected therewith and
ancillary thereto, filed under the provisions of this Act:
Provided that Rent Tribunal Shall, in deciding such petitions to which
provisions contained in Chapters II and III of this Act do not apply,
have due regard to the provisions of Transfer of Properties Act, 1882
(Act No. 4 of 1882) the Indian Contract Act, 1872 (Act No. 9 of 1872),
or any other substantive law applicable to such matter in the same
manner in which such law would have been applied had the dispute
been brought before a Civil Court by way of suit:
Provided further that nothing contained in this Act shall he deemed to
empower the Rent Tribunal to entertain it petition involving such
dispute between landlord and tenant to which provisions of the
Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act,
1964 (Act No. 2 of 1965) and the Rajasthan Premises (Requisition and
Eviction) Ordinance, 1949 apply.
(2) Where the petition only for recovery of unpaid rent or arrears of
rent is filed, the time schedule and procedure enumerated in Sec. 14
shall mutatis mutandis apply to such petition.
(3) Where the petition for recovery of possession is tiled in respect of
the premises or tenancies to which the provisions of Chapter II and III
of this Act do not apply, the time schedule and procedure enumerated
in Sec. 15 shall mutatis mutandis apply to such petition.
(4) A petition shall be instituted before the Rent Tribunal, within the
local limits of whose jurisdiction the premises is situated.
29. Act to have overriding effect.- The provisions of this Act shall
have effect notwithstanding anything inconsistent therewith contained
in any other Law for the time being in force or in any instrument
having effect by virtue of any Law other than this Act.”
12.2 A bare perusal of the aforesaid provisions reveals that insofar as
matters covered under the Act of 2001, where the Rent Tribunal is
functioning, the jurisdiction of the Civil Court has been specifically
barred. The proviso to Section 18(1) further clarifies that even disputes
arising under the Transfer of Property Act, 1882, the Indian Contract
Act, 1872, or any other substantive law applicable to the matter in
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question, shall also be adjudicated by the Rent Tribunal, as if the same
were pending before a Civil Court by way of a suit. Section 29 further
clarifies that the Act of 2001, being a special enactment, would override
the provisions of any other law for the time being in force in the event
of any inconsistency therewith.
12.3 A perusal of the claims raised as well as the issues decided by the
learned Arbitrator clearly reveals that the dispute in question pertained
to termination of tenancy, payment of outstanding rent, and damages.
The first two components of the claim would undoubtedly fall within the
scope of adjudication by the Rent Tribunal and, insofar as the claim for
damages is concerned, the same, being part of the claim arising out of
the contractual relationship between the parties under the Indian
Contract Act, 1872, would also fall within the scope of adjudication by
the Rent Tribunal in view of the proviso to Section 18(1) of the Act of
2001. Thus, the dispute in question was liable to be adjudicated
exclusively by the Rent Tribunal and was not capable of adjudication
through arbitration in view of the exclusive jurisdiction vested therein.
13. A learned Single Bench of this Court, in the case of M/s. Big
Shoppers Supermarket Pvt. Ltd. v. M/s. K.M. Trading and
Agencies Pvt. Ltd. [S.B. Arbitration Application No.49/2007],
decided on 29.08.2008, had the occasion to deal with an identical issue,
wherein an application under Section 11 of the Act of 1996 had been
filed for appointment of an Arbitrator in respect of a dispute falling
within the ambit of the Rajasthan Rent Control Act, 2001. This Court,
while considering Sections 18 and 29 of the Act of 2001, held that in
terms of Section 9 of the Act of 2001, satisfaction of the Rent Tribunal is
a sine qua non before ordering eviction of a tenant and such satisfaction
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of the Rent Tribunal cannot be substituted by the satisfaction recorded
by an Arbitrator. The learned Single Bench held as under:-
“6. A further look at the scheme of Rent Act demonstrates that
as per Section 9 the satisfaction of Rent Tribunal is necessary before
ordering eviction of the tenant. The satisfaction of Rent Tribunal
cannot be substantiated with that of the satisfaction of Arbitrator.
9. I am afraid, the Arbitrator cannot resolve as to whether the
respondent landlord is entitled to a decree for eviction or not under
Rent Act. It is only the Rent Tribunal, which has jurisdiction to pass
the decree for eviction.”
14. In a similar manner, in the case of The National Textile
Corporation (DP&R) & Anr. v. The Rent Control Appellate
Tribunal, Jaipur & Ors. [S.B. Civil Writ Petition No.8296/2009], a
learned Single Bench of this Court, vide judgment and order dated
13.04.2011, while considering a challenge to the order passed by the
Rent Tribunal as affirmed by the Appellate Rent Tribunal vis-à-vis the
existence of an arbitration clause in the lease deed, examined the issue
of jurisdiction to adjudicate the matter. While considering Sections 18
and 29 of the Rajasthan Rent Control Act, 2001, as well as Section 2(3)
of the Act of 1996, the learned Single Bench held that the Arbitration
and Conciliation Act, 1996 has not been given overriding effect over any
other law and that wherever jurisdiction of arbitration has been
expressly or impliedly excluded, the matter cannot be referred to
arbitration. The learned Single Bench held as under:-
“Bare reading of the aforesaid provision clarifies that the provisions
of the Act of 1996 has not been given overriding effect to any other
law where jurisdiction of the arbitration has been excluded. If the
provisions of section 18 of the Act of 2001 are looked into, a dispute
between landlord and tenant is given under exclusive jurisdiction of
the Rent Tribunal. Thus, question of repugnance does not exist in the
light of section 2(3) of the Act of 1996.”
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15. Furthermore, the Hon’ble Apex Court in the case of Booz Allen
And Hamilton Inc. (supra) had the occasion to examine the scope of
Sections 8, 11, 16 and 34(2)(b) of the Act of 1996 vis-à-vis the right of
trial in a mortgage suit for foreclosure or redemption of mortgaged
property by a Civil Court. The Hon’ble Apex Court held that though the
dispute in question was covered by an arbitration clause, the same
could not be adjudicated by an Arbitrator and was required to be
decided by the competent Civil Court, particularly as the reliefs claimed
in the suit were not divisible. While dealing with the issue of
“arbitrability”, the Hon’ble Apex Court observed that certain categories
of disputes are non-arbitrable in nature. The Hon’ble Apex Court held as
under:-
“36. The well recognized examples of non-arbitrable disputes are:
(i) disputes relating to rights and liabilities which give rise to or
arise out of criminal offences; (ii) matrimonial disputes relating to
divorce, judicial separation, restitution of conjugal rights, child
custody; (iii) guardianship matters; (iv) insolvency and winding
up matters; (v) testamentary matters (grant of probate, letters of
administration and succession certificate); and (vi) eviction or
tenancy matters governed by special statutes where the tenant
enjoys statutory protection against eviction and only the specified
courts are conferred jurisdiction to grant eviction or decide the
disputes.
37. It may be noticed that the cases referred to above relate to
actions in rem. A right in rem is a right exercisable against the
world at large, as contrasted from a right in personam which is an
interest protected solely against specific individuals. Actions in
personam refer to actions determining the rights and interests of
the parties themselves in the subject matter of the case, whereas
actions in rem refer to actions determining the title to property and
the rights of the parties, not merely among themselves but also
against all persons at any time claiming an interest in that
property. Correspondingly, judgment in personam refers to a
judgment against a person as distinguished from a judgment
against a thing, right or status and Judgment in rem refers to a
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judgment that determines the status or condition of property which
operates directly on the property itself. (Vide: Black’s Law
Dictionary).
38. Generally and traditionally all disputes relating to rights in
personam are considered to be amenable to arbitration; and all
disputes relating to rights in rem are required to be adjudicated by
courts and public tribunals, being unsuited for private arbitration.
This is not however a rigid or inflexible rule. Disputes relating to
sub-ordinate rights in personam arising from rights in rem have
always been considered to be arbitrable.”
15.1 In the present case, admittedly, under the Rajasthan Rent Control
Act, 2001, a tenant enjoys certain statutory protections and can be
evicted only on the grounds specified under Section 9 of the Act of 2001
and not otherwise.
16. This, coupled with the language employed under Sections 18 and
29 of the Act of 2001, leaves no manner of doubt that insofar as
disputes between landlord and tenant are concerned, including matters
ancillary thereto, neither the Civil Court nor any other authority would
have jurisdiction to adjudicate upon the same and such disputes are
liable to be decided exclusively by the Rent Tribunal in accordance with
the provisions of the Act of 2001. Thus, the dispute in question was
liable to be adjudicated only by the Rent Tribunal and was not
arbitrable. Question No.1 is decided accordingly.
Question No.2:-
17. As far as Question No.2 is concerned, this Court has already held
that the dispute in question was non-arbitrable and fell within the
exclusive jurisdiction of the Rent Tribunal. However, the further issue
which requires consideration is as to whether the respondent-non-
claimant, having failed to raise any objection with regard to jurisdiction
before the learned Arbitrator under Section 16 of the Act of 1996, can
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still be permitted to raise such an objection at the stage of proceedings
under Section 34 of the Act of 1996 or at the stage of execution of the
award. The Arbitration and Conciliation Act, 1996 is a special enactment
enacted with the avowed object of consolidating and amending the law
relating to domestic arbitration, international commercial arbitration,
enforcement of foreign arbitral awards, as well as conciliation and
matters connected therewith or incidental thereto.
18. The Act of 1996 came to be enacted after adoption of the
UNCITRAL Model Law on International Commercial Arbitration, 1985 by
the United Nations Commission on International Trade Law. India, being
a participant to the said Commission, adopted the said provisions with
certain modifications and, thereafter, the Arbitration and Conciliation
Act, 1996 came to be enacted, repealing the earlier Arbitration Act of
1940. The principal object of the Act of 1996 was to make the arbitral
process fair, efficient and capable of meeting the needs of arbitration,
while simultaneously minimizing the supervisory role of Courts in
arbitral proceedings.
18.1 Before delving into the issue relating to waiver and the scope of
challenge to the jurisdiction of the learned Arbitrator, it would be
apposite to refer to certain relevant provisions of the Act. Section 4 of
the Act of 1996 provides as under:-
“4. Waiver of right to object.–A party who knows that–
(a) any provision of this Part from which the parties may
derogate, or
(b) any requirement under the arbitration agreement, has not
been complied with and yet proceeds with the arbitration without
stating his objection to such non-compliance without undue delay
or, if a time limit is provided for stating that objection, within that
period of time, shall be deemed to have waived his right to so
object.”
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18.2 Section 11 of the Act of 1996, which deals with the appointment
of an Arbitrator, provides as under:-
“11. Appointment of arbitrators.–(1) A person of any nationality
may be an arbitrator, unless otherwise agreed by the parties. (2)
Subject to sub-section (6), the parties are free to agree on a
procedure for appointing the arbitrator or arbitrators.
(3) Failing any agreement referred to in sub-section (2), in an
arbitration with three arbitrators, each party shall appoint one
arbitrator, and the two appointed arbitrators shall appoint the
third arbitrator who shall act as the presiding arbitrator.
[(3A) If the appointment procedure in sub-section (3) applies and
— (a) a party fails to appoint an arbitrator within thirty days from
the receipt of a request to do so from the other party; or (b) the
two appointed arbitrators fail to agree on the third arbitrator
within thirty days from the date of their appointment, the
appointment shall be made, upon request of a party, by 1[the
Supreme Court or, as the case may be, the High Court or any
person or institution designated by such Court];
(5) Failing any agreement referred to in sub-section (2), in an
arbitration with a sole arbitrator, if the parties fail to agree on the
arbitrator within thirty days from receipt of a request by one party
from the other party to so agree the appointment shall be made,
upon request of a party, by 1[the Supreme Court or, as the case
may be, the High Court or any person or institution designated by
such Court].
(6) Where, under an appointment procedure agreed upon by the
parties,–
(a) a party fails to act as required under that
procedure; or
(b) the parties, or the two appointed arbitrators,
fail to reach an agreement expected of them under
that procedure; or
(c) a person, including an institution, fails to
perform any function entrusted to him or it under
that procedure,
a party may request 1[the Supreme Court or, as the case may be,
the High Court or any person or institution designated by such
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Court]to take the necessary measure, unless the agreement on the
appointment procedure provides other means for securing the
appointment.
2[(6A) The Supreme Court or, as the case may be, the High
Court, while considering any application under sub-section (4)
or sub-section (5) or sub-section (6), shall, notwithstanding any
judgment, decree or order of any Court, confine to the
examination of the existence of an arbitration agreement.
(6B) The designation of any person or institution by the Supreme
Court or, as the case may be, the High Court, for the purposes of
this section shall not be regarded as a delegation of judicial
power by the Supreme Court or the High Court.]
(7) A decision on a matter entrusted by sub-section (4) or sub-
section (5) or sub-section (6) to 3[the Supreme Court or, as the
case may be, the High Court or the person or institution
designated by such Court is final and no appeal including Letters
Patent Appeal shall lie against such decision].
4[(8) The Supreme Court or, as the case may be, the High Court
or the person or institution designated by such Court, before
appointing an arbitrator, shall seek a disclosure in writing from
the prospective arbitrator in terms of sub-section (1) of section
12, and have due regard to–
(a) any qualifications required for the arbitrator
by the agreement of the parties; and
(b) the contents of the disclosure and other
considerations as are likely to secure the
appointment of an independent and impartial
arbitrator.]
(9) In the case of appointment of sole or third arbitrator in an
international commercial arbitration, 5[the Supreme Court or
the person or institution designated by that Court] may appoint
an arbitrator of a nationality other than the nationalities of the
parties where the parties belong to different nationalities.
6[(10) The Supreme Court or, as the case may be, the High
Court, may make such scheme as the said Court may deem
appropriate for dealing with matters entrusted by sub-section (4)
or sub-section (5) or sub-section (6), to it.]
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(11) Where more than one request has been made under sub-
section (4) or sub-section (5) or sub-section (6) to the Chief
Justices of different High Courts or their designates, 7[different
High Courts or their designates, the High Court or its designate
to whom the request has been first made] under the relevant sub-
section shall alone be competent to decide on the request.
1[(12) (a) Where the matters referred to in sub-sections (4), (5),
(6), (7), (8) and sub-section (10) arise in an international
commercial arbitration, the reference to the “Supreme Court or,
as the case may be, the High Court” in those sub-sections shall
be construed as a reference to the “Supreme Court”; and (b)
Where the matters referred to in sub-sections (4), (5), (6), (7), (8)
and sub-section (10) arise in any other arbitration, the reference
to “the Supreme Court or, as the case may be, the High Court”
in those sub-sections shall be construed as a reference to the
“High Court” within whose local limits the principal Civil Court
referred to in clause (e) of sub-section (1) of section 2 is situate,
and where the High Court itself is the Court referred to in that
clause, to that High Court.]2[(13) An application made under this section for appointment
of an arbitrator or arbitrators shall be disposed of by the
Supreme Court or the High Court or the person or institution
designated by such Court, as the case maybe, as expeditiously as
possible and an endeavour shall be made to dispose of the
matter within a period of sixty days from the date of service of
notice on the opposite party.
(14) For the purpose of determination of the fees of the arbitral
tribunal and the manner of its payment to the arbitral tribunal,
the High Court may frame such rules as may be necessary, after
taking into consideration the rates specified in the Fourth
Schedule.
Explanation.–For the removal of doubts, it is hereby clarified
that this sub-section shall not apply to international commercial
arbitration and in arbitrations (other than international
commercial arbitration) in case where parties have agreed for
determination of fees as per the rules of an arbitral institution.]”
18.3 Section 16 of the Act of 1996, which deals with the competence of
the Arbitral Tribunal to rule on its own jurisdiction, provides as under:-
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[2026:RJ-JD:23604-DB] (23 of 56) [CMA-1277/2026]“16. Competence of arbitral tribunal to rule on its jurisdiction.
–(1) The arbitral tribunal may rule on its own jurisdiction,
including ruling on any objections with respect to the existence or
validity of the arbitration agreement, and for that purpose,–
(a) an arbitration clause which forms part of a
contract shall be treated as an agreement
independent of the other terms of the contract; and
(b) a decision by the arbitral tribunal that the
contract is null and void shall not entail ipso jure
the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction
shall be raised not later than the submission of the statement of
defence; however, a party shall not be precluded from raising
such a plea merely because that he has appointed, or
participated in the appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the scope of its
authority shall be raised as soon as the matter alleged to be
beyond the scope of its authority is raised during the arbitral
proceedings.
(4) The arbitral tribunal may, in either of the cases referred to in
sub-section (2) or sub-section (3), admit a later plea if it
considers the delay justified.
(5) The arbitral tribunal shall decide on a plea referred to in sub-
section (2) or sub-section (3) and, where the arbitral tribunal
takes a decision rejecting the plea, continue with the arbitral
proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral award may make an
application for setting aside such an arbitral award in
accordance with section 34.”
18.4 Section 34 of the Act of 1996, which provides for an application
for setting aside an arbitral award, reads as under:-
“34. Application for setting aside arbitral award.–(1) Recourse to a
Court against an arbitral award may be made only by an application
for setting aside such award in accordance with sub-section (2) and
sub-section (3).
(2) An arbitral award may be set aside by the Court only if–
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(a) the party making the application 1[establishes on the
basis of the record of the arbitral tribunal that]–
(i) a party was under some
incapacity, or
(ii) the arbitration agreement is not
valid under the law to which the
parties have subjected it or, failing
any indication thereon, under the law
for the time being in force; or
(iii) the party making the application
was not given proper notice of the
appointment of an arbitrator or of the
arbitral proceedings or was
otherwise unable to present his case;
or
(iv) the arbitral award deals with a
dispute not contemplated by or not
falling within the terms of the
submission to arbitration, or it
contains decisions on matters beyond
the scope of the submission to
arbitration: Provided that, if the
decisions on matters submitted to
arbitration can be separated from
those not so submitted, only that part
of the arbitral award which contains
decisions on matters not submitted to
arbitration may be set aside; or
(v) the composition of the arbitral
tribunal or the arbitral procedure
was not in accordance with the
agreement of the parties, unless such
agreement was in conflict with a
provision of this Part from which the
parties cannot derogate, or, failing
such agreement, was not in
accordance with this Part; or
(b) the Court finds that–
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(i) the subject-matter of the dispute is
not capable of settlement by
arbitration under the law for the time
being in force, or
(ii) the arbitral award is in conflict
with the public policy of India.
2[Explanation 1.–For the avoidance of any doubt, it is
clarified that an award is in conflict with the public policy
of India, only if,–
(i) the making of the award was
induced or affected by fraud or
corruption or was in violation of
section 75 or section 81; or
(ii) it is in contravention with the
fundamental policy of Indian law; or
(iii) it is in conflict with the most
basic notions of morality or justice.
Explanation 2.–For the avoidance of doubt, the test as to
whether there is a contravention with the fundamental
policy of Indian law shall not entail a review on the merits
of the dispute.]
3[(2A) An arbitral award arising out of arbitrations other
than international commercial arbitrations, may also be
set aside by the Court, if the Court finds that the award is
vitiated by patent illegality appearing on the face of the
award:
Provided that an award shall not be set aside merely on the
ground of an erroneous application of the law or by
reappreciation of evidence.](3) An application for setting aside may not be made after
three months have elapsed from the date on which the
party making that application had received the arbitral
award or, if a request had been made under section 33,
from the date on which that request had been disposed of
by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant
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[2026:RJ-JD:23604-DB] (26 of 56) [CMA-1277/2026]application within the said period of three months it may
entertain the application within a further period of thirty
days, but not thereafter.
(4) On receipt of an application under sub-section (1), the
Court may, where it is appropriate and it is so requested by
a party, adjourn the proceedings for a period of time
determined by it in order to give the arbitral tribunal an
opportunity to resume the arbitral proceedings or to take
such other action as in the opinion of arbitral tribunal will
eliminate the grounds for setting aside the arbitral award.
1[(5) An application under this section shall be filed by a
party only after issuing a prior notice to the other party
and such application shall be accompanied by an affidavit
by the applicant endorsing compliance with the said
requirement.
(6) An application under this section shall be disposed of
expeditiously, and in any event, within a period of one year
from the date on which the notice referred to in sub-section
(5) is served upon the other party.]”
18.5 A bare perusal of Section 4 of the Act of 1996 reveals that once a
party having knowledge that any provision of this part, from which the
parties may derogate, or any requirement under the arbitration
agreement, has not been complied with, nevertheless proceeds with the
arbitration without stating its objection, without undue delay or within
the prescribed period of time, such party shall be deemed to have
waived its right to raise such objection thereafter. Thus, the Act itself
contemplates that in the event of failure to raise an objection within the
stipulated time, a deeming fiction of waiver would operate against the
party concerned in relation to objections pertaining to jurisdiction or any
requirement under the arbitration agreement.
19. Needless to emphasize that the Arbitration and Conciliation Act,
1996 is divided into various Parts. Part I encompasses Sections 2 to 43
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[2026:RJ-JD:23604-DB] (27 of 56) [CMA-1277/2026]and, therefore, all the provisions referred to hereinabove fall within Part
I of the Act of 1996. Section 11 of the Act of 1996, which provides for
appointment of an Arbitrator, has repeatedly came for consideration
before the Hon’ble Apex Court with regard to the scope of adjudication
and the extent of powers exercisable at that stage. There existed a
cleavage of opinion with respect to the scope of adjudication under
Sections 8 and 11 of the Act of 1996, which ultimately came to be
settled by the Constitution Bench’s judgment of the Hon’ble Apex Court
in the case of SBP & Company v. Patel Engineering Ltd., reported
in (2005) 8 SCC 618. The Hon’ble Apex Court, while emphasizing that
Sections 8 and 11 are complementary in nature, held that under
Section 11 of the Act of 1996, the Hon’ble Chief Justice or his designate
would necessarily have to decide the question relating to jurisdiction for
appointment of an Arbitrator and, therefore, the competence to decide
such issue could not be doubted. It was further held that the Hon’ble
Chief Justice or his designate would determine what constituted an
arbitrable claim, a non-arbitrable claim, and a non-arbitrable subject
matter.
20. However, subsequent amendments introduced by way of the
Amendment Acts of 2015 and 2019 brought about substantial changes
to Section 11 of the Act of 1996. Thereafter, the scope of Section 11
again came up for consideration before the Hon’ble Apex Court and a
Three-Judge Bench of the Hon’ble Apex Court in the case of Vidya
Drolia (surpa) held as under:-
“154. Discussion under the heading “Who decides
Arbitrability?” can be crystallized as under:
154.1. Ratio of the decision in Patel Engineering Ltd. on the
scope of judicial review by the court while deciding an
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[2026:RJ-JD:23604-DB] (28 of 56) [CMA-1277/2026]amendments by Act 3 of 2016 (with retrospective effect from
23.10.2015) and even post the amendments vide Act 33 of 2019
(with effect from 09.08.2019), is no longer applicable.
154.2. Scope of judicial review and jurisdiction of the court under
Section 8 and 11 of the Arbitration Act is identical but extremely
limited and restricted.
154.3. The general rule and principle, in view of the legislative
mandate clear from Act 3 of 2016 and Act 33 of 2019, and the
principle of severability and competence-competence, is that the
arbitral tribunal is the preferred first authority to determine and
decide all questions of non-arbitrability. The court has been
conferred power of “second look” on aspects of non- arbitrability
post the award in terms of sub-clauses (i), (ii) or (iv) of Section
34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration
Act.
154.4. Rarely as a demurrer the court may interfere at the Section
8 or 11 stage when it is manifestly and ex facie certain that the
arbitration agreement is non- existent, invalid or the disputes are
non-arbitrable, though the nature and facet of non-arbitrability
would, to some extent, determine the level and nature of judicial
scrutiny. The restricted and limited review is to check and protect
parties from being forced to arbitrate when the matter is
demonstrably ‘non-arbitrable’ and to cut off the deadwood. The
court by default would refer the matter when contentions relating
to non-arbitrability are plainly arguable; when consideration in
summary proceedings would be insufficient and inconclusive;
when facts are contested; when the party opposing arbitration
adopts delaying tactics or impairs conduct of arbitration
proceedings. This is not the stage for the court to enter into a mini
trial or elaborate review so as to usurp the jurisdiction of the
arbitral tribunal but to affirm and uphold integrity and efficacy of
arbitration as an alternative dispute resolution mechanism.
155. Reference is, accordingly, answered.”
21. The Hon’ble Apex Court thus held that while deciding an
application under Section 11 of the Act of 1996, the Court is required to
apply a prima facie test with regard to the existence and validity of the
arbitration agreement and then, in cases involving debatable and
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disputable facts or where reasonably arguable grounds exist, the parties
would be at liberty to approach the Arbitral Tribunal for questioning its
jurisdiction as well as the arbitrability of the dispute. It was further
clarified that at the stage of proceedings under Section 34 of the Act of
1996, the Court has been conferred a limited power of “second look”
on the aspect of non-arbitrability after passing of the award. It is thus
clear that at the inception, i.e., at the stage of Section 11 of the Act of
1996, the Court would prima facie examine the existence of the
arbitration agreement as well as the issue of arbitrability before
appointing an Arbitrator and, thereafter, if at all any objection survives
with regard to the jurisdiction of the learned Arbitrator or the
arbitrability of the dispute, the parties are required to lay such
challenge before the learned Arbitral Tribunal itself.
22. Section 16 of the Act of 1996 is an exhaustive provision dealing
with the issue of jurisdiction and the competence of the Arbitral Tribunal
to rule upon its own jurisdiction. The said provision further stipulates
that an objection in this regard is required to be raised at the earliest
stage and not later than submission of the statement of defence.
However, discretion has also been conferred upon the Arbitral Tribunal
to permit such a plea to be raised at a later stage, if sufficient
justification exists therefor. Be that as it may, the Arbitral Tribunal has
been vested with the authority to decide upon its own jurisdiction while
adjudicating an application under Section 16 of the Act of 1996 and, in
the event any party remains aggrieved by such determination, a
remedy has been provided to challenge the same after passing of the
award at the stage of proceedings under Section 34 of the Act of 1996.
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23. The principle of Kompetenz/Kompetenz, which is a well-
recognized principle of German jurisprudence, forms the bedrock of
such power. The Hon’ble Apex Court in the case of Chloro Controls
(India) Pvt. Ltd. v. Severn Trent Water Purification Inc.,
reported in JT (2012) 10 SC 187, while dealing with the said
principle, held that the same has two facets, namely, positive and
negative. The positive facet envisages that even where there exists a
challenge to the existence or validity of the arbitration agreement, the
same would not debar the Arbitral Tribunal from proceeding with the
hearing and ruling upon its own jurisdiction and, if the Tribunal retains
jurisdiction and ultimately renders an award, the aggrieved party would
remain free to challenge the same under Section 34 of the Act of 1996.
The negative facet of the principle postulates that the Arbitrators are
entitled to be the first authority to determine questions relating to
jurisdiction, which determination would thereafter be subject to judicial
review by the Court at the stage of enforcement or challenge to the
arbitral award.
24. This, coupled with the provisions of Section 34 of the Act of 1996,
clearly reveals that, as held by the Hon’ble Apex Court in the case of
Vidya Drolia (supra), the power under Section 34 is essentially in the
nature of a “second look” on the aspect of non-arbitrability after passing
of the award and that the primary objection in this regard is required to
be raised before the Arbitral Tribunal itself. The expression “second
look” assumes considerable significance, particularly in light of the
language employed under Sections 34(2)(a)(ii) and 34(2)(b)(i) of the
Act of 1996. A perusal of the said provisions reveals that an arbitral
award may be set aside if the arbitration agreement itself is not valid
under the law to which the parties have subjected it or under the law
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for the time being in force, or where the subject matter of the dispute is
not capable of settlement by arbitration under the law for the time
being in force.
25. Thus, where an objection is raised before the Arbitral Tribunal
under Section 16 of the Act of 1996 with regard to the jurisdiction of
the Tribunal to undertake arbitral proceedings or concerning the
existence or validity of the arbitration agreement itself, and an order is
passed thereupon, the aggrieved party would thereafter be entitled to
raise such objections at the stage of proceedings under Section 34 in
terms of the aforesaid provisions. However, in the absence of any such
objection having been raised before the Arbitral Tribunal at the
appropriate stage, the party concerned cannot ordinarily be permitted
to raise such objections for the first time at a subsequent stage,
particularly in view of the doctrine of waiver embodied under Section 4
of the Act of 1996.
26. This Court shall now proceed to consider the various judgments
relied upon by learned counsel for the respective parties, as well as
other pronouncements of the Hon’ble Apex Court on the issue in
question. As far as the judgment in the case of Vidya Drolia (supra) is
concerned, considerable reliance has been placed thereupon by learned
counsel for the respondent-non-claimant; paragraphs 79 and 80 of the
said judgment, upon which heavy reliance has been placed by learned
counsel for the respondent-non-claimant, are reproduced as under:-
“79. Landlord-tenant disputes governed by the Transfer of
Property Act are arbitrable as they are not actions in rem but
pertain to subordinate rights in personam that arise from rights
in rem. Such actions normally would not affect third-party rights
or have erga omnes affect or require centralized adjudication. An
award passed deciding landlord-tenant disputes can be executed(Uploaded on 22/05/2026 at 01:54:05 PM)
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[2026:RJ-JD:23604-DB] (32 of 56) [CMA-1277/2026]and enforced like a decree of the civil court. Landlord-tenant
disputes do not relate to inalienable and sovereign functions of
the State. The provisions of the Transfer of Property Act do not
expressly or by necessary implication bar arbitration. Transfer of
Property Act, like all other Acts, has a public purpose, that is, to
regulate landlord- tenant relationships and the arbitrator would
be bound by the provisions, including provisions which enure and
protect the tenants.
80. In view of the aforesaid, we overrule the ratio laid down in
Himangni Enterprises and hold that landlord-tenant disputes are
arbitrable as the Transfer of Property Act does not forbid or
foreclose arbitration. However, landlord-tenant disputes covered
and governed by rent control legislation would not be arbitrable
when specific court or forum has been given exclusive
jurisdiction to apply and decide special rights and obligations.
Such rights and obligations can only be adjudicated and enforced
by the specified court/forum, and not through arbitration.”
26.1 The emphasis on adjudication of landlord-tenant rights by the
special Courts/Tribunals created under the statute is no longer res
integra and this Court has already held, while deciding Question No.1,
that the dispute in question was non-arbitrable. However, the question
which now falls for consideration is as to at what stage the issue of
arbitrability can be raised. For that purpose, it would be relevant to
refer to certain observations made by the Hon’ble Apex Court in the
case of Vidya Drolia (supra), which read as under:-
“129. Principles of competence-competence have positive and
negative connotations. As a positive implication, the arbitral
tribunals are declared competent and authorised by law to rule as
to their jurisdiction and decide non-arbitrability questions. In
case of expressed negative effect, the statute would govern and
should be followed. Implied negative effect curtails and
constrains interference by the court at the referral stage by
necessary implication in order to allow the arbitral tribunal to
rule as to their jurisdiction and decide non-arbitrability
questions. As per the negative effect, courts at the referral stage
are not to decide on merits, except when permitted by the(Uploaded on 22/05/2026 at 01:54:05 PM)
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[2026:RJ-JD:23604-DB] (33 of 56) [CMA-1277/2026]legislation either expressly or by necessary implication, such
questions of non-arbitrability. Such prioritisation of arbitral
tribunal over the courts can be partial and limited when the
legislation provides for some or restricted scrutiny at the ‘first
look’ referral stage. We would, therefore, examine the principles
of competence-competence with reference to the legislation, that
is, the Arbitration Act.
130. Section 16(1) of the Arbitration Act accepts and empowers
the arbitral tribunal to rule on its own jurisdiction including a
ruling on the objections, with respect to all aspects of non-
arbitrability including validity of the arbitration agreement. A
party opposing arbitration, as per sub-section (2), should raise
the objection to jurisdiction of the tribunal before the arbitral
tribunal, not later than the submission of statement of defence.
However, participation in the appointment procedure or
appointing an arbitrator would not preclude and prejudice any
party from raising an objection to the jurisdiction. Obviously, the
intent is to curtail delay and expedite appointment of the arbitral
tribunal. The clause also indirectly accepts that appointment of an
arbitrator is different from the issue and question of jurisdiction
and non-arbitrability. As per sub-section (3), any objection that
the arbitral tribunal is exceeding the scope of its authority should
be raised as soon as the matter arises. However, the arbitral
tribunal, as per sub-section (4), is empowered to admit a plea
regarding lack of jurisdiction beyond the periods specified in sub-
section (2) and (3) if it considers that the delay is justified. As per
the mandate of sub-section (5) when objections to the jurisdiction
under sub-sections (2) and (3) are rejected, the arbitral tribunal
can continue with the proceedings and pass the arbitration
award. A party aggrieved is at liberty to file an application for
setting aside such arbitral award under Section 34 of the
Arbitration Act. Sub-section (3) to Section 8 in specific terms
permits an arbitral tribunal to continue with the arbitration
proceeding and make an award, even when an application under
sub-section (1) to Section 8 is pending consideration of the
court/forum. Therefore, pendency of the judicial proceedings even
before the court is not by itself a bar for the arbitral tribunal to
proceed and make an award. Whether the court should stay
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[2026:RJ-JD:23604-DB] (34 of 56) [CMA-1277/2026]tribunal are distinctly different aspects and not for us to elaborate
in the present reference.
131. Section 34 of the Act is applicable at the third stage post the
award when an application is filed for setting aside the award.
Under Section 34, an award can be set aside – (i) if the
arbitration agreement is not valid as per law to which the party is
subject; (ii) if the award deals with the disputes not contemplated
by or not falling within the submission to arbitration, or contains
a decision on the matter beyond the scope of submission to
arbitration; and (iii) when the subject matter of the dispute is not
capable of settlement by arbitration under the law for the time
being in force. Thus, the competence – competence principle, in its
negative effect, leaves the door open for the parties to challenge
the findings of the arbitral tribunal on the three issues. The
negative effect does not provide absolute authority, but only a
priority to the arbitral tribunal to rule the jurisdiction on the
three issues. The courts have a ‘second look’ on the three aspects
under Section 34 of the Arbitration Act.
132. The courts at the referral stage do not perform ministerial
functions. They exercise and perform judicial functions when they
decide objections in terms of Sections 8 and 11 of the Arbitration
Act. Section 8 prescribes the courts to refer the parties to
arbitration, if the action brought is the subject of an arbitration
agreement, unless it finds that prima facie no valid arbitration
agreement exists. Examining the term ‘prima facie’, in Nirmala J.
Jhala v. State of Gujarat and Another,69 this Court had noted:
“48. A prima facie case does not mean a case
proved to the hilt but a case which can be said to
be established if the evidence which is led in
support of the case were [to be] believed. While
determining whether a prima facie case had been
made out or not the relevant consideration is
whether on the evidence led it was possible to
arrive at the conclusion in question and not
whether that was the only conclusion which could
be arrived at on that evidence.”
134. Prima facie examination is not full review but a primary
first review to weed out manifestly and ex facie non-existent and
invalid arbitration agreements and non-arbitrable disputes. The
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[2026:RJ-JD:23604-DB] (35 of 56) [CMA-1277/2026]
prima facie review at the reference stage is to cut the deadwood
and trim off the side branches in straight forward cases where
dismissal is barefaced and pellucid and when on the facts and
law the litigation must stop at the first stage. Only when the court
is certain that no valid arbitration agreement exists or the
disputes/subject matter are not arbitrable, the application under
Section 8 would be rejected. At this stage, the court should not
get lost in thickets and decide debatable questions of facts.
Referral proceedings are preliminary and summary and not a
mini trial. This necessarily reflects on the nature of the
jurisdiction exercised by the court and in this context, the
observations of B.N. Srikrishna, J. of ‘plainly arguable’ case in
Shin-Etsu Chemical Co. Ltd. are of importance and relevance.
Similar views are expressed by this Court in Vimal Kishore Shah
wherein the test applied at the pre-arbitration stage was whether
there is a “good arguable case” for the existence of an
arbitration agreement.
138. In the Indian context, we would respectfully adopt the three
categories in Boghara Polyfab Private Limited. The first
category of issues, namely, whether the party has approached the
appropriate High Court, whether there is an arbitration
agreement and whether the party who has applied for reference is
party to such agreement would be subject to more thorough
examination in comparison to the second and third
categories/issues which are presumptively, save in exceptional
cases, for the arbitrator to decide. In the first category, we would
add and include the question or issue relating to whether the
cause of action relates to action in personam or rem; whether the
subject matter of the dispute affects third party rights, have erga
omnes effect, requires centralized adjudication; whether the
subject matter relates to inalienable sovereign and public interest
functions of the State; and whether the subject matter of dispute
is expressly or by necessary implication non-arbitrable as per
mandatory statue(s). Such questions arise rarely and, when they
arise, are on most occasions questions of law. On the other hand,
issues relating to contract formation, existence, validity and non-
arbitrability would be connected and intertwined with the issues
underlying the merits of the respective disputes/claims. They
would be factual and disputed and for the arbitral tribunal to
decide.”
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[2026:RJ-JD:23604-DB] (36 of 56) [CMA-1277/2026]
26.2 A bare perusal of the aforesaid paragraphs reveals that insofar as
the issue of non-arbitrability of the dispute is concerned, a prima facie
examination thereof is required to be undertaken by the High Court
itself at the pre-reference stage while deciding an application under
Section 11 of the Act of 1996 and, thereafter, any further objection in
this regard is required to be raised before the Arbitral Tribunal under
Section 16 of the Act of 1996. Section 34 constitutes the third stage in
the statutory scheme and operates in sequence to the second stage,
namely, adjudication of objections under Section 16 of the Act of 1996.
This appears to be the reason why the Hon’ble Apex Court, while
describing the scope of powers under Section 34 of the Act of 1996,
employed the expression “second look” with regard to the objections so
raised and not a “first look”. In other words, where the parties have
waived their right to raise objections at the stages contemplated under
Sections 11 and 16 of the Act of 1996, they would ordinarily stand
precluded from raising such objections for the first time under Section
34 of the Act of 1996. The aforesaid principle of waiver is also in
consonance with the provisions contained under Section 4 of the Act of
1996.
27. Thus, the judgment passed by the Hon’ble Apex Court in the case
of Vidya Drolia (supra) is of limited assistance to the respondent-non-
claimant in the facts of the present case. Not only this, to a certain
extent, the observations made in Vidya Drolia (supra) came to be
explained by the Constitution Bench of the Hon’ble Apex Court in the
case of In Re: Interplay between Arbitration Agreements under
the Arbitration and Conciliation Act, 1996 and the Indian Stamp
Act, 1899, reported in (2024) 6 SCC 1. The Hon’ble Apex Court
observed that the judgment in Vidya Drolia (supra) had proceeded on
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[2026:RJ-JD:23604-DB] (37 of 56) [CMA-1277/2026]
the assumption that Section 11(6A) of the Act of 1996 stood omitted,
whereas in fact no notification bringing such omission into force had
been issued by the Central Government and, therefore, Section 11(6A)
continued to remain operative. The Hon’ble Apex Court held as under:-
“162. Vidya Drolia³ proceeds on the presumption that Section
11(6-A) was effectively omitted from the statute books by the
2019 Amendment Act. This is also reflected in the conclusion
arrived at by the Court, as is evident from the following extract:
“154…. 154.1. Ratio of the decision in Patel Engg.
on the scope of judicial review by the Court while
deciding an application under Sections 8 or 11 of the
Arbitration Act, post the amendments by Act 3 of
2016 (with retrospective effect from 23-10-2015) and
even post the amendments vide Act 33 of 2019 (with
effect from 9-8-2019), is no longer applicable.”
(emphasis supplied).
163. We are of the opinion that the above premise of the Court in
Vidya Drolia³ is erroneous because the omission of Section 11(6-
A) has not been notified and, therefore, the said provision
continues to remain in full force. Since Section 11(6-A) continues
to remain in force, pending the notification of the Central
Government, it is incumbent upon this Court to give true effect to
the legislative intent..
164. The 2015 Amendment Act has laid down different
parameters for judicial review under Section 8 and Section 11.
Where Section 8 requires the Referral Court to look into the
prima facie existence of a valid arbitration agreement, Section 11
confines the Court’s jurisdiction to the examination of the
existence of an arbitration agreement. Although the object and
purpose behind both Sections 8 and 11 is to compel parties to
abide by their contractual understanding, the scope of power of
the Referral Courts under the said provisions is intended to be
different. The same is also evident from the fact that Section 37 of
the Arbitration Act allows an appeal from the order of an Arbitral
Tribunal refusing to refer the parties to arbitration under Section
8, but not from Section 11. Thus, the 2015 Amendment Act has
legislatively overruled the dictum of Patel Engg. 129 where it
was held that Section 8 and Section 11 are complementary in
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[2026:RJ-JD:23604-DB] (38 of 56) [CMA-1277/2026]
nature. Accordingly, the two provisions cannot be read as laying
down a similar standard..
165. The legislature confined the scope of reference under
Section 11(6-A) to the examination of the existence of an
arbitration agreement. The use of the term “examination” in
itself connotes that the scope of the power is limited to 9 a prima
facie determination. Since the Arbitration Act is a self-contained
code, the requirement of “existence” of an arbitration agreement
draws effect from Section 7 of the Arbitration Act. In Duro
Felguera 132, this Court held that the Referral Courts only need
to consider one aspect to determine the existence arbitration
agreement which provides for arbitration pertaining to the
disputes of an arbitration agreement whether the underlying
contract contains an which have arisen between the parties to
the agreement. Therefore, the scope of examination under
Section 11(6-A) should be confined to the existence of
requirement of formal validity such as the requirement that the
agreement be in of an arbitration agreement on the basis of
Section 7. Similarly, the validity of an arbitration agreement, in
view of Section 7, should be restricted to the competence by
leaving the issue of substantive existence and validity of an
writing. This interpretation also gives true effect to the doctrine
of competence. accordingly clarify the position of law laid down
in Vidya Drolia’ in the context arbitration agreement to be
decided by Arbitral Tribunal under Section 16. We d of Section 8
and Section 11 of the Arbitration Act..”
27.1 Even otherwise, going by what has been laid down in the
judgment of Vidya Drolia (supra), it is evident that the ratio of the said
judgment principally concerns the scope of examination regarding
arbitrability at the pre-reference stage, namely, the interplay between
Sections 8 and 11 of the Act of 1996. The said judgment does not
specifically deal with the doctrine or concept of waiver in the context of
failure to raise objections under Section 16 of the Act of 1996.
28. As far as the doctrine of waiver under the Act of 1996 is
concerned, there exists a catena of judgments of the Hon’ble Apex
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[2026:RJ-JD:23604-DB] (39 of 56) [CMA-1277/2026]
Court dealing with the said principle. Reference in this regard may be
made to the judgment of the Hon’ble Apex Court in the case of Bharat
Sanchar Nigam Limited & Anr. v. Motorola India Private Limited,
reported in (2009) 2 SCC 337. The Hon’ble Apex Court, while dealing
with Section 4 of the Act of 1996, held as under:-
“39. Pursuant to section 4 of the Arbitration and Conciliation Act,
1996, a party who knows that a requirement under the arbitration
agreement has not been complied with and still proceeds with the
arbitration without raising an objection, as soon as possible, waives
their right to object. The High Court had appointed an arbitrator in
response to the petition filed by the appellant. At this point, the matter
was closed unless further objections were to be raised. If further
objections were to be made after this order, they should have been
made prior to the first arbitration hearing. But the appellant had not
raised any such objections. The appellant therefore had clearly failed
to meet the stated requirement to object to arbitration without delay.
As such their right to object is deemed to be waived.”
28.1 The Hon’ble Apex Court held that where a party, despite being
fully aware that the requirements under the Arbitration and Conciliation
Act, 1996 had not been complied with, nevertheless proceeds with the
arbitral proceedings without raising any objection, such party would be
deemed to have waived its right to raise such objection at any
subsequent stage of the proceedings.
29. The Hon’ble Apex Court thereafter, in the case of Booz Allen And
Hamilton Inc. (supra), while dealing extensively with Sections 8, 11
and 16 of the Act of 1996, elaborately considered the scope and ambit
of the aforesaid provisions. The Hon’ble Apex Court, while framing
various questions for adjudication, held that where a party submits
itself to the jurisdiction of the Court concerned and fails to file an
application under Section 8 of the Act of 1996 at the appropriate stage,
such party would be deemed to have waived its right to subsequently
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[2026:RJ-JD:23604-DB] (40 of 56) [CMA-1277/2026]
challenge the jurisdiction of the Court concerned. The Hon’ble Apex
Court held as under:-
“29. Though section 8 does not prescribe any time limit for filing
an application under that section, and only states that the
application under section 8 of the Act should be filed before
submission of the first statement on the substance of the dispute,
the scheme of the Act and the provisions of the section clearly
indicate that the application thereunder should be made at the
earliest. Obviously, a party who willingly participates in the
proceedings in the suit and subjects himself to the jurisdiction of
the court cannot subsequently turn round and say that the parties
should be referred to arbitration in view of the existence of an
arbitration agreement. Whether a party has waived his right to
seek arbitration and subjected himself to the jurisdiction of the
court, depends upon the conduct of such party in the suit.”
29.1 Though the provision under consideration in the aforesaid case
was Section 8 of the Act of 1996 and the principle was applied in the
converse situation, namely, where a party, having waived its right to
seek arbitration, was held bound by such waiver, however the
underlying doctrine of waiver would equally apply to the facts of the
present case.
30. The Hon’ble Apex Court thereafter, in the case of Union of India
v. Pam Development Private Limited (supra), while dealing with a
construction agreement and the scope of arbitral proceedings arising
therefrom, held as under:-
“18. In our opinion, the High Court has correctly come to the
conclusion that the appellant having failed to raise the plea of
jurisdiction before the Arbitral Tribunal cannot be permitted to raise
for the first time in the Court. Earlier also, this Court had occasion to
consider a similar objection in Bharat Sanchar Nigam Limited and
another versus Motorola India Private Limited [(2009) 2 SCC 337].
Upon consideration of the provisions contained in Section 4 of the
Arbitration Act, 1996, it has been held as follows:
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[2026:RJ-JD:23604-DB] (41 of 56) [CMA-1277/2026]“39. Pursuant to section 4 of the Arbitration and
Conciliation Act, 1996, a party which knows that a
requirement under the arbitration agreement has not been
complied with and still proceeds with the arbitration
without raising an objection, as soon as possible, waives
their right to object. The High Court had appointed an
arbitrator in response to the petition filed by the
appellants (sic respondent). At this point, the matter was
closed unless further objections were to be raised. If
further objections were to be made after this order, they
should have been made prior to the first arbitration
hearing. But the appellants had not raised any such
objections. The appellants therefore had clearly failed to
meet the stated requirement to object to arbitration
without delay. As such their right to object is deemed to be
waived.”
30.1 The Hon’ble Apex Court thus referred to Section 4 of the Act of
1996 and held that where a party fails to raise any objection with
regard to the arbitral proceedings being undertaken and participates
therein without protest, such party would thereafter be estopped from
subsequently raising objections in that regard, in view of the doctrine of
waiver and estoppel.
31. The Hon’ble Apex Court thereafter, in the case of M.P. Rural
Road Development Authority & Anr. v. L.G. Choudhary Engineers
& Contractors (supra), while considering the provisions of the M.P.
Arbitration Act, held that even where there exists an expressed
statutory bar against undertaking arbitration otherwise than in
accordance with the provisions of the State enactment, if arbitral
proceedings are nevertheless initiated under the Central Act and no
objection in that regard is raised at the appropriate stage, the non-
claimant would be estopped from subsequently raising such objection
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and the arbitral award cannot be annulled on that ground alone. The
Hon’ble Apex Court held as under:-
“17. We do not express any opinion on the applicability of the State
Act where award has already been made. In such cases if no
objection to the jurisdiction of the arbitration was taken at relevant
stage, the award may not be annulled only on that ground.”
32. The Hon’ble Apex Court in the case of Quippo Construction
Equipment Limited v. Janardan Nirman Private Limited, reported
in (2020) 18 SCC 277, while dealing with the provisions of Sections 4,
16 and 34 of the Act of 1996 in the context of an agreement relating to
hiring of infrastructure development equipment, held as under:-
“24. It was possible for the respondent to raise submissions that
arbitration pertaining to each of the agreements be considered and
dealt with separately. It was also possible for him to contend that
in respect of the agreement where the venue was agreed to be at
Kolkata, the arbitration proceedings be conducted accordingly.
Considering the facts that the respondent failed to participate in
the proceedings before the Arbitrator and did not raise any
submission that the Arbitrator did not have jurisdiction or that he
was exceeding the scope of his authority, the respondent must be
deemed to have waived all such objections.”
33. The Hon’ble Apex Court thereafter, in the case of Sweta
Construction v. Chhattisgarh State Power Generation Company
Limited (supra), while again dealing with the provisions of the M.P.
State Arbitration Act vis-à-vis Section 34 of the Act of 1996, held as
under:-
“18. We are also of the view that in particular facts of the present
case, the position is even more gross because when the appellant
claimed arbitration, the respondent accepted invocation of
arbitration, suggested a panel of Arbitrators, the appellant chose
one of the Arbitrators out of the two suggested and the Arbitrator
was so appointed as the sole Arbitrator. Thus, the arbitration
proceedings commenced in pursuance to the acts of the respondent
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[2026:RJ-JD:23604-DB] (43 of 56) [CMA-1277/2026]process was gone through because of some misconception or
inappropriate legal advice. Arbitration by consent is always
possible. The mode and manner of conduct of arbitration is
possible and how those arbitration proceedings would be governed
is also a matter of consent. If at all there were any rights of the
respondent to have claimed arbitration under the Adhiniyam, that
right was never exercised or waived. The respondent cannot be
permitted to approbate and reprobate and that too in arbitration
proceedings and that too in dispute or resolution through the
method of arbitration defeating the very purpose of an alternative
dispute resolution to arbitration as an expeditious remedy.”
33.1 The Hon’ble Apex Court specifically observed that once the
respondent-non-claimant had accepted the jurisdiction of the Arbitral
Tribunal, such party could not thereafter be permitted to approbate and
reprobate during the course of arbitral proceedings, as the same would
defeat the very object of alternative dispute resolution through
arbitration, which is intended to provide an expeditious remedy. The
Hon’ble Apex Court took into consideration the fact that the respondent-
non-claimant had accepted the panel of Arbitrators and, having
participated in the arbitral proceedings after commencement thereof
without raising any objection, had consequently waived its right to
challenge the same at a subsequent stage.
34. The Hon’ble Apex Court recently, in the case of Gayatri Project
Limited v. Madhya Pradesh Road Development Corporation
Limited (supra), while again considering the interplay between
Sections 11, 16 and 34 of the Act of 1996, framed two questions for
adjudication in paragraph 25 of the judgment and held that where no
application under Section 16 of the Act of 1996 has been filed
challenging the jurisdiction of the learned Arbitrator, the respondent-
non-claimant would be precluded from subsequently laying a challenge
to the same at a later stage. The Hon’ble Apex Court held as under:-
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[2026:RJ-JD:23604-DB] (44 of 56) [CMA-1277/2026]“64. What emerges from the foregoing is that although Lion
Engineering (supra) affirms that a plea of lack of jurisdiction,
being a question of law, may be raised for the first time under
Section 34 of the Act, 1996, yet such a plea is nevertheless subject
to the waiver as held in Pam Development (supra). Furthermore,
as per Gas Authority of India (supra), such a plea may only be
entertained if the party demonstrates a strong and sufficient
reason for not raising it before the arbitral tribunal. However,
L.G. Chaudhary (II) (supra) makes it clear that a failure to raise
the issue of applicability of the MP Act, 1983 at the appropriate
stage cannot be regarded as a sufficient reason, and therefore the
plea cannot be permitted at the stage of Section 34 proceedings.”
34.1 The Hon’ble Apex Court emphasized that though a plea pertaining
to lack of jurisdiction, being a pure question of law, may in certain
circumstances be permitted to be raised for the first time under Section
34 of the Act of 1996, nevertheless such a plea would remain subject to
the doctrine of waiver. The Hon’ble Apex Court further held that such a
plea can be entertained only where the party concerned is able to
demonstrate strong and sufficient reasons for not having raised the
objection earlier before the Arbitral Tribunal.
35. The Hon’ble Apex Court thereafter, in the case of Sanjit Singh
Salwan & Ors. v. Sardar Indrajit Singh Salwan & Ors. (supra),
while dealing with the doctrines of estoppel and waiver in arbitral
proceedings and placing heavy reliance upon the judgment of the
Hon’ble Apex Court in the case of Dhiyan Singh v. Jugal Kishore,
reported in (1952) 1 SCC 184, held that even where arbitral
proceedings are alleged to be without jurisdiction, the issue of invalidity
of the award, though involving a question of law, cannot be considered
de hors the conduct of the parties. The Hon’ble Apex Court further held
that where the parties have consciously waived their right to challenge
the jurisdiction of the Arbitral Tribunal and have participated in the
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[2026:RJ-JD:23604-DB] (45 of 56) [CMA-1277/2026]proceedings without objection, they would remain bound by their
conduct and cannot subsequently be permitted to wriggle out of the
same. The Hon’ble Apex Court held as under:-
“17. We would now deal with the contention of the respondents that
the award as passed by the sole arbitrator was a nullity since it dealt
with issues that fell within the purview of Section 92 of the Code. The
invalidity of the award could thus be set up at any stage to prevent its
execution and that there could be no estoppel against law. This plea
as raised by the respondents found favour with the Commercial Court
as well as the High Court.
The contention though attractive cannot enable the respondents the
surmount the equitable hurdle of estoppel. Having lulled the
appellants in having the disputes resolved through arbitration and
thereafter seeking disposal of their appeal on the strength of the said
award, the respondents are definitely estopped from now setting up its
invalidity. The issue is more about estoppel by conduct and election
rather than estoppel in law.
In Dhiyan Singh and another v. Jugal Kishore and another, AIR 1952
SC 145, a family dispute in relation to certain ancestral and self-
acquired properties was sought to be resolved through arbitration.
Before the Courts it was urged that not only had the arbitrator
travelled beyond the terms of his reference by awarding absolute
interest in the property to one party when she had limited interest
therein, it was also urged that on factual aspects also he was
incorrect. It was however found that the other party had accepted the
award and by such conduct had induced the former party from parting
with a share in her property.
Vivian Bose, J. (as his Lordship then was) held as under:
“It was urged, among other things, that the arbitrator
had travelled beyond the terms of his reference in
awarding Mst. Mohan Dei an absolute interest. It was
also urged that even if Brijlal was bound, his son
Kishan Lal, who did not claim through him but who
had an independent title as reversioner to Shanker Lal,
would not be bound, and it was contended that if
Kishan Lal was not bound, the plaintiffs would not be
either. But we need not examine these points because
we do not need to proceed on the binding nature of(Uploaded on 22/05/2026 at 01:54:05 PM)
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[2026:RJ-JD:23604-DB] (46 of 56) [CMA-1277/2026]the award. Even if the award be invalid we are of the
opinion that the plaintiffs’ claim is completely
answered by the plea of estoppel.
Now it can be conceded that before an estoppel can
arise, there must be, first, a representation of an
existing fact as distinct from a mere promise de futuro
made by one party to the other; second, that the other
party, believing it, must have been induced to act on the
faith of it; and third, that he must have so acted to his
detriment.
It is true that in one sense a question of title is one of
law and it is equally true that there can be no estoppel
on a question of law. But every question of law must be
grounded on facts and when Brijlal’s conduct is
analysed it will be found to entail an assertion by him
that he admitted and recognised facts which would in
law give Mst. Mohan Dei an absolute interest in the
lands awarded to her. It was because of that assertion
of fact, namely, his recognition and admission of the
existence of facts which would give Mst. Mohan Dei an
absolute interest, that she was induced to part with
about one-third of the property to which Brijlal, on a
true estimate of the facts as now known, had no right.
There can be no doubt that she acted to her detriment
and there can, we think, be equally no doubt that she
was induced to do so on the faith of Brijlal’s statements
and conduct which induced her to believe that he
accepted all the implications of the award. But in any
event, we are clear that Brijlal would have been
estopped. The nature of the dispute and the description
of it given in the award show that there was
considerable doubt, and certainly much dispute, about
the true state of affairs. Even if the arbitrator was
wholly wrong and even if he had no power to decide
as he did, it was open to both sides to accept the
decision and by their acceptance recognise the
existence of facts which would in law give the other
an absolute estate in the properties they agreed to
divide among themselves and did divide. That, in our
opinion, is a representation of an existing fact or set(Uploaded on 22/05/2026 at 01:54:05 PM)
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[2026:RJ-JD:23604-DB] (47 of 56) [CMA-1277/2026]of facts. Each would consequently be estopped as
against the other and Brijlal in particular would have
been estopped from denying the existence of facts
which would give Mst. Mohan Dei an absolute
interest in the suit property.”
(Emphasis supplied by us)
18. In our view, the ratio of the aforesaid decision is a complete
answer to the defence raised by the respondents on the plea of
estoppel against law. It is only because the respondents consented to
have the disputes resolved through the arbitration of Mr. Vipin Sodhi
that the compromise deed was executed and the respondents’ appeal
was disposed of accordingly. The appellants thereafter acted in
accordance with the terms of the consent deed and altered their
position to their detriment. They took steps to withdraw the First
Information Report and also parted with substantial amounts as
required by the consent deed. All these facts are sufficient to hold that
after the parties accepted the consent deed, the appellants acted in
accordance with its terms and altered their position. The respondents
thus by their conduct of accepting the compromise deed based on the
award of the arbitrator are now precluded from questioning its
validity. As held in Dhiyan Singh (supra), the issue of invalidity of
the award, as a question of law, cannot be considered de hors the
conduct of parties. In these facts, the ratio of decisions relied upon
by the respondents do not further their case. Hence, this contention of
the respondents fails.
19. We therefore find that on the doctrine of estoppel by conduct and
election the respondents cannot be permitted to now raise a plea that
the compromise deed based on the award dated 30.12.2022 was a
nullity in view of the provisions of Section 92 of the Code. On this
count, we do not deem it necessary to go into the legality of the
award dated 30.12.2022 as was done by the Courts in the impugned
orders.”
36. The Hon’ble Apex Court recently, in the case of Motilal Oswal
Financial Services Limited v. Santosh Cordeiro & Anr. (supra),
while dealing with the provisions of Sections 8, 11 and 16 of the Act of
1996 and considering the judgments in Vidya Drolia (supra) as well as
In Re: Interplay between Arbitration Agreements under the
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[2026:RJ-JD:23604-DB] (48 of 56) [CMA-1277/2026]
Arbitration and Conciliation Act, 1996 and the Indian Stamp Act,
1899 (supra), held that at the stage of proceedings under Section 11 of
the Act of 1996, the primary consideration before the Court is confined
to the existence of the arbitration agreement and that a laborious or
contested inquiry regarding the validity thereof cannot ordinarily be
undertaken at such stage.
37. The Hon’ble Apex Court further observed that mere creation of a
special forum or substitution of the Civil Court by a statutory forum may
not, by itself, be sufficient to infer implicit non-arbitrability and that
conferment of jurisdiction upon a particular Court or Tribunal may not
constitute the decisive test for determining whether arbitration is
impliedly barred. The Hon’ble Apex Court further held that, in terms of
Section 16 of the Act of 1996, it is for the Arbitral Tribunal to decide
questions pertaining to its jurisdiction and that such determination is in
consonance with the doctrine of Kompetenz/Kompetenz, as explained in
the judgment rendered in In Re: Interplay between Arbitration
Agreements under the Arbitration and Conciliation Act, 1996 and
the Indian Stamp Act, 1899 (supra).
38. After culling out the ratio laid down in the judgments referred to
hereinabove, it is clear that insofar as the issue relating to the
jurisdiction of the Arbitral Tribunal is concerned, the party concerned is
required to raise objections at two distinct stages, namely, under
Sections 11 and 16 of the Act of 1996. At the stage of adjudication
under Section 11, the scope of examination is limited and, in cases
involving disputed questions, the Court would ordinarily leave the issue
to be adjudicated by the Arbitral Tribunal itself in exercise of powers
under Section 16 of the Act of 1996. However, irrespective of the
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[2026:RJ-JD:23604-DB] (49 of 56) [CMA-1277/2026]
contention that the arbitral proceedings were without jurisdiction, if no
objection is raised under Section 16 of the Act of 1996, or even before
the learned Arbitrator upon submission of the statement of defence or
later, the party concerned cannot be permitted to raise such objections
for the first time at a later stage under Section 34 of the Act of 1996.
The same is evident from the ratio laid down in the judgments referred
to hereinabove.
39. Once a party has participated in the arbitral proceedings without
raising any objection and has, in fact, actively participated therein, the
issue regarding invalidity of the award cannot be permitted to raise at a
subsequent stage, including in proceedings under Section 34 of the Act
of 1996. Such a party would remain bound by the principles of estoppel,
waiver and the doctrine of election. The same has been held in clear
terms by the Hon’ble Apex Court in the cases of Sweta Construction
v. Chhattisgarh State Power Generation Company Limited
(supra), Sanjit Singh Salwan & Ors. v. Sardar Indrajit Singh
Salwan & Ors. (supra) and Gayatri Project Limited v. Madhya
Pradesh Road Development Corporation Limited (supra).
40. Furthermore, Section 4 of the Act of 1996 casts an additional
embargo upon a party, such as the respondent-non-claimant in the
present case, from raising such objections at a subsequent stage,
namely, in proceedings under Section 34 of the Act of 1996. Needless to
emphasize that Section 4 incorporates a deeming fiction of waiver and,
therefore, such objections cannot be permitted to raise at the stage of
Section 34 of the Act of 1996 as well. The same stands fortified by the
judgment of the Hon’ble Apex Court in the case of Union of India v.
Pam Development Private Limited (supra).
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[2026:RJ-JD:23604-DB] (50 of 56) [CMA-1277/2026]
41. Coming to the facts of the present case, not only the respondent-
non-claimant gave consent to the appointment of the learned Arbitrator
vide order dated 03.08.2022, but subsequently also gave consent when
a new Arbitrator came to be appointed in consonance with Section
11(5) of the Act of 1996. This coupled with the fact that the
respondent-non-claimant itself submitted to the jurisdiction of the
learned Arbitrator by filing a counter-claim and seeking adjudication of
the dispute before the Arbitral Tribunal. Throughout the arbitral
proceedings, the respondent-non-claimant never raised any objection
with regard to the jurisdiction of the learned Arbitrator. It was only
after its counter-claim came to be rejected and the claims of the
appellants-claimants were allowed then the respondent-non-claimant,
as an afterthought, raised an objection regarding jurisdiction for the
first time before the learned Commercial Court while filing an
application under Section 34 of the Act of 1996.
42. What is further relevant is that even while filing the application
under Section 34 of the Act of 1996, the respondent-non-claimant did
not dispute the existence of the arbitration agreement providing for
settlement of disputes between the parties through arbitration, nor was
any allegation was made that the agreement had been executed under
force, coercion or undue influence at the instance of the appellants-
claimants. This, coupled with the fact that no objection whatsoever was
ever raised before the learned Arbitrator in consonance with Section 16
of the Act of 1996, clearly disentitles the respondent-non-claimant from
now taking a complete somersault and questioning the very jurisdiction
of the learned Arbitrator, to whose jurisdiction the respondent-non-
claimant had himself consciously submitted by filing a counter-claim
and seeking adjudication thereof. Such conduct also compelled the
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[2026:RJ-JD:23604-DB] (51 of 56) [CMA-1277/2026]
appellants-claimants to participate in the arbitral proceedings and incur
the costs of arbitration.
43. At this stage, the respondent-non-claimant cannot be permitted to
take a complete volte-face and raise an objection with regard to the
jurisdiction of the learned Arbitrator. The same is clearly barred in view
of the provisions of Section 4 of the Act of 1996, as well as the doctrine
of waiver, which squarely applies to the facts of the present case
against the respondent-non-claimant. The Arbitration Act, 1996 being a
special Act, the issue with regard to raising objection relating to
jurisdiction has been specifically dealt with under the provisions of the
Act itself, as noticed hereinabove. Thus, in case no objection with
regard to jurisdiction is raised either before the High Court at the
reference stage or before the learned Arbitrator under Section 16 of the
Act of 1996, the deeming provision of waiver, as contemplated under
Section 4 of the Act of 1996, would apply and the party concerned
would thereafter be barred from raising such objection at a subsequent
stage. Question No.2 is answered accordingly.
Question No.3:-
44. As far as Question No.3 is concerned, before adverting to the
issue involved, it would be apposite to refer to Section 29A of the Act of
1996, which reads as under:-
“29A. Time limit for arbitral award.– (1) The award in matters other
than international commercial arbitration shall be made by the
arbitral tribunal within a period of twelve months from the date of
completion of pleadings under sub-section (4) of section 23:
Provided that the award in the matter of international commercial
arbitration may be made as expeditiously as possible and endeavor
may be made to dispose of the matter within a period of twelve
months from the date of completion of pleadings under sub-section (4)
of section 23.](Uploaded on 22/05/2026 at 01:54:05 PM)
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[2026:RJ-JD:23604-DB] (52 of 56) [CMA-1277/2026](2) If the award is made within a period of six months from the date
the arbitral tribunal enters upon the reference, the arbitral tribunal
shall be entitled to receive such amount of additional fees as the
parties may agree.
(3) The parties may, by consent, extend the period specified in sub-
section (1) for making award for a further period not exceeding six
months.
(4) If the award is not made within the period specified in sub-section
(1) or the extended period specified under sub-section (3), the
mandate of the arbitrator(s) shall terminate unless the Court has,
either prior to or after the expiry of the period so specified, extended
the period:
Provided that while extending the period under this sub-section, if the
Court finds that the proceedings have been delayed for the reasons
attributable to the arbitral tribunal, then, it may order reduction of
fees of arbitrator(s) by not exceeding five per cent. for each month of
such delay.
Provided further that where an application under sub-section (5) is
pending, the mandate of the arbitrator shall continue till the disposal
of the said application:
Provided also that the arbitrator shall be given an opportunity of
being heard before the fees is reduced.](5) The extension of period referred to in sub-section (4) may be on
the application of any of the parties and may be granted only for
sufficient cause and on such terms and conditions as may be imposed
by the Court.
(6) While extending the period referred to in sub-section (4), it shall
be open to the Court to substitute one or all of the arbitrators and if
one or all of the arbitrators are substituted, the arbitral proceedings
shall continue from the stage already reached and on the basis of the
evidence and material already on record, and the arbitrator(s)
appointed under this section shall be deemed to have received the said
evidence and material.
(7) In the event of arbitrator(s) being appointed under this section, the
arbitral tribunal thus reconstituted shall be deemed to be in
continuation of the previously appointed arbitral tribunal.
(8) It shall be open to the Court to impose actual or exemplary costs
upon any of the parties under this section.
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[2026:RJ-JD:23604-DB] (53 of 56) [CMA-1277/2026]
(9) An application filed under sub-section (5) shall be disposed of by
the Court as expeditiously as possible and endeavour shall be made to
dispose of the matter within a period of sixty days from the date of
service of notice on the opposite party.”
44.1 A bare perusal of the aforesaid provision reveals that insofar as
domestic arbitration is concerned, the arbitral award is required to be
made within a period of twelve months from the date of completion of
pleadings, which period may further be extended by six months with
the consent of the parties. However, the issue which falls for
consideration in the present case is as to whether, after passing of the
arbitral award, the mandate of the learned Arbitrator can still be
extended by the Court under Section 29A of the Act of 1996.
45. The issue in hand stands squarely answered by the Hon’ble Apex
Court in the case of C. Velusamy v. K. Indhera (supra), wherein the
Hon’ble Apex Court, while dealing with the provisions of Section 29A of
the Act of 1996, held as under:-
“23. In conclusion, we hold that an application under Section 29A(5)
for extension of the mandate of the arbitrator is maintainable even
after the expiry of the time under Sections 29A(1) and (3) and even
after rendering of an award during that time. Such an award is
ineffective and unenforceable. But the power of the court to consider
extension is not impaired by such an indiscretion of the arbitrator.
While considering the application, the Court will examine if there is
sufficient cause for extending the mandate, and in the process, it may
impose such terms and conditions as the situation demands. The
Court will also take into account other factors such as reduction of
the fee of the arbitrator under proviso to Section 29A(4) and also
impose costs on parties if the fact situation so demands. Substitution
is an option for the Court as the provision itself says, “it shall be open
for the Court to substitute”, and it will be exercised carefully. If the
mandate is extended, the arbitral tribunal will pick up the thread from
where it was left, and seamlessly continue the proceeding from the
stage at which the mandate had expired, and conclude within the time
granted.”
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[2026:RJ-JD:23604-DB] (54 of 56) [CMA-1277/2026]
46. In the present case, initially, Shri R.S. Jhala, Judge (Retd.), came
to be appointed as the learned Arbitrator vide order dated 03.08.2022.
After completion of pleadings, the learned Arbitrator expressed his
inability to continue with the proceedings vide communication dated
16.01.2023. Thereafter, an application under Section 11(5) of the Act of
1996 came to be filed, which was allowed and Shri N.N. Mathur, Judge
(Retd.), was appointed as the learned Arbitrator on 16.08.2023.
Correspondence in this regard was thereafter issued on 31.08.2023.
The arbitral award ultimately came to be passed on 31.07.2024, i.e.,
within one year from the appointment of Shri N.N. Mathur, Judge
(Retd.) as the learned Arbitrator. Further, with the consent of the
parties, vide order-sheet dated 12.07.2024, it was recorded that the
period from 16.01.2023 till 31.08.2023 would stand excluded for the
purpose of computing the tenure for completion of the arbitral
proceedings.
47. Thus, at this stage, the respondent-non-claimant cannot be
permitted to resile from the said position. Even otherwise, in view of the
judgment passed by the Hon’ble Apex Court in the case of C.
Velusamy v. K. Indhera (supra), the mandate of the learned
Arbitrator can be extended even after passing of the award, as the very
object of arbitration cannot be permitted to be frustrated on such
hyper-technical grounds. The Hon’ble Apex Court, while deciding the
aforesaid case, observed that a Constitutional Court is under an
obligation to ensure that mechanisms for resolution of disputes remain
accessible, affordable, expeditious and effective. The Hon’ble Apex
Court further held that even after passing of the award, the same would
remain unenforceable till an order under Section 29A of the Act of 1996
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[2026:RJ-JD:23604-DB] (55 of 56) [CMA-1277/2026]
is passed extending the time; however, the award itself cannot be
treated as a nullity merely on that ground.
48. In the present case as well, the appellants-claimants have
specifically averred that an application under Section 29A of the Act of
1996 had already been filed and was pending consideration before this
Court even prior to decision of the objections under Section 34 of the
Act of 1996. The respondent-non-claimant did not dispute the said
factual position. In that view of the matter, the arbitral award in
question could not have been set aside by the learned Commercial
Court in the manner done in the present case. At best, the learned
Commercial Court could only have observed that the award would
remain unenforceable unless and until the application under Section
29A of the Act of 1996 seeking extension of the mandate of the learned
Arbitrator was decided. Question No.3 is answered accordingly.
Conclusion:-
49. The learned Commercial Court has failed to consider the aforesaid
aspects of the matter and, though reference has been made to the
judgments cited at the Bar, the same have not been properly dealt with
or appreciated. The order impugned passed by the learned Commercial
Court is completely silent on the aforesaid issue and contains no cogent
reasoning while setting aside the arbitral award. The order impugned
dated 25.02.2026 passed by the learned Judge, Commercial Court,
Udaipur in Case No.20/2025 titled as ‘City Pulse Enterprise Private
Limited v. LR’s of Late Shri Ramesh Chandra’ is hereby quashed and set
aside and the arbitral award dated 31.07.2024 stands restored. It is,
however, clarified that the appellants-claimants shall be entitled to seek
execution of the award only after adjudication of the application filed
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[2026:RJ-JD:23604-DB] (56 of 56) [CMA-1277/2026]
under Section 29A of the Act of 1996 and, till such adjudication, the
award shall remain unenforceable.
50. Accordingly, the instant Civil Miscellaneous Appeal stands
disposed of.
51. All other pending applications also stand disposed of.
52. No order as to costs.
(SANDEEP SHAH),J (ARUN MONGA),J
27-devrajP/-
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