Arbap / 20U / 2025Ashok Kumar Gupta … vs Prakash Chandra Gupta S/O Late Dr. … on 2 May, 2026

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    Rajasthan High Court – Jaipur

    Urn: Arbap / 20U / 2025Ashok Kumar Gupta … vs Prakash Chandra Gupta S/O Late Dr. … on 2 May, 2026

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               HIGH COURT OF JUDICATURE FOR RAJASTHAN
                           BENCH AT JAIPUR
                        S.B. Arbitration Application No. 17/2025
    
    1.      Ashok Kumar Gupta Son Of Late Shri Kalyan Prasad Gupta,
            Resident Of M/s. Kota Service Station, In Front Of Bank Of
            Baroda, Jhalawar Road, Kota-7 Other Address House No. D-37,
            New Colony, Gumanpura, Kota-7.
    2.      Shambhu Dayal Maheshwari S/o Late Shri Prabhudayal
            Maheshwari, Resident Of House No. 1-Cha-12, Dadabari Kota
            District Kota Pin Code 324009.
                                                                                  ----Petitioners
                                            Versus
    1.      Prakash Chandra Gupta S/o Late Dr. Ramkumar Gupta, Aged
            About 74 Years, Resident Of 2-Ma-16, In Front Of Bahubali
            Medical, Government Hospital Choraha, Vigyan Nagar,kota-6.
    2.      Hindustan Petroleum Corporation Limited, 1st And 2nd Floor, Plot
            No. 12, Near Gumanpura Police Station, Kota
                                                                                ----Respondents
    
    
    
    For Petitioner(s)           :     Mr. Shailesh Prakash Sharma with
                                      Mr. Avi Sharma,
                                      Mr. Divakar Tehariya &
                                      Mr. Manan Sharma
    For Respondent(s)           :     Mr. Abhishek Bhardwaj with
                                      Mr. Ayush Malik
    
    
    
         HON'BLE THE ACTING CHIEF JUSTICE MR. SANJEEV PRAKASH SHARMA
    
                                        Judgment
    
           Date of conclusion of arguments                  :                13/04/2026
    
           Date on which judgment was reserved :                             13/04/2026
    
           Whether the full judgment or only
           the operative part is pronounced                :                 Full judgment
    
           Date of pronouncement                            :                2nd/05/2026
    
    REPORTABLE
    1.   This is an application which has been filed seeking appointment of an
    
    arbitrator under Section 11(6) of the Arbitration and Conciliation Act 1996
    
    
    
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    (hereinafter referred to as the 'Act of 1996') and as per the arbitration
    
    clauses enshrined in the partnership deeds.
    
    2.   The applicants are two partners of a registered partnership firm
    
    operating under the name of M/s. Kota Service Station (hereinafter referred
    
    to as 'firm') which is in the business of petrol, diesel and other petroleum
    
    products in collaboration with M/s. Hindustan Petroleum Corporation
    
    Limited (hereinafter referred to as 'HPCL').The brief facts giving rise to the
    
    present dispute is that on account of the various allegations made, disputes
    
    have arisen between the partners of the firm and non-applicant 1 which has
    
    hindered the collaboration with HPCL and caused loss to the firm.
    
    3.   Learned     counsel      for   the    applicants        submits        that   for   efficient
    
    functioning of the collaboration by the firm, the income earned was to be
    
    deposited with various banks, for which current account was opened and
    
    could be operated by any partner as per the partnership deed. Learned
    
    counsel further submits that in 2023, when the collaboration with HPCL was
    
    in force, a dispute arose when the son of non-applicant 1 (Shri Anil Gupta,
    
    son of Shri Prakash Chandra Gupta) started to interfere with the business
    
    operations carried out by the partners of the firm which violated the policy
    
    of HPCL.
    
    4.   Learned counsel also submits that owing to such refusal, non-
    
    applicant's son levelled various false allegations and also initiated multiple
    
    proceedings aimed at restricting the applicant's bank operations, etc.
    
    Learned counsel further submits that multiple letters were also written to
    
    HPCL, causing loss. Learned counsel further submits that no third party was
    
    authorised to enter the premises of the petrol pump and that no
    
    interference by any third party could have been done which would also
    
    violate the collaboration agreement. Learned counsel submitted that owing
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    to the aforementioned, the applicants filed an application under Section 9
    
    of the Act of 1996 before the learned Commercial Court, Kota, owing to
    
    which, serious differences have arisen amongst the partners, affecting the
    
    reputation and prestige of the firm.
    
    5.   Learned counsel further submitted that as a reply to the applicant's
    
    Section 9 application, the non-applicant stated that there was no dispute.
    
    However, the non-applicant had previously invoked the jurisdiction of the
    
    learned Commercial Court, Kota by impleading the applicants as a party to
    
    the Civil Misc. Arbitration Application No. 10/2023 filed on 25.07.2023
    
    under Section 9 of the Act of 1996, wherein it was averred that disputes
    
    have arisen amongst the firm's partners and that Shri Anil Gupta was not
    
    allowed to carry out supervision work as the representative of Shri Prakash
    
    Chandra Gupta. Learned counsel also submits that the application also
    
    made a mention of a clause in the partnership deed, which stipulated
    
    resolution of disputes by an Arbitrator as per the Act of 1996.
    
    6.   Learned counsel for the applicant also submits that from a bare
    
    perusal of the aforesaid submissions, all ingredients for appointment of an
    
    Arbitrator can be culled out as a valid arbitration clause in the partnership
    
    deed exists and existence of a dispute can also be made out owing to the
    
    Section 9 applications submitted by both parties separately for grant of
    
    interim measure, which is pending adjudication.
    
    7.   Per contra, in their reply, learned counsel for the respondent submits
    
    that the present application filed by the applicants is not maintainable
    
    owing to non-service of a notice under Section 21 of the Act of 1996 prior
    
    to filing the current application. Learned counsel further submits that a
    
    perusal of Section 11(6) of the Act of 1996 would reveal that without
    
    service of the notice under the said act, the party seeking reference of the
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    disputes to arbitration would not be able to demonstrate the failure by one
    
    party to adhere to the stipulated procedure and accede to the request for
    
    appointment of an arbitrator. Learned counsel also submits that the trigger
    
    for invoking the jurisdiction of this court under Section 11 of the said act is
    
    failure by one party to respond.
    
    8.      Learned counsel for the respondent further submits that ex facie, no
    
    dispute survives for reference to arbitration as the dealership agreement
    
    upon which the partnership deed was executed has ended in July 2024 and
    
    that, as per reply to an RTI request filed by the respondent, HPCL
    
    mentioned that the outlet was now handed over to M/s Vinayak Petroleum
    
    on an ad hoc basis for one year and therefore, the firm cannot operate the
    
    said facility now. Learned counsel further submitted that the present
    
    application is not maintainable as the agreement dated 13.10.2020 is not
    
    registered and therefore is barred under Section 69 of the Indian
    
    Partnership Act, 1932. Learned counsel also stated that not impleading a
    
    necessary         party,        i.e.,   HPCL     renders       the     present      application   non-
    
    maintainable.
    
    9.      However, learned counsel for the applicants also relied on the decision
    
    of the Apex Court in Umesh Goel vs Himachal Pradesh Cooperative
    
    Group Housing Society Limited 1, Delhi High Court in Hari Om Sharma
    
    vs Sauman Kumar Chatterjee and Another 2 and Calcutta High Court in
    
    Md. Wasim and Another vs Bengal Refrigeration and Company and
    
    Others3 to submit that the bar under Section 69 of the Act of 1932 is
    
    inapplicable to arbitral proceedings and therefore the present application is
    
    maintainable. The learned counsel for the applicants also submitted that
    
    
    1    (2016) 11 SCC 313
    2    2024 SCC OnLine Del 7494
    3    2022 SCC OnLine Cal 3035
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    HPCL was made a party in the applicant's Section 9 application for the
    
    limited purpose of protecting the dealership from interference and to seek
    
    directions and they are not a necessary party for appointment of arbitrator
    
    and also that existence of a dispute is not affected by the status of the
    
    collaboration.
    
    10. I have considered the submissions.
    
    11. At the outset, it would be appropriate to quote sub-sections 6 and 6A of
    
    Section 11 and Section 21 of the Act of 1996:
    
             "11. Appointment of arbitrators.-
             ......................
    

    (6) Where, under an appointment procedure
    agreed upon by the parties,-

    (a) a party fails to act as required under
    that procedure; or

    SPONSORED

    (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,

    [the appointment shall be made, on an application
    of the party, by the arbitral institution designated
    by the Supreme Court, in case of international
    commercial arbitration, or by the High Court, in
    case of arbitrations other than international
    commercial arbitration, as the case may be] to
    take the necessary measure, unless the agreement
    on the appointment procedure provides other
    means for securing the appointment.

    [(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 judgement,
    decree or order of any Court, confine to the
    examination of the existence of an arbitration
    agreement.]
    ………………………..

    21. Commencement of arbitral proceedings.-
    Unless otherwise agreed by the parties, the
    arbitral proceedings in respect of a particular
    dispute commence on the date on which a request
    for that dispute to be referred to arbitration is
    received by the respondent.”

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    Furthermore, it would also be apposite to quote clause 14 of the
    partnership deed dated 09.09.2013 (as the text of the arbitration clause is
    stated to be common across the partnership deeds):

    “14. That in case of any disputes among the partners as
    regards the dealing of the firm and or interpretation of
    the Clauses of this indenture, the matter shall be
    decided according to the provisions of the Arbitration
    and Conciliation Act, 1996
    “.

    12. Prior to framing the issues for determination, regarding the scope of

    inquiry to be undertaken at the stage of referral, a three-judge bench of

    the Hon’ble Supreme Court in SBI General Insurance Company Limited

    vs Krish Spinning4 held as under:

    “(c) Judicial interference under the 1996 Act
    ……………….

    113. The scope of examination under Section 11(6-
    A) is confined to the existence of an arbitration
    agreement on the basis of Section 7. The
    examination of validity of the arbitration agreement
    is also limited to the requirement of formal validity
    such as the requirement that the agreement should
    be in writing.

    114. The use of the term “examination” under
    Section 11(6-A) as distinguished from the use of the
    term “rule” under Section 16 implies that the scope
    of enquiry under Section 11(6-A) is limited to a
    prima facie scrutiny of the existence of the
    arbitration agreement, and does not include a
    contested or laborious enquiry, which is left for the
    Arbitral Tribunal to “rule” under Section 16. The
    prima facie view on existence of the arbitration
    agreement taken by the Referral Court does not bind
    either the Arbitral Tribunal or the Court enforcing the
    arbitral award.

    115. The aforesaid approach serves a twofold
    purpose — firstly, it allows the Referral Court to
    weed out non-existent arbitration agreements, and
    secondly, it protects the jurisdictional competence of
    the Arbitral Tribunal to rule on the issue of existence
    of the arbitration agreement in depth.

    116. Referring to the Statement of Objects and
    Reasons of the Arbitration and Conciliation
    (Amendment) Act, 2015, it was observed in Interplay
    Between Arbitration Agreements under the
    Arbitration Act, 1996 & the Stamp Act, 1899, In re
    4 (2024) 12 SCC 1
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    [Interplay Between Arbitration Agreements under the
    Arbitration Act, 1996 & the Stamp Act, 1899, In re,
    (2024) 6 SCC 1 : 2023 INSC 1066] that the High
    Court and the Supreme Court at the stage of
    appointment of arbitrator shall examine the
    existence of a prima facie arbitration agreement and
    not any other issues. The relevant observations are
    extracted hereinbelow: (SCC p. 104, para 220)

    “220. The above extract indicates that the
    Supreme Court or High Court at the stage of the
    appointment of an arbitrator shall “examine the
    existence of a prima facie arbitration agreement
    and [Ed.: The words between two asterisks have
    been emphasised in original as well.] not other
    issues [Ed.: The words between two asterisks
    have been emphasised in original as well.] “.

    These other issues not only pertain to the
    validity of the arbitration agreement, but also
    include any other issues which are a
    consequence of unnecessary judicial
    interference in the arbitration proceedings.
    Accordingly, the “other issues” also include
    examination and impounding of an unstamped
    instrument by the Referral Court at the Section
    8
    or Section 11 stage. The process of
    examination, impounding, and dealing with an
    unstamped instrument under the Stamp Act is
    not a time-bound process, and therefore does
    not align with the stated goal of the Arbitration
    Act
    to ensure expeditious and time-bound
    appointment of arbitrators.”

    (emphasis supplied)
    ………………………….

    120. By referring disputes to arbitration and
    appointing an arbitrator by exercise of the powers
    under Section 11, the Referral Court upholds and
    gives effect to the original understanding of the
    contracting parties that the specified disputes shall
    be resolved by arbitration. Mere appointment of the
    Arbitral Tribunal does not in any way mean that the
    Referral Court is diluting the sanctity of “accord and
    satisfaction” or is allowing the claimant to walk back
    on its contractual undertaking. On the contrary, it
    ensures that the principle of arbitral autonomy is
    upheld and the legislative intent of minimum judicial
    interference in arbitral proceedings is given full
    effect. Once the Arbitral Tribunal is constituted, it is
    always open for the defendant to raise the issue of
    “accord and satisfaction” before it, and only after
    such an objection is rejected by the Arbitral Tribunal,
    that the claims raised by the claimant can be
    adjudicated.

    …………….

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    126. The power available to the Referral Courts has
    to be construed in the light of the fact that no right
    to appeal is available against any order passed by
    the Referral Court under Section 11 for either
    appointing or refusing to appoint an arbitrator. Thus,
    by delving into the domain of the Arbitral Tribunal at
    the nascent stage of Section 11, the Referral Courts
    also run the risk of leaving the claimant in a situation
    wherein it does not have any forum to approach for
    the adjudication of its claims, if its Section 11
    application is rejected.”

    13. While considering an application under Section 11 of the Act of 1996,

    this Court would only examine whether there is any arbitration clause

    existing between the parties and whether there is any dispute which has

    arisen between the parties. In view of the above, basis the facts which are

    noticed, we find that both the ingredients, namely, existence of a valid

    arbitration clause in the partnership deed and the existence of a dispute

    between the partners are present.

    14. The question for examination before this Court now, would only be

    limited to the objection raised by the respondent of the bar to exercise

    powers under Section 11 of the Act of 1996, if notice under Section 21 of

    the Act of 1996 has not been served.

    15. With regard to the aforesaid, we find that both the parties have

    resorted to filing applications under Section 9 of the Act of 1996, seeking

    interim relief with the intention to initiate arbitration proceedings for

    solving the dispute finally. Thus, knowledge of existence of a dispute was

    there amongst the parties. Also, a perusal of the text of Section 21 would

    show the absence of any explicit mention of the word ‘notice’ but rather

    only refers to the time when a ”request” for arbitration is received,

    indicating that issuance of a notice is not a statutory requirement under the

    said provision. Therefore, non issuance of the same cannot be utilised as a

    ground in this case to challenge the maintainability of the present

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    application as the parties already have knowledge of the existence of an

    arbitrable dispute. In this regard, the Apex Court in Adavya Projects

    Private Limited vs Vishal Structurals Private Limited and Others 5

    had held as under:

    “17. A plain reading of the provision shows that in
    the absence of an agreement between the parties,
    arbitral proceedings are deemed to have commenced
    when the respondent receives a request to refer
    disputes to arbitration. It is clear that Section 21
    does not expressly mandate the claimant to send a
    notice invoking arbitration to the respondents.
    However, the provision necessarily mandates such
    notice as its receipt by the respondent is required to
    commence arbitral proceedings, unless the parties
    have mutually agreed on another date/event for
    determining when the arbitral proceedings have
    commenced.”

    Furthermore, this court in Shekharchand Sacheti and Another vs

    S.M.F.G. India Home Finance Company Limited and Another 6 while

    adjudicating an application made for appointment of an arbitrator under

    Section 11 of the Act of 1996, had held as under:

    “The essence of the matter is that merely stating
    that a dispute has arisen between the parties and
    referring to a claim does not satisfy the requirements
    of Section 21 of the Act of 1996 and a valid notice
    must be served to the other party to initiate the
    arbitration proceedings and in absence of notice
    under Section 21, the arbitration application cannot
    be entertained.

    31. But in the instant case, the respondents were not
    taken by surprise regarding invocation of the
    arbitration clause by the applicants for the first time
    before this Court inasmuch as the applicants
    submitted a suit for partition of property against the
    respondents before the Court of ADJ, where an
    application was submitted by none other than the
    respondents themselves under Sections 8 and 5 of
    the Act of 1996 that Civil Suit is not maintainable
    and an Arbitration Application under Section 11 of
    the Act is maintainable, hence accepting their prayer,
    the learned ADJ returned the plaint to the applicants
    under Order 7 Rule 10 CPC for its presentation
    before the competent court of law, and only
    thereafter, the applicants have submitted the instant
    5 (2025) 9 SCC 686
    6 S.B. Arbitration Application No.81/2024, dated 30.05.2025
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    application. Thus, it can safely be said that the
    respondents were not taken by surprise by the filing
    of this arbitration application, for the appointment of
    an arbitrator before this Court, especially given that
    no prior written notice was issued by the applicants.
    It is inconceivable to suggest that the respondents
    were unaware of the dispute concerning the partition
    of the property in question. The applicants
    approached the Civil Court for partition by way of
    filing a Civil suit, but the same was returned by the
    Civil Court under Order 7 Rule 10 CPC, at the
    request/prayer of the respondents and even the
    interim order under Section 9 of the Act of 1996 was
    passed against the respondents under the provisions
    of Act of 1996 by the concerned competent Court of
    law. Hence, the respondents were well versed with
    the entire dispute raised against them. Therefore,
    under these peculiar circumstances, this application
    under Section 11 of the Act of 1996 is maintainable
    even without issuing a proper notice to the
    respondent under Section 21 of the Act of 1996 by
    the applicants.”

    16. Therefore, in view of the above, this application for appointment of

    Arbitrator deserves to be allowed. This court, therefore, appoints Hon’ble

    Mr. Justice Banwari Lal Sharma (former Judge, Rajasthan High Court)

    residing at 49-50, 4D, Campus, Theme Colony, Near Murlipura Police

    Station, Jaipur, as the sole arbitrator to adjudicate the dispute between the

    parties in compliance with the provisions of the Act of 1996. The

    appointment of the sole arbitrator is subject to the declarations made under

    Section 12 of the Act of 1996 regarding independence, impartiality and the

    ability to devote sufficient time to ensure completion of the arbitration

    within the prescribed period.

    17. The fee payable to the sole arbitrator will be in accordance with the

    provisions enshrined in the Manual of Procedure of Alternative Dispute

    Resolution, 2009 (as amended by the Manual of Procedure for Alternative

    Dispute Resolution (Amendment), 2017 vide notification dated 23.03.2017)

    read with the 4th Schedule appended to the Act of 1996 or as determined

    by the arbitrator with the consensus of the parties.

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    18. The Registry is directed to intimate the Arbitrator for their approval

    and declaration as per Section 11(18) read with Section 12(1) of the Act of

    1996.

    19. All issues raised by the parties shall be decided by the Arbitrator in

    accordance with law.

    20. Since Section 29A of the Act of 1996 stipulates completion of the

    proceedings within its stipulated time period, the parties are expected to

    appear before the Arbitrator on the date so informed by the Arbitrator

    subject to agreement by the parties. Furthermore, the parties shall provide

    their respective e-mail/ contact number/ mobile number and/or also of

    their authorized representatives/ lawyers appearing on their behalf before

    the Arbitrator, in order to facilitate the Arbitrator to send

    information/communication to the parties, whenever required. The

    information sent by the Arbitrator, on such address/ e-mail/ cellphone of

    the parties or to their authorized representatives/ lawyers, shall be treated

    as sufficient communication unless same is not changed.

    21. The Arbitration Application stands disposed off accordingly.

    (SANJEEV PRAKASH SHARMA), ACTING CJ

    GOVIND SHARMA/RAHUL/–

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