Calcutta High Court
Sri Krishnendu Mondal vs Swapan Dey on 1 April, 2026
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
2026:CHC-OS:109
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Original Civil Jurisdiction
BEFORE:
The Hon'ble Justice Ravi Krishan Kapur
RVWO/23/2024
WITH
AP/818/2023
SRI KRISHNENDU MONDAL
VS
SWAPAN DEY
For the petitioner : Mr. Dibyendu Chatterjee, Advocate
Ms. Rashmi Ghosh, Advocate
Ms. Parna Mukherjee, Advocate
Mr. Rahul Deb Goenka, Advocate
Mr. S. Chatterjee, Advocate
For the respondent : Mr. Abhishek Kabir, Advocate
Heard on : 1 April, 2026
Judgment on : 1 April, 2026
Ravi Krishan Kapur, J.:
1. This is an application seeking review of an order dated 19 April 2024
passed in an application under section 11 (6) of the Arbitration and
Conciliation Act, 1996. For convenience, the order dated 19 April,
2024 is set out below:
“The Court: It is fairly submitted by the petitioner that the instant
application is misconceived and there is no valid nor subsisting
arbitration clause by and between the parties. The respondent is
represented and submits that there has been gross fraud perpetrated
by the petitioner and that on the basis of an invalid and inoperative
arbitration clause, proceedings have also been filed under Section 9 of
the Arbitration and Conciliation Act, 1996 before the District Judge at
Alipore. For convenience, clause 17 of the agreement is set out
hereinbelow;
“17. That in event of any problem that the both party can appoint any
Arbitrator with the consent of other party.”
2
2026:CHC-OS:109
A perusal of the said clause would ex facie demonstrate that the same
is unintelligible and meaningless. There is lack of mutuality and no
consensus ad idem. In fact, there is no valid arbitration clause between
the parties. In such circumstances, as prayed for by the petitioner,
AP/818/2023 stands dismissed on the ground of maintainability.
Needless to mention, the incidental proceedings under Section 9 of the
Arbitration and Conciliation Act, 1996 are also misconceived and not
maintainable. Both parties are at liberty to take appropriate steps,
before the learned District Judge at Alipore in Misc. Case no. 15/2023,
in accordance with law.”
2. The present application for review has been filed on the ground that
though the arbitration clause is cryptic but the intention is clear from
the word “Arbitrator” that there was consensus to refer the disputes to
arbitration. In this background, the applicants seeks review on the
ground that there is an error apparent from the records and the
application is liable to be allowed. In support of such contentions, the
applicant relies on Jagdish Chander vs. Ramesh Chander & Ors.
(2007) 5 SCC 719, Powertech World Wide Ltd. Vs. Delvin International
General Trading LLC (2012) 1 SCC 361 and Visa International Ltd. Vs.
Continental Resources (USA) Ltd. (2009) 2 SCC 55.
3. On behalf of the respondent, it is submitted that there is no scope for
review of an order passed under section 11 of the Act and the only
remedy of the petitioner is to file an appeal. The jurisdiction of review
cannot be invoked to reopen and reconsider a determination made
under section 11 of the Act. In any event, in view of the recorded
concession in the order dated 19 April, 2024, the applicant is
estopped from seeking review of the order. There is no binding
arbitration agreement between the parties. The word “Arbitrator” in
the clause does not automatically make the same binding. In support
3
2026:CHC-OS:109
of such contentions, the respondent relies on Jagdish Chander vs.
Ramesh Chander & Ors. (Supra), BGM and M-Rpl-Jmct (JV) vs. Easter
Coalfields Ltd. 2025 SCC OnLine SC 1471, (BVEPL Bhartia (JV) vs.
State of West Bengal & Ors. Judgment dated 22.05.2025 passed by a
Co-ordinate Bench in A.P.-Com 991 of 2024, Calcutta High Court and
South Delhi Municipal Corporation of Delhi vs. SMS Ltd. (2026) 1 SCC
545 and Vimaleshwar Nagappa Shet v. Noor Ahmed Shariff, (2011) 12
SCC 658.
4. At the outset, the order dated 9 April 2024 was passed at the
invitation of the petitioner. The concession made by the Advocates
appearing for the petitioner is expressly recorded in the opening
sentence of the order. There is no challenge to the said recording in
this application. A mere change of Advocates does not give a ground to
review the recording in the order. There is no mistake of the Court
which warrants interference. [Vimleshwar Nagappa Shet vs Noor
Ahmad Sheriff and Ors. (Supra)].
5. It is now well-settled that the Arbitration and Conciliation Act, 1996 is
a self-contained Code and the scope for judicial intervention is limited
in cases where an order is passed under section 11 of the Act. The
only remedy available to a party is to approach the Hon’ble Supreme
Court challenging the said order or raise the question of jurisdiction
before the Arbitral Tribunal. It has been repeatedly reiterated that
attempts to re-agitate issues through the back-door of what the
statute has expressly prohibited is impermissible. Any attempt to
review an order passed under Section 11(6) of the Act goes against the
4
2026:CHC-OS:109
grain of the Act and undermines the principle of minimal judicial
interference. [Hindustan Construction Company Ltd. Vs. Bihar Rajya
Pul Nirman Nigam Ltd. (Supra), BSNL vs. Nortel Networks (India) (P) Ltd.
(Supra)].
6. In any event, apart from the question of maintainability even on
merits there is no question for re-opening the order dated 19 April
2024. The use of the expression ‘can’ in the arbitration clause does
not indicate finality nor conclusiveness. An arbitration agreement
must reflect a definitive and mutual intention to refer the disputes to
arbitration. The agreement must contemplate a binding and
enforceable resolution of disputes. There must be both clarity and
certainty in an arbitration clause. There is something incomplete and
tentative about the arbitration clause and the same requires the
parties to arrive at a further agreement to go to arbitration. An
agreement requiring further consent is not a binding arbitration
agreement. There is an element of contingency which is left in the
arbitration clause which makes the same tentative, optional and
incapable of enforcement. It is not the role of any Court to fill in the
gaps in case the arbitration clause is inaccurately or inartistically
drafted. In this connection, the decision in Visa International Ltd.
(Supra) is distinguishable. In the said decision, the arbitration clause
provided that the disputes “shall be finally settled”. The use of the
word ‘shall’ indicated a clear binding and unequivocal intention of the
parties to refer the disputes to arbitration. To this extent, the mere
use of the word ‘Arbitrator’ is irrelevant and is not conclusive insofar
5
2026:CHC-OS:109
as the arbitration clause is concerned. [Jagdish Chander v. Ramesh
Chander & Ors. (Supra), BGM and M-Rpl-Jmct (JV) v. Easter Coalfields
Limited (Supra). BVEPL Bhartia (JV) v. State of West Bengal & Ors.
(Supra). South Delhi Municipal Corporation of Delhi v. SMS Limited
(Supra)].
7. In view of the above, the present application is dismissed both on the
grounds of maintainability and on the merits.
(Ravi Krishan Kapur, J.)
