Unistar Metals Private Limited vs Ge Power Limited on 14 July, 2026

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    Bombay High Court

    Unistar Metals Private Limited vs Ge Power Limited on 14 July, 2026

                                                                               ARBAP(L)-15413-2026.DOC
    
    
    
    
                                   ARP
    
    
                                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             ORDINARY ORIGINAL CIVIL JURISDICTION
                                         ARBITRATION APPLICATION (L) NO. 15413 OF 2026
    
                                   Unistar Metals Private Limited
                Digitally signed
                by AJIT            A Company Duly incorporated under
    AJIT        RAMESH
    RAMESH      PATHRIKAR          The Companies Act, 1956
    PATHRIKAR   Date:
                2026.07.14
                19:55:50 +0530     having its registered office at
                                   'Vardhan' Suite No.306, 3rd floor,
                                   25A Camac Street, Kolkata,
                                   West Bengal - 700016,
                                   Through its Authorized Representative
                                   Mr. Gaurav Jhawar
                                   Age about - 39 Years,
                                   Occupation - Business                               ...Applicant
    
                                         Versus
    
                                   GE Power Limited
                                   a company duly incorporated under
                                   The Companies Act, 1956
                                   having its registered office at
                                   Regus Magnum Business Centre,
                                   9th Floor, Platina Block - G,
                                   Plot C-59, BKC, Bandra (E),
                                   Mumbai - 400051.                                    ...Respondent
    
                                   Mr. Pranit Bag (Bar At Law), Mr. Chetan Arvind Alai, Mr. Rahul
                                         Poddar and Mr. Pranit Pawar, for the Applicant.
                                   Ms. Lizum C. Wangdi i/b Mr. Aniket Mokashi, for the Respondent.
    
    
                                                       CORAM                     ARUN R. PEDNEKER, J.
                                                       RESERVED ON:              06th JULY 2026
                                                       PRONOUNCED ON: 14th JULY 2026
    
    
    
    
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    JUDGMENT:

    1. By the present Arbitration Application, the Applicant seeks
    appointment of Arbitrator on account of certain disputes arising
    out of an Purchase order dated 25th March 2019 incorporating the
    General Conditions for dispute resolution through arbitration.
    Clause 20.2 is the arbitration clause and is quoted below for ready
    reference:

    SPONSORED

    “20.2 Dispute Resolution. In the event of any dispute arising out
    of or in connection with this Order, including any question
    regarding their existence, validity, interpretation, breach, violation
    or termination, the parties agree to submit such dispute to
    arbitration. Any arbitration proceeding shall be finally settled under
    the Rules of Delhi International Arbitration Centre by three
    arbitrators appointed in accordance with the said Rules. The place
    of arbitration shall be New Delhi and the language shall be English.
    The arbitration shall be confidential. The competent courts at the
    place of registered office of the Buyer shall have exclusive
    jurisdiction in relation to this Order and for implementation of the
    arbitral awards.”

    2. Brief facts as stated in the application leading to the filing of
    the application are that the Respondent issued a Purchase Order
    dated 25th March 2019 in favour of the Applicant for the supply of
    2,52,926.62 kgs. of ESP Cold Roof materials for a total contract
    value of Rs.2,15,52,322.35/-. The said Purchase Order
    incorporated the “G.E. Power Terms of Purchase Rev-A-India,”

    which includes Clause 20 providing for arbitration as the notice of
    disputes resolution as noted above. On account of disputes that
    have arisen between the parties in the supply of goods and
    fabrication work carried out by the Applicant, the Applicant
    invoked the arbitration clause by issuing notice under Section 21

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    of the Arbitration and Conciliation Act, 1996 (“the Act”) on 9th
    September 2024. On 17th October 2024, the Respondent replied to
    the arbitration notice, refusing to concur in appointment of an
    arbitrator and raised an objection regarding limitation. On 20 th
    January 2026, the application under Section 11 of the Act was
    filed before the Delhi High Court. However, it was withdrawn as
    jurisdictional objection was raised and thereafter the present
    application is filed before this Court.

    3. Mr. Pranit Bag, the learned counsel appearing for the
    Applicant, submits that in view of the sentence in the arbitration
    clause 20.2 i.e. “The competent courts at the place of registered
    office of the Buyer shall have exclusive jurisdiction in relation to
    this Order and for implementation of the arbitral awards.”, the
    application under Section 11 of the Act is presented before this
    Court, as the registered office of the Buyer is situated within the
    jurisdiction of this Court. He thus prays that an arbitrator be
    appointed in the matter.

    4. Per contra, Ms. Lizum Wangdi, the learned counsel
    appearing for the Respondent has not disputed the submission of
    the Applicant that the Respondent had contended before the Delhi
    High Court that the Bombay High Court would have the
    jurisdiction in the matter and the application was accordingly
    withdrawn. However, she raises objections to the arbitration
    application on the following grounds:

    (i) The Notice Invoking Arbitration is invalid, and hence,
    Section 11 is not maintainable

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    In this regard, it is submitted that the notice invoking
    arbitration dated 9th September 2024 issued by the Applicant is ex-

    facie contrary to and in derogation of the procedure expressly
    agreed between the parties under Clause 20.2 of the Terms of
    Purchase Order. Consequently, the said notice does not constitute a
    valid invocation of arbitration in the eyes of law. It is further
    submitted that Clause 20.2 of the arbitration agreement
    unequivocally provides that disputes between the parties shall be
    finally settled under the Rules of the Delhi International
    Arbitration Centre (“DIAC”) by three arbitrators appointed in
    accordance with the said Rules. The parties, therefore, consciously
    agreed not only to resolve disputes through arbitration but also
    prescribed the specific procedure for constitution of the arbitration
    tribunal. It is further submitted that the settled principle of
    arbitration law is that party autonomy forms the cornerstone of
    arbitral proceedings. The procedure agreed by the parties for
    constitution of the arbitration tribunal is binding upon them and
    cannot be unilaterally altered by either party. Any departure from
    such agreed procedure strikes at the very foundation of the
    arbitration agreement and renders the invocation legally
    unsustainable. In the instant case, despite the arbitration
    agreement expressly contemplating adjudication by a three-
    member arbitral tribunal, the Applicant, by its notice invoking
    arbitration dated 9th September 2024, purported to invoke
    arbitration through the appointment/proposal of a sole arbitrator.
    The said notice completely disregards the contractual mechanism
    agreed between the parties and seeks to unilaterally substitute the

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    agreed procedure with an entirely different one. It is further
    submitted that the Applicant could not have, by way of a unilateral
    notice, rewritten the arbitration agreement between the parties.
    Having consciously entered into a contract providing for
    adjudication by three arbitrators, the applicant was bound to
    adhere to the agreed procedure. The attempt to invoke arbitration
    through a mechanism alien to the arbitration agreement is legally
    impermissible and liable to be rejected. Thus, the invocation of
    arbitration itself is invalid. The procedure for constitution of the
    arbitral tribunal is not a mere technicality or an empty formality. A
    valid invocation of arbitration is a condition precedent to the
    exercise of jurisdiction under Section 11 of the Act and unless
    arbitration is invoked in accordance with the arbitration
    agreement, no cause of action arises for seeking the intervention of
    this Hon’ble Court under Section 11 of the Act. In this regard,
    reliance is placed on the judgment of this court in the case of Arohi
    Infrastructure & Ors. Vs. Tata Capital Financial Services Limited
    1,
    wherein it was held that the arbitration application based on such
    defective notice was not maintainable.

    (ii) Invocation not as per DIAC Rules

    It is submitted that the parties have agreed to conduct
    arbitration as per the DIAC Rules. The said Rules prescribe a
    comprehensive procedure not only in respect of the conduct of
    arbitration, but also in respect of the manner in which the
    arbitration is required to be invoked and the arbitration tribunal is
    consequently to be constituted. Rule 4 provides for “Request of

    1 2015 SCC OnLine Bom 5883

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    Arbitration”, which is required to be filed before the DIAC. The
    Applicant has not complied with the aforesaid. It is further
    submitted that where the arbitral tribunal is to comprise of three
    arbitrators, the procedure is prescribed under Rule 8.5 of the DIAC
    Rules, which are not complied by the Applicant. It is further
    submitted that the DIAC Rules further contemplate a procedure
    whereby the appointment of the arbitrator is referred to a sub-
    committee in the event the parties either fail to appoint their
    respective nominee arbitrators or the nominee arbitrators fail to
    appoint the presiding arbitrator. The present case could have been
    referred to the sub-committee had the Applicant adopted the
    agreed procedure. The DIAC Rules also provide for a challenge
    under Rule 10 in respect of the appointment made by the Sub-
    committee. It is further submitted that filing of the present
    application by the Applicant invoking this Court’s jurisdiction
    under Section 11 of the Act is premature as the procedure
    prescribed under the institutional rules has not been exhausted.

    (iii) There is no dispute that could be referred to Arbitration

    It is submitted that the present controversy between the
    parties arose on account of Applicant’s failure to honour the terms
    of the Purchase Order and to conform to the quality and quantity
    of the goods required to be supplied thereunder (“subject goods”)
    in accordance with the technical specifications of the Purchase
    Order. In view of such failure, the subject goods supplied by the
    Applicant were rejected. Therefore, the Respondent never took
    delivery of any subject goods, and consequently, the Applicant
    never raised any invoice thereupon. In the absence of any invoice,

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    there is no obligation to remit any payment to the Applicant.
    Therefore, there is no dispute that could have arisen between the
    parties.

    5. She submits that the notice of invoking arbitration has,
    therefore, not been issued in accordance with the DIAC Rules,
    which stipulate that the parties have to approach the DIAC and
    relies upon clause Nos. 4, 8.5 and 8.6 of the DIAC Rules, which
    read as under:

    “4. Request for Arbitration
    4.1 A party shall file with DIAC a written Request for
    Arbitration, including in cases where a reference to DIAC has been
    made by any Court/Authority. The request shall, in so far as
    applicable, and be accompanied by-

    (a) provisional terms of reference, if any,

    (b) where reference is received from a Court, referral order of the
    Court;

    (c) a request that the dispute be referred to arbitration

    (d) the full terms of the arbitration clause or the separate
    arbitration agreement that is invoked

    (e) where the arbitration clause or the separate arbitration
    agreement does not provide that arbitration shall be conducted
    under the aegis of DIAC, a duly executed memorandum of
    understanding stating that both the parties have agreed to submit
    the dispute for arbitration before DIAC*;

    (f) a copy of the contract(s) or other instrument(s) out of or in
    relation to which the dispute arises;

    (g) a disclosure of any other arbitration proceedings between the
    parties where the disputes or differences therein are identical and
    between the same parties or between the parties having
    commonality of interest or where such disputes arise out of
    separate contracts but relate to the same transaction.

    (h) the full names and contact details, including postal
    address(es), telephone number(s), and Mobile number(s) facsimile

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    number(s) and electronic mail address(es), to the extent known, of
    the parties to the arbitration and their legal representatives, if any;

    (i) a statement briefly describing the nature and circumstances of
    the dispute and the claims advanced by the Claimant against any
    other party to the arbitration, each such party being here separately
    described as the “Respondent” specifying the relief claimed,
    including the amounts of any quantified claims and, to the extent
    possible, an estimate of the monetary value of any other claims;

    (j) a statement of any matters which the parties have previously
    agreed to as to the conduct of the arbitration or with respect to
    which the Claimant wishes to make a proposal (such as the number
    of Arbitrator(s), the applicable rules of law, the language(s) of the
    arbitration, the seat of arbitration etc.);

    (k) in case of arbitration by Sole Arbitrator, unless the parties
    have agreed otherwise or an Arbitrator has been named by the
    Court, the request shall contain a list of five Arbitrators from the
    Panel as suggested Arbitrator to the arbitration. In case of
    arbitration by a Tribunal of three Arbitrators, the party making the
    request shall nominate an Arbitrator from the Panel on its behalf.

    The party shall take the consent of the Arbitrator so nominated and
    also ensure that such Arbitrator does not suffer from any
    disqualification as mentioned in Section 12(5) of the Act:

    Provided that in case the Panel does not include a person
    possessing requisite qualification as per the arbitration agreement,
    the parties may nominate an Arbitrator from outside the Panel;

    (l) proof of service of the Request for Arbitration and any
    documents filed there with on the other parties to the satisfaction
    of DIAC; and

    (m) confirmation that the requisite administrative charges have
    been paid.

    4.2 In case no such request in terms of Rule 4.1 is received, no
    further action will be taken by the DIAC. A request which is
    inchoate in the opinion of the DIAC will not be considered as a
    valid request.

    4.3 Party making Request for Arbitration may also file
    Statement of Claim as referred to in Rule 16.1 along with the
    request.

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    4.4 The contents of the Request for Arbitration does not prevent a
    party from subsequently adding, supplementing or amending its
    pleadings, the matters referred to arbitration or the reliefs claimed:

    Provided that where the request is with the Statement of Claim,
    such amendment shall only be accompanied considered by the
    Arbitral Tribunal in accordance with Rule 18.
    8.5 Where the agreement provides for the appointment of three
    Arbitrators, the Claimant shall appoint its Arbitrator at the time of
    filing the request and the Respondent shall appoint its Arbitrator at
    the time of filing of its response to the Request for Arbitration, and
    the two Arbitrators shall within 21 days, appoint the Presiding
    Arbitrator.

    8.6 Where the parties fail to appoint their respective Arbitrators
    or where the Arbitrators appointed by the parties fail to appoint the
    Presiding Arbitrator, in terms of Rule 8.5, then within 21 days
    thereof, the Chairperson/ Sub-Committee shall appoint the
    Arbitrator/ Presiding Arbitrator as the case may be:

    Provided that in a case of an International Arbitration, where the
    parties belong to different nationalities, the Presiding Arbitrator
    may be of a nationality other than the nationalities of the parties.”

    6. In response to the objections raised, Mr. Bag submits that
    once the process available under the arbitration clause 20.2 has
    failed, it is for this Court to appoint the arbitrator. The learned
    counsel submits that, the jurisdiction to appoint an arbitrator
    under Section 11 in the instant case is admittedly of this Court.

    Thus, this Court should appoint an arbitrator and it would be for
    the arbitrator to follow the DIAC Rules thereafter. He further
    submits that, at the highest, it can be said from the reading of the
    agreement that the venue of arbitration would be New Delhi, while
    the seat would remain at Mumbai. He also relies upon the
    judgment of the Delhi High Court in the case of M/s Magnolia
    Glass Private limited Vs. Pernod Ricard India Private Limited 2 that

    2 Order dated 9.10.2025 passed in ARBP/939/2025

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    the DIAC rules are primarily procedural in nature and cannot
    interfere with the jurisdiction of a referral court in referring the
    disputes to arbitration and that it is not necessary that the parties
    have to approach the DIAC for appointment of the arbitrator. He
    also relies upon the following judgments:

    (i) Office for Alternative Architecture Vs. Ircon Infrastructure3.

    (ii) Arif Azim Company Ltd. Vs. Aptech Ltd4.

    (iii) Bhagheeratha Engineering Ltd. Vs. State of Kerala5.

    7. Having considered the rival submissions, the issue as regards
    the jurisdiciton of this Court to entertain the present application is
    not contested by the Respondent, since the Respondent had earlier
    objected to the jurisdiction of the Delhi High Court to deal with
    Section 11 application. In view of the objection raised, the
    application filed before the Delhi High Court under Section 11 was
    withdrawn and filed before this Court. Thus, the issues for
    determination before this Court are (i) whether the Applicant
    ought to have approached the DIAC before invoking the arbitration
    clause; (ii) whether the invocation notice under Section 21 is not
    in terms of the arbitration clause; (iii) when the arbitration clause
    contemplates three arbitrators, the notice invoking such arbitration
    ought to have stated the names of three arbitrators and not by a
    sole arbitrator, and, whether the notice under Section 21 is
    defective; and what are the consequences thereof?

    3 2025 SCC Online SC 1098
    4 (2024) 5 SCC 313
    5 2026 SCC OnLine SC 5

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    8. As regards the invocation of notice under Section 21,
    without suggesting names of three arbitrators and the notice being
    not in confirmity with the arbitration clause, the law on the object
    of notice under Section 21 is discussed in the judgment of the
    Supreme Court, in the case of Bhagheeratha Engineering Ltd
    (supra), as under:

    ” 16. Secondly, the object of Section 21 of A&C Act, is only for the
    purpose of commencement of arbitral proceedings is also well
    settled. Section 21 is concerned only with determining the
    commencement of the dispute for the purpose of reckoning
    limitation. There is no mandatory prerequisite for issuance of a
    Section 21 notice prior to the commencement of Arbitration.
    Issuance of a Section 21 notice may come to the aid of parties and
    the arbitrator in determining the limitation for the claim. Failure to
    issue a Section 21 notice would not be fatal to a party in
    Arbitration if the claim is otherwise valid and the disputes
    arbitrable. In ASF Buildtech Private Limited vs. Shapoorji Pallonji &
    Company Private Limited, one of us, J.B. Pardiwala J., felicitously
    put the principle thus: –

    163. The marginal note appended to Section 21 of the
    1996 Act makes it abundantly clear that the notice to be issued
    thereunder is for the purpose of “commencement of arbitration
    proceedings”. The substantive provision further makes it clear
    that the date on which a request/notice of invocation for
    referring a dispute is received by the respondent, would the
    date on which the arbitral proceedings in respect of a particular
    dispute commences. The words “particular dispute” assume
    significance in the interpretation of this provision and its
    underlying object. It indicates that the provision is concerned
    only with determining when arbitration is deemed to have
    commenced for the specific dispute mentioned in the notice.

    The language in which the said provision is couched is neither
    prohibitive or exhaustive insofar as reference of any other
    disputes which although not specified in the notice of
    invocation yet, nonetheless falls within the scope of the
    arbitration agreement. The term “particular dispute”, does not
    mean all disputes, nor does it confine the jurisdiction of the
    Arbitral Tribunal which is said to be one emanating from the

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    “arbitration agreement” to only those disputes mentioned in the
    notice of invocation, as it would tantamount to reading a
    restriction into the jurisdiction of the Arbitral Tribunal to the
    bounds of the notice of invocation instead of the arbitration
    agreement. Thus, there is no inhibition under Section 21 of the
    1996 Act for raising any other dispute or claim which is
    covered under the arbitration agreement in the absence of any
    such notice. Section 21 is procedural rather than jurisdictional
    it does not serve to create or validate the arbitration agreement
    itself, nor is it a precondition for the existence of the Tribunal’s
    jurisdiction, but merely operates as a statutory mechanism to
    ascertain the date of initiation for reckoning limitation.

    165. Section 23 sub-section (1) places an obligation upon
    the claimant to state the facts supporting his “claim”, the points
    at issue and the relief or remedy sought by way of its statement
    of claim, before the Arbitral Tribunal. Notably, the legislature, in
    the first part of the said sub-section, has deliberately and
    consciously used the term “claim” as opposed to “particular
    dispute” employed in Section 21 of the 1996 Act. Although, it
    could be said that the term “particular dispute” under Section 21
    connotes a larger umbrella within which the term “claim” under
    Section 23 would be subsumed, thereby suggesting that there is
    no scope to deviate from what was sought to be referred by the
    notice of invocation, we do not think so. We say so because, the
    requirement for providing the points at issue and the relief or
    remedy sought that exists in sub-section (1) of Section 23 of the
    1996 Act is patently absent in Section 21 of the 1996 Act, which
    clearly shows that the scope and object of these two provisions
    are at variance to each other. Further, this sub- section does not
    stipulate either explicitly or implicitly, that such “claim” must be
    the same or in tandem with the “particular dispute” in respect of
    which the notice of invocation was issued under Section 21 of
    the 1996 Act. This distinction in terminology is neither
    incidental nor redundant; rather, it reflects a conscious
    legislative design to demarcate the procedural objective of
    Section 21 from the substantive function sought or the framing
    of issues served by Section 23. Unlike Section 23, Section 21
    does not require any articulation of the relief its sole purpose is
    to indicate when arbitration is deemed to have commenced, for
    the limited purpose of computing the limitation period.

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    169. Any restriction on the nature or content of
    claims,counterclaims, or set-offs in arbitration must be sourced
    solely from the express language of Section 23 and not from
    Section 21. Section(s) 21 and 23 of the 1996 Act although
    overlap in some aspects with each other in terms of the claims
    that would ordinarily be referred to the Tribunal more often
    than not tend to coincide, yet they are by no means tethered
    together in such a manner that neither of them can survive
    without one another. The latter serves only a procedural
    function and does not condition or limit the Tribunal’s
    jurisdiction to adjudicate claims that may not have been
    specifically invoked at the threshold stage. To read such a
    limitation into the statutory scheme would run contrary to both
    the text and the object of the Act.”

    (Emphasis supplied)
    More recently in Adavya Projects Private Limited v. Vishal
    Structurals Private Limited and others
    , this Court reiterating the
    purpose and significance of a notice under Section 21 had the
    following to observe: –

    “24. At this point, it is important to note this Court’s decision
    in State of Goa v. Praveen Enterprises [State of Goa v.
    Praveen Enterprises, (2012) 12 SCC 581] wherein it was held
    that the claims and disputes raised in the notice under
    Section 21 do not restrict and limit the claims that can be
    raised before the Arbitral Tribunal. The consequence of not
    raising a claim in the notice is only that the limitation period
    for such claim that is raised before the Arbitral Tribunal for
    the first time will be calculated differently vis-à-vis claims
    raised in the notice. However, non-inclusion of certain
    disputes in the Section 21 notice does not preclude a
    claimant from raising them during the arbitration, as long as
    they are covered under the arbitration agreement. Further,
    merely because a respondent did not issue a notice raising
    counterclaims, he is not precluded from raising the same
    before the Arbitral Tribunal, as long as such counterclaims
    fall within the scope of the arbitration agreement.”

    [Emphasis supplied]

    9. The Supreme Court, while dealing with the question as to
    whether non-issuance of notice under Section 21 of the Act by the

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    Applicant would be fatal for it to pursue its claim before the
    arbitrator, observed that the object of Section 21 of the Act is only
    for the purpose of commencement of arbitral proceedings and
    Section 21 concerned only with determining the commencement of
    the dispute for the purpose of reckoning limitation. Issuance of a
    Section 21 notice may come to the aid of parties and the arbitrator
    in determining the limitation for the claim. Failure to issue a
    Section 21 notice would not be fatal to a party in Arbitration if the
    claim is otherwise valid and the disputes arbitrable. Any restriction
    on the nature or content of claims, counterclaims, or set-offs in
    arbitration must be sourced solely from the express language of
    Section 23 and not from Section 21.

    10. The Supreme Court in the case of Adavya Projects Private
    Limited Vs. Vishal Structurals Private Limited And Others
    . 6 has
    observed as under:

    “16. Section 21 falls under Part I, Chapter V of the ACA, which
    deals with “Conduct of arbitral proceedings”. The provision is
    extracted hereinbelow for reference:

    “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.”

    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

    6 (2025) 9 SCC 686

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    another date/event for determining when the arbitral proceedings
    have commenced.

    18. This Court has expounded the purpose and object underlying
    the notice referenced in Section 21 in several judgments, which can
    be stated as follows.

    19. First, the notice is necessary to determine whether claims are
    within the period of limitation or are time-barred. Section 43(1)
    ACA stipulates that the Limitation Act, 1963 shall apply to
    arbitrations as it applies to court proceedings. Further, Section
    43(2)
    provides that for the purpose of the Limitation Act, an
    arbitration shall be deemed to have commenced on the date
    referred to in Section 21. Hence, the date of receipt of the Section
    21
    notice is used to determine whether a dispute has been raised
    within the limitation period as specified in the Schedule to the
    Limitation Act
    , as held by this Court in Milkfood Ltd. v. GMC Ice
    Cream (P) Ltd.
    and State of Goa v. Praveen Enterprises.

    20. Second, the date of receipt of notice is also relevant to
    determine the applicable law to the arbitral proceedings. This can
    be understood in two senses: (i) When the arbitral proceedings are
    governed by a law that is different from the proper law of the
    contract, the governing law applies only after the arbitral
    proceedings have commenced, as held in Milkfood; and (ii) Section
    85(2)(a) ACA provides that the Arbitration Act, 1940 and the
    Foreign Awards (Recognition and Enforcement) Act, 1961 will
    apply to arbitral proceedings that commenced prior to the ACA
    coming into force, unless otherwise agreed by the parties. Hence,
    the date of invoking arbitration is necessary to determine which
    arbitration law applies to the proceedings as per the decisions in
    Milkfood and Geo Miller & Co. (P) Ltd. v. Rajasthan Vidyut
    Utpadan Nigam Ltd. Similarly
    , the applicability of amendments to
    the ACA to arbitral proceedings is determined by reference to the
    date on which such proceedings commenced as per Section 21

    21. Third, an application before the High Court or this Court under
    Section 11(6) ACA for appointment of arbitrator can be filed only
    after the respondent has failed to act as per the appointment
    procedure in the arbitration agreement. Hence, invocation of
    arbitration as provided in Section 21, and the subsequent failure of
    the respondent to appoint its arbitrator or agree to the appointment
    of a sole arbitrator as provided in Sections 11(4) and 11(5), are
    necessary for invoking the court’s jurisdiction under Section 11.

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    This is as per the decision of this Court in BSNL v. Nortel Networks
    (India) (P) Ltd. Further, the limitation period within which the
    Section 11 application must be filed is also calculated with referene
    to the date on which the appointment procedure under the
    arbitration agreement fails.”

    11. The Supreme Court in the case of Adavya Projects Private
    Limited
    (supra) held that a plain reading of the provision of
    Section 21 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.
    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.

    12. The Supreme Court expounded the purpose and object
    underlying the notice referenced in Section 21 in its judgments, as
    follows:

    (i) That the date of receipt of the Section 21 notice is used to
    determine whether a dispute has been raised within the limitation
    period as specified in the Schedule to the Limitation Act,

    (ii) That the date of invoking arbitration is necessary to
    determine which arbitration law applies to the proceedings as per
    the decision in Milkfood Ltd. Vs. M/s. GMC (P) Ltd. 7 and Geo-

    Miller & Co (P) Ltd. Vs. Chairman, Rajasthan Vidyut Utpadan
    Nigam Ltd.8
    , an applicability of amendments to the ACA to arbitral

    7 (2004) (7) SCC 288
    8 AIR 2019 SC 4244

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    proceedings is determined by reference to the date on which such
    proceedings commenced as per Section 21.

    (iii) An application under Section 11(6) of the ACA for
    appointment of arbitrator can be filed only after the respondent
    has failed to act as per the appointment procedure in the
    arbitration agreement. Hence, invocation of arbitration as provided
    in Section 21, and the subsequent failure of the respondent to
    appoint its arbitrator or agree to the appointment of an arbitrator
    as provided in Sections 11(4) and 11(5), are necessary for
    invoking the court’s jurisdiction under Section 11.

    13. It is clear that by fixing the date of commencement of
    arbitral proceedings by anchoring the same to a notice invoking
    arbitration, Section 21 of the ACA fulfils various objects that are
    time-related. The receipt of such notice is determinative of the
    limitation period for substantive disputes as well as the Section
    11
    application, and also the law applicable to the arbitration
    proceedings.

    14. The Supreme Court, in the case of State of Goa Vs. Praveen
    Enterprises9
    , held that the claims and disputes raised in the notice
    under Section 21 do not restrict and limit the claims that can be
    raised before the arbitral tribunal. The Supreme Court then
    proceeded to hold that non-service of the notice under Section 21
    and the absence of disputes being raised against respondent nos. 2
    and 3 in the appellant’s notice dated 17.11.2020 do not

    9 2012 (12) SCC 581

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    automatically bar their impleadment as parties to the arbitration
    proceedings.

    15. The Supreme Court in Adavya Projects Private Limited
    (supra) has further laid down as under:

    “46. While we agree with the decision in Alupro Building
    Systems 26 insofar as holding that the notice under Section 21 is
    mandatory, unless the contract provides otherwise, we do not agree
    with the conclusion that non-service of such notice on a party
    nullifies the Arbitral Tribunal’s jurisdiction over him. The purpose
    of the Section 21 notice is clear – by fixing the date of
    commencement of arbitration, it enables the calculation of
    limitation and it is a necessary precondition for filing an application
    under Section 11 ACA. The other purposes served by such notice –
    of informing the respondent about the claims, giving the
    respondent an opportunity to admit and contest claims and raise
    counterclaims, and to object to proposed arbitrators – are only
    incidental and secondary. We have already held that the contents of
    the notice do not restrict the claims, and any objections regarding
    limitation and maintainability can be raised before the Arbitral
    Tribunal, and the ACA provides mechanisms for challenging the
    appointment of arbitrators on various grounds. Hence, while a
    Section 21 notice may perform these functions, it is not the primary
    or only mechanism envisaged by the ACA.”

    16. The other purposes served by such notice under Section 21
    of informing the respondent about the claims, giving the
    respondent an opportunity to admit and contest claims and raise
    counter-claims, and to object to proposed arbitrators are only
    incidental and secondary. The contents of the notice do not restrict
    the claims, and any objections regarding limitation and
    maintainability can be raised before the arbitral tribunal, and the
    ACA provides mechanisms for challenging the appointment of
    arbitrators on various grounds. Hence, while a Section 21 notice

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    may perform these functions, it is not the primary or only
    mechanism envisaged by the ACA.

    17. Considering the law laid down in Adavya Projects Private
    Limited
    (supra), wherein the Supreme Court has observed that
    other than the calculation of limitation, the only purpose served by
    notice under Section 21 is of informing the Respondent about the
    claims, giving the Respondent an opportunity to admit and contest
    claims and raise counter-claims, and to object to proposed
    arbitrators are only incidental and secondary and the contents of
    the notice do not restrict the claims, and any objections regarding
    limitation and maintainability can be raised before the arbitral
    tribunal.

    18. Considering this observation, the arguments of the
    Respondent that the notice under Section 21 is not in terms of the
    arbitration clause, particularly with regard to number of three
    arbitrators being suggested cannot defeat the notice. The notice
    under Section 21 invokes the arbitration clause, specifies the
    disputes, and seeks resolution through arbitration. The name of
    sole arbitrator is suggested. There is no objection to the notice
    under Section 21 to the name of sole arbitrator on the ground that
    the agreement specifies arbitral tribunal should be of three
    arbitrators. Names of three arbitrators are not suggested by the
    Respondent. The dispute persists, and the notice under Section 21
    has not resulted in the appointment of the arbitral tribunal. On the
    failure of constitution of the arbitral tribunal, this Court gets
    jurisdiction to appoint an arbitrator under Section 11(6). The
    purpose of notice under Section 21 is time-related and if the

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    arbitral tribunal is not constituted as per the agreed procedure, this
    Court gets jurisdiction to appoint an ‘Arbitral Tribunal’ under
    Section 11(6).

    19. This Court finds that Clause 20.2, particularly the second
    part i.e. “The competent courts at the place of registered office of
    the Buyer shall have exclusive jurisdiction in relation to this Order
    and for implementation of the arbitral awards” would indicate that
    the jurisdiction to entertain the Section 11 application of this
    Court, as the Buyer office is admittedly within the jurisdiction of
    this Court. The seat of arbitration is within the jurisdiction of this
    Court. The Applicant is not required to approach the DIAC for
    appointment of arbitrator in the first instance, before issuance of
    notice under Section 21. In the instant case, the Respondent party
    has failed to act in terms of Section 11(6)(a), as they have not
    responded for appointment of arbitrator by DIAC in response to
    notice under Section 21.

    20. Rule 4.1.l. of DIAC provides proof of service of the request
    for arbitration and any documents filed therewith on the other
    parties to the satisfaction of DIAC. Thus, Rule 4.1 provides that a
    party shall file with DIAC a written request for arbitration,
    including in cases where a reference to DIAC has been made by
    any Court/Authority. The request shall, insofar as applicable, be
    accompanied by proof of service of the request for arbitration and
    any documents filed there with on the other parties, to the
    satisfaction of DIAC. Meaning thereby, the request should be
    accompanied by the notice under Section 21 invoking the
    arbitration clause, along with a copy of agreement containing and

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    arbitration clause and the response to the Section 21 notice, if any.
    In the instant case, this Court finds that the reply filed by the
    Respondent to the Section 21 notice is that the claim is barred by
    limitation and there is no question of appointing an arbitrator. No
    objections are raised as regards non-following of the procedure
    under the DIAC Rules. Since the invocation has met with resistance
    to the appointment of arbitrator on account of the claim being
    barred by limitation, further process of appointment under the
    DIAC Rules does not arise. The Respondent has not responded for
    appointment of arbitrator through DIAC. Since the seat of
    arbitration is within the jurisdiction of this Court, this Court would
    proceed to appoint an arbitrator in the matter. The parties can
    apply to the arbitrator regarding the venue and the procedure to
    be followed in terms of the contract governing the parties and the
    Arbitration Act. The invocation notice under Section 21 has failed;
    as such, the Applicant has invoked under Section 11(6) for the
    appointment of the arbitrator.

    21. Accordingly, this Court would allow the present Arbitration
    Application and pass the following order:

    ORDER

    (A) Smt. Anuja Prabhudessai, Former Judge of this Court is
    appointed as the sole Arbitrator to adjudicate upon the disputes
    and differences between the parties arising out of and in
    connection with the Agreement referred to above. The contact
    details of the Arbitrator are as under :-

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    Address : Office 106 Arcadia Building, NCPA Marg,
    Nariman Point, Mumbai – 400021.

          Mobile No. :        9823855445
    
          Email ID     :      [email protected]
    
    

    (B) A copy of this order be communicated to the learned sole
    Arbitrator by the Advocates for the Applicant within a period of 1
    week from the date of uploading of this order. The Applicant shall
    provide the contact and communication particulars of the parties
    to the Arbitral Tribunal along with a copy of this order.

    (C) Venue of the arbitration would be governed by the provisions
    of the agreement executed between the parties or as agreed and
    the parties are permitted to make submissions before the arbitrator
    in this regard.

    (D) Learned sole Arbitrator is requested to forward the statutory
    Statement of Disclosure under Section 11(8) read with Section
    12(1)
    of the Act to the Advocates for the Applicant so as to enable
    them to file the same in the Registry of this Court. The Registry of
    this Court shall retain the said Statement on the file of this
    Application and a copy of the same shall be furnished by the
    Advocates for the Applicant to the Respondent.

    (E) The parties shall appear before the learned sole Arbitrator on
    such date and at such place as indicated by her, to obtain
    appropriate direction with regard to conduct of the arbitration
    including fixing a schedule for pleadings, examination of
    witnesses, if any, schedule of hearings etc. At such meeting, the
    parties shall provide a valid and functional email address along

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    with mobile and landline numbers, if any, of the respective
    Advocates of the parties to the Arbitral Tribunal. Communications
    to such email addresses shall constitute valid service of
    correspondence in connection with the arbitration.

    (F) All arbitral costs and fees of the Arbitral Tribunal shall be
    borne by the parties equally in the first instance and shall be
    subject to any final Award that may be passed by the Tribunal in
    relation to costs.

    22. All contentions of the parties are expressly kept open to be
    raised before the Arbitrator.

    23. With the above directions, the Arbitration Application stands
    disposed of accordingly.

    (ARUN R. PEDNEKER, J.)

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