Bombay High Court
Usha Dilip Tanna vs Vishwanath V. Angadi on 20 April, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
2026:BHC-OS:10316-DB
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rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.839 OF 2023
Usha Dilip Tanna ....Petitioner
V/S
Vishwanath Angadi & Ors. ....Respondents
Mr.Karl Tamboly a/w Mr.Yash Momaya, Mr.Rohit Vaishya and
Ms.Teresa Daulat i/b YMK Legal for the Petitioner.
Ms.Niyami Jariwala i/b Ms.Nandita Gopalan for Respondent
Nos.2 to 4.
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ
DATE : 20th APRIL, 2026
JUDGMENT (PER BHARATI DANGRE, J) :
1 ‘Rule’. By consent of Parties, Petition is heard finally.
2 The present Writ Petition filed by the Petitioner seek a
direction against Respondent No. 1, the Arbitrator conducting the
arbitration proceedings, as it is the claim of the Petitioner that
the proceedings are non-est, in absence of an Arbitration
Agreement between the Parties nor has the Petitioner ever
appointed and or consented to the appointment of Respondent
No.1 as the Arbitrator and no court has exercised its power under
Section 11 of the Arbitration and Conciliation Act, 1996 (in short,
Digitally signed
RAJSHREE by RAJSHREE
KISHOR KISHOR MORE
MORE Date: 2026.04.22
20:21:23 +0530
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the Act of 1996) appointing him as the Arbitrator.
3 We have heard the learned counsel, Mr. Karl Tamboly for
the Petitioner and the learned counsel Ms.Niyami Jariwala for
Respondent Nos.2 to 4.
In pursuance to the notice issued by us the learned
Arbitrator through the Registrar (Judicial) has also forwarded
his submissions/statements for consideration.
4 The factual background in brief would reveal that the
Petitioner’s father, Mr. Bhagwandas, is the Owner of “Kolipathy
Tea & Coffee Estate” and the “Kolipathy Tea “Kolipathy Factory”
situated at Ootacamund, Nilgiris. He expired on 5th December
1988, leaving behind the Petitioner, her 2 sisters (Respondent
Nos. 5 and 6) and her mother, as his legal heirs.
During his lifetime, the Petitioner’s father had agreed to sell
the Kolipathy Estate to Respondent No.2. After several years,
Respondent No.3, somewhere in the year 1999, approached the
Petitioner’s mother and sought execution of a Sale Deed
/Conveyance. At that juncture the Petitioner’s mother, the
Petitioner and her sisters (Respondent Nos. 5 and 6) had obliged
Respondent No.3 and executed a Power of Attorney in favour of
Respondent No.2, as per their instructions. Pertinently, neither
the Petitioner’s mother nor the Petitioner, nor the Petitioner’s
sisters were aware of the transaction. However, merely on the
representation of Respondent No.3 and in good faith they
acceded to the request of Respondent No.3.
However, even thereafter it seems that Respondent Nos.2
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Surprisingly, on 11th April 2022, the Petitioner received a Letter
dated 5th April 2022 (addressed to the Petitioner and her
sisters) from one Mr. S. Sidhartha Vishnu, Advocate on behalf of
Respondent Nos.2 and 3 invoking arbitration and calling upon the
Petitioner and her sisters to convey their willingness to nominate
Respondent No.1 i.e. Mr. Vishwananth Angadi as the Sole
Arbitrator.
5 The Petitioner was taken by surprise to receive the letter as
there was no existing Arbitration Agreement between the
Petitioner and the Respondent No.2. The Petitioner, therefore,
responded to the said letter on 11 th April 2022 clarifying that
there was no Arbitration Agreement and in fact the letter of 5th
April, 2022, also did not disclose existence of any dispute
between the Parties and the claims, if any were barred by
limitation.
However, without paying any heed to the aforesaid
communication, it appears that Respondent No.1 proceeded with
the arbitral proceedings by assuming jurisdiction and fixed the
date of first appearance and for convening the first preliminary
meeting. As the Petitioner had never consented for arbitration,
she once again addressed a letter to the Arbitrator alleging that
invocation of arbitration by Respondent No.2 was contrary to the
provisions of Act of 1996, as there was no Arbitration Agreement
between the Parties and the proceedings being undertaken by
Respondent No.1, were completely without jurisdiction.
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6 The Petitioner is constrained to approach the Court as she
narrates that the Arbitrator is proceeding with the arbitral
proceedings and has passed some orders by noting absence of the
Petitioner and has continued the arbitration proceedings ex
parte.
According to the Petitioner, the continuation of the
arbitration is grave abuse of process of law, as Respondent No.1
had no authority to conduct the arbitration and by relying upon
the orders passed by the learned arbitrator, it is sought to be
canvassed that the Arbitrator is not a fair and impartial
Arbitrator and the proceedings which are without jurisdiction,
cannot be permitted to be continue.
7 Mr. Tamboly by inviting our attention to the Act of 1996,
and in specific Section 7 would submit that in absence of any
Arbitration Agreement existing between the Parties, the arbitral
proceedings cannot be continued. He would submit that the
Arbitrator is creation of a Contract and in absence of such a
Contract, permitting the dispute to be resolved through arbitral
proceedings, any award or final conclusion drawn by the
Arbitrator would be a nullity.
According to him, the consensus to submit to the
jurisdiction of Arbitral Tribunal forms the corner-stone of
arbitration and since the Petitioner had never consented for the
dispute with Respondent No.2, being referred to arbitration, the
Petition deserve to be allowed.
8 The learned counsel for the Respondent has raised an
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objection about maintainability of the Petition as she would
submit that the remedy available to the Petitioner, being
aggrieved by any order passed by the Arbitral Tribunal is in form
of an Appeal as prescribed under the provisions of Act of 1996,
and a Writ Petition under Article 226 of the Constitution of India
would not lie.
Apart from this, it is also the submission of the learned
counsel that the claimants had had filed a Memo before the
Arbitral Tribunal on 27th July 2023, where it had expressed its
intention to remove Mrs.Usha Dilip Tanna, the Petitioner from the
Arbitral proceedings, and, therefore, she should have no
grievance.
Since we have received the submissions/statement from the
learned Arbitrator through the Registry we have perused the
same. The learned arbitrator has raised an objection that the
Seat of Arbitration of the arbitral proceedings conducted by him
is Bengaluru, Karnataka and, therefore, it will be the Court in
Bengaluru or the High Court of Karnataka, Bengaluru, which
would have jurisdiction to entertain the Petition, if at all it
deserve to be entertained and this Court has no jurisdiction.
As far as the proceedings being conducted by him, Para 4 of
the submissions read thus :
“04. It is submitted that Mr.Joseph Antony, Advocate, JSM Law
Partners, Advocates, Commerce House, Nos.406 and 407, 9/1,
Cunningham Road, Bengaluru-560 052, as per letter addressed to the
1st Respondent, Sole Arbitrator dated 22-07-2022 requested the
Tribunal/Respondent No.1 to enter upon reference in view of the
Petitioner and Respondents Nos. 5 & 6 and another, inter-se, agreeing
for nomination of the 1st Respondent as the Sole Arbitrator to
adjudicate the dispute between the parties arising out of immovable
property of the ownership of “M/s.Kolipathy Tea & Coffee Estate and
Kolipathy Tea Factory”. Relevant portion of unnumbered para 2 of the5/17
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J-WP-839-2023.odtletter of request of Mr.Joseph, Advocate read thus:
“The parties have inter-se (the petitioner along with Respondents 5
& 6) agreed upon your name to act as the Sole Arbitrator and
requesting the 1st Respondent to enter reference as Sole Arbitrator”.”
It is stated that in pursuance to the above request of Mr.
Joseph to appear before the Tribunal on behalf of Respondent
Nos. 2 and 3 and in view of the consent of Respondent Nos. 5 and
6 and also the Petitioner Usha Tanna, the Tribunal issued notice
of its first sitting on 29th July, 2022, calling upon the Parties to
mark appearance before him on 17th August 2022.
The Arbitrator had adopted a stand that pursuant to his
nomination as Sole Arbitrator by the Parties, he has entered the
reference for adjudicating the disputes made over to him by the
parties. He has also given the gist of the sittings held by him and
stated that as per record 33 sittings are held and since
Responded Nos.2 to 4 in the Petition did not lead evidence of filed
Application to seek compromise, the Tribunal recorded that the
proceedings are kept in abeyance for the time being until further
orders.
9 We have heard the rival contentions and we have also
before us the report of the learned Arbitrator, the Former
Principal City Civil and Sessions Judge dated 27 th March, 2026,
which is accompanied with necessary documents.
10 The Arbitration Agreement. is defined in Section 7 of
the Act of 1996, to mean an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which
may arise between the parties in respect of a defined legal
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relationship, whether contractual or not. As per Sub Section (2)
of Section 7, an Arbitration Agreement may be in form of an
arbitration clause in a contract or in form of a separate
agreement, but an arbitration agreement shall be in writing. An
arbitration agreement is in writing if it is contained in –
“(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of
telecommunication [including communication through electronic
means] which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the
existence of the agreement is alleged by one party and not denied by
the other.”
11 While dealing with the objection of maintainability of the
Petition under Article 226 and 227 of the Constitution of India,
we must note that the Act of 1996 is a complete Code and the legal
framework contained in the statute is towards, giving effect to
the intention of the Parties to resolve their disputes through the
process of arbitration. As per Section 8 of the Act, a judicial
authority before which an action is brought in a matter, which is
the subject of an Arbitration Agreement, then notwithstanding
any judgment, decree, or order of the Supreme Court or any
Court, the parties shall be referred to arbitration unless and until
it is found. that prima facie no valid Arbitration Agreement exist.
The procedure to be followed by the Arbitral Tribunal, upon
it being constituted by appointment of Arbitrator under section
11 of the Act of 1996, as well as the jurisdiction of Arbitral
Tribunal and conduct of arbitral proceedings is specifically
provided in the Act itself. The Act contains specific provision
for passing of the Arbitral Award, the time limit for passing of the
Award and also setting out its contents.
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Chapter VII of the Act prescribe the remedy/ recourse
against the Arbitral Award and Section 35 has attached finality
to the Arbitral Award with a specific provision being included in
Chapter VIII for enforcement of the Award. Further, Appeals in
form of Section 37 lie to the Court authorised by law on the
grounds specified therein.
12 A reading of the provisions in the Act of 1996, thus would
reveal that Arbitration and Conciliation Act, 1996, is a self-
contained code and by virtue of Section 5, the judicial
intervention in the matters governed by part one of the
Arbitration Act has been minimized except to the extent where it
is permissible. The provisions of the Act of 1996, are geared
towards ensuring minimum judicial interference, and recognising
the competence of the Arbitrator to rule on his own jurisdiction.
13 Arbitration being a dispute resolution mechanism it arises
out of a contractual relationship between the parties and
therefore, the Arbitrator is a creature of the Agreement and shall
exercise the powers subject to the terms of his appointment and
subject to the provisions of the Act of 1996 and the Arbitrator
shall confine itself to the jurisdiction as conferred by the
Arbitration Agreement. It is not permissible for Arbitral Tribunal
to travel beyond the specific confines of the Arbitration
Agreement as the Arbitrator owes his existence to the Agreement
between the Parties, where the Parties have agreed to refer the
dispute to him.
The existence of an Arbitration Agreement as defined under
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Section 7 of the Act of 1996, is a condition precedent for exercise
of power to appoint an Arbitrator/Arbitral Tribunal and in
absence of an Arbitration Agreement or a consensus expressed
by the Parties to refer the dispute for arbitration, the arbitration
cannot take place. Since the appointment of the Arbitrator must
receive by an Arbitration Agreement or when there is a
consensus for referring the dispute to an Arbitrator/Arbitral
Tribunal or when the Arbitrator is appointed upon one party
invoking the arbitration and when other party did not take any
steps, then under Section 11 of the Act of 1996, the arbitration
proceedings can commence.
In M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit,
Pachama, District Sehore and Ors. vs. Modi Transport Service 1,
with reference to Section 21 of the Arbitration Act, it is held that
a pre-existing arbitration agreement is essential for reference to
arbitration and in its absence there is no power/authority or
jurisdiction to refer unwilling parties to arbitration. In Para 18
and 19 the Apex Court has categorically held thus :
“18. Interpreting Section 21 of the Act, a Full Bench of the Punjab
and Haryana High Court in Firm Khetu Ram Bashamber Dass v.
Kashmiri Lal Rattan Lal [Firm Khetu Ram Bashamber Dass v.Kashmiri
Lal Rattan Lal, 1959 SCC OnLine Punj 102] has held : (SCC OnLine
Punj)
“Thus, before any matter involved in a suit pending in a Court can
be referred to arbitration (a) there must be an agreement amongst all
the parties interested that any matter in dispute between them in the
suit shall be referred to arbitration; (b) if they come to such an
agreement, then they have to make an application in writing to the
Court concerned; and (c) thereafter, the Court has to pass an order
referring the dispute to the arbitrator agreed upon between the parties.
There can be no manner of doubt that if there is no agreement
between all the parties who are interested in the case and if the
1 (2022) 14 SCC 345
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application is not made on behalf of them all, the reference made by the
Court is bad and the award based on such a reference is invalid in law.
This view has been consistently taken by all the High Courts. In Negi
Puran v. Hira Singh [Negi Puran v. Hira Singh, 1909 SCC OnLine All 76]
, while dealing with provisions of the Civil Procedure Code, 1882,
similar to Sections 21 and 23 of the Arbitration Act, Stanley, C.J. and
Banerji, J., of the Allahabad High Court held that if there was no
application signed by all the parties who were interested in the
settlement of the suit, the reference and the award given, thereafter,
would be invalid. The same view was taken in Haswa v. Mahbub [Haswa
v. Mahbub, 1911 SCC OnLine All 230] , by another Division Bench of the
same Court. In Gopal Das v. Baij Nath [Gopal Das v. Baij Nath, 1925 SCC
OnLine All 283] , Sulaiman, J., (as he then was), referred to a number
of decisions of Allahabad and Calcutta High Courts and observed as
follows : (Gopal Das case [Gopal Das v. Baij Nath, 1925 SCC OnLine All
283] , SCC OnLine All)
‘… it is necessary that all persons who are interested in the matter
which is in difference between the parties and which is going to be
referred to arbitration, should join. Although it is not absolutely
necessary that they should all sign the application made to the Court, it
is necessary that they should agree to the reference.’
See also Tej Singh v. Ghasi Ram [Tej Singh v. Ghasi Ram, 1927 SCC
OnLine All 454] . In Ram Harakh Singh v. S. Mumtaz Husain [Ram
Harakh Singh v. S. Mumtaz Husain, 1948 SCC OnLine All 229] , the
question of acquiescence and ratification was also considered. Following
Gopal Das v. Baij Nath [Gopal Das v. Baij Nath, 1925 SCC OnLine All
283] and T.S. Subba Rao v. Appadurai Aiyar [T.S. Subba Rao v.
Appadurai Aiyar, 1924 SCC OnLine Mad 329] , Ghulam Hasan, J., held
that the foundation of the jurisdiction of the Court is the consent of the
parties and the subsequent ratification does not validate the reference
which was void ab initio. Calcutta and Madras High Courts have also
taken a similar view. The question was considered by a Full Bench of
the Calcutta High Court inLaduram Nathmull v.Nandalal Karuri
[Laduram Nathmull v. Nandalal Karuri, 1919 SCC OnLine Cal 377] ,
Mookerjee, J., AIR at pp. 114-15 of the report observed as follows :
(Laduram Nathmull case[Laduram Nathmull v. Nandalal Karuri, 1919
SCC OnLine Cal 377] , SCC OnLine Cal)
‘… The foundation of jurisdiction here is the agreement amongst all the
parties interested that the matters in difference between them shall be
referred to arbitration. If all the parties interested do not apply and yet
an order of reference is made, the order is illegal because made without
jurisdiction. If an award follows on the basis of that reference, it is
equally illegal, because it is founded upon a reference made without
jurisdiction.’
See also Dooly Chand v. Mamuji Musaji [Dooly Chand v.Mamuji Musaji,
1916 SCC OnLine Cal 205] and Khan Mohmed v. Chella Ram [Khan
Mohmed v. Chella Ram, 43 IC 165] andT.S. Subba Rao v. Appadurai
Aiyar [T.S. Subba Rao v. Appadurai Aiyar, 1924 SCC OnLine Mad 329] .
In T.S. Subba Rao v. Appadurai Aiyar [T.S. Subba Rao v. Appadurai10/17
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J-WP-839-2023.odtAiyar, 1924 SCC OnLine Mad 329] , Devadoss, J., while considering the
provisions of Para 1 of Schedule II, Civil Procedure Code,–which in
substance is the same as Section 21 of the Arbitration Act–observed as
follows : (T.S. Subba Rao case [T.S. Subba Rao v. Appadurai Aiyar, 1924
SCC OnLine Mad 329] , SCC OnLine Mad)
‘What gives the Court jurisdiction to refer the matter to arbitration is
consent of all the parties. Consent subsequently given cannot give
jurisdiction to the Court which it did not possess at the time when it
referred the matter to arbitration.’ “
19. In our opinion, the aforesaid ratio in Kashmiri Lal Rattan Lal case
[Firm Khetu Ram Bashamber Dass v. Kashmiri Lal Rattan Lal, 1959
SCC OnLine Punj 102] expresses the correct position in law. Arbitration
is an alternative to the court adjudication process by a private forum
chosen by the parties. Normally reference can be made or even directed
to the arbitrator only if a pre-existing arbitration agreement subsists
between the parties. In the absence of a pre-existing arbitration
agreement, the court has no power, authority or jurisdiction to refer
unwilling parties to arbitration. Therefore, the word “agree” in Section
21 of the Act refers to consensus ad idem between the parties who take
a considered decision to forego their right of adjudication before a court
where the suit is pending, and mutually agree to have the subject-
matter of the suit or part thereof adjudicated and decided by an
arbitrator.”
14 With this position emerging from the provisions of the Act
of 1996, when the Petitioner is raising a specific contention that
there is no Arbitration Agreement between the Parties and the
Petitioner never consented to refer the dispute with Respondent
No.2, for the Arbitration, the objection raised about
maintainability of the Petition under Article 226, ….. not being
available, as there is remedy of filing the proceedings under the
Act itself, deserve a rejection at the outset. We find that in cases,
where it is permissible to the Court to exercise the power of
judicial review in the wake of the gross illegality, the lack of
jurisdiction in this specific case, when it is the contention of the
Petitioner, and we find substance in the same, that the Arbitral
Tribunal is patently lacking the jurisdiction as there is no
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Arbitration Agreement conferring the power on the Arbitrator to
adjudicate the dispute.
The remedy available under the statute in form of Section
34 provide for challenge being raised to the Arbitral Award, but in
the case before us, where the contention of the Petitioner and
which is not disputed by the learned counsel representing
Respondent No.2 is that there exist no Arbitration Agreement
between the Parties, we deem it appropriate to exercise our power
of judicial review to prevent the Arbitrator from proceeding with
the arbitral proceedings without jurisdiction, and merely because
the Act of 1996, provide for Appeals, we do not consider our
power under Article 226 of the Constitution of India as the
Petitioner has raised a jurisdictional issue as Arbitral Tribunal is
proceeding with the arbitration proceedings in absence of an
existing valid Arbitration Agreement, rendering the proceedings
without jurisdiction.
15 We are supported in our view by the decision of this court in
Luxempire Realty Private Ltd. vs. Eminence Landmarks LLP &
Ors.2 where a coordinate bench of this court observed thus :-
“76. We may also refer to the decision of the Supreme Court in M/s
Tamil Nadu Cements Corporation Limited Vs. Micro and Small
Enterprises Facilitation Council and Anr. in which the issue which fell
for consideration of the Supreme Court was whether a writ petition
under Article 226 of the Constitution of India would be maintainable
against an order passed by the Micro and Small Enterprises
Facilitation Council in exercise of power under Section 18 of the Micro,
Small and Medium Enterprises Development Act, 2006, which is a
power to make a reference to arbitration. It is in such context the Court
considering the position in law, in regard to exercise of jurisdiction by2 WP No.2068/2025
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J-WP-839-2023.odtthe Court under Article 226 of the Constitution reiterated the following
principles in regard to jurisdiction of the High Court:
“13. The access to High Courts by way of a writ petition under Article
226 of the Constitution of India, is not just a constitutional right but
also a part of the basic structure. It is available to every citizen
whenever there is a violation of their constitutional rights or even
statutory rights. This is an inalienable right and the rule of availability
of alternative remedy is not an omnibus rule of exclusion of the writ
jurisdiction, but a principle applied by the High Courts as a form of
judicial restraint and refrain in exercising the jurisdiction. The power
to issue prerogative writs under Article 226 of the Constitution is
plenary in nature and the same is not limited by any provision of the
Constitution and cannot be restricted or circumscribed by a statute. It
has been well settled through a legion of judicial pronouncements of
this Court that the writ courts, despite the availability of alternative
remedies, may exercise writ jurisdiction at least in three contingencies
-i) where there is a violation of principles of natural justice or
fundamental rights; ii) where an order in a proceeding is wholly
without jurisdiction; or iii) where the vires of an Act is challenged.
Noticeably, the MSEFC as a statutory authority performs a statutory
role and functions within the four corners of the law.
14. Following the aforesaid dictum, this Court in Harbanslal Sahnia v.
Indian Oil Corporation, had taken notice of the fact that the High Court
had referred to the arbitration clause which the writ petitioner could
take recourse to, to hold that the rule of exclusion of writ jurisdiction is
a rule of discretion and not of compulsion. In appropriate case, in spite
of availability of alternative remedy, the writ courts can exercise its
jurisdiction at least in three contingencies, as referred to above. In the
facts of the said case, this Court interfered observing that there were
peculiar circumstances as the dealership had been terminated on an
irrelevant and non-existence cause. Therefore, there was no need to
drive the parties to initiate arbitration proceedings. Following the
judgments in Whirlpool Corporation v. Registrar of Trade Marks,
Mumbai and Harbanslal Sahnia (supra), this Court in Radha Krishan
Industries v. State of Himachal Pradesh laid down the following
principles:
“27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can
be exercised not only for the enforcement of fundamental rights, but for
any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ petition.
One of the restrictions placed on the power_of the High Court is where
an effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where: (a) the
writ petition has been filed for the enforcement of a fundamental right
protected by Part III of the Constitution; (b) there has been a violation
of the principles of natural justice; (c) the order or proceedings are
wholly without jurisdiction; or (d) the vires of a legislation is
challenged.
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27.4. An alternate remedy by itself does not divest the High Court of its
powers under Article 226 of the Constitution in an appropriate case
though ordinarily, a writ petition should not be entertained when an
efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the
remedy or procedure for enforcing the right or liability, resort must be
had to that particular statutory remedy before invoking the
discretionary remedy under Article 226 of the Constitution. This rule
of exhaustion of statutory remedies is a rule of policy, convenience and
discretion.”
16 The learned counsel for Respondent No.2 did not dispute
that there is no existing Arbitration Agreement in writing
executed between the Parties, but she would submit that JSM
Law Partners addressed a communication to Respondent No.1 on
22nd July 2022, where a reference was made to the request on
behalf of the present Petitioner Usha Tanna as well as Purvi
Chothani and Trupti Prasad..
We have perused the said document, which is annexed along
with the submission of the Arbitrator and we must refer to its
contents, which are strongly disputed by Mr.Tamboly, which read
thus :
” We write to you on behalf of Mrs.Usha Dilip Tanna, residing at Flat
No.63/64, Umang Bld 6th Floor 114, Kashibai Navrang Marg, Near
Gamdevi Police Station, Grant Road, Mumbai- 400 007; Mrs.Purvi
Rohit Chothani, residing at 9 A Jeevan Asha, 60A Peddar Road,
Mumbai-400 026; and Mrs.Trupti Prased residing at 523, 2 nd Main, 3rd
Block, ISRO RMV Extension, 2nd Stage, Bangalore – 560094
(hereinafter referred to as “our Clients”).
The father of our Clients was the absolute owner of the “Kolipathy Tea
& Coffee Estate and Kolipathy Tea Factory” (Hereinafter referred to as
“Estate”). However, the father of our Clients had expired on December
12, 1998 leaving behind our Clients as the legal heirs of the Estate.
However, certain dispute has arisen between our Clients and an entity
by the name Dethlefsen & Balk Pvt. Ltd. and also Mr.Shailesh Bhansali.
The partie shave inter-se agreed upon your name to act as the Sole
Arbitrator. Copy of the arbitration notice received from Dethlefsen &
Balk Pvt. Ltd. and Mr.Shailesh Bhansali nominating you as the
Arbitrator is enclosed herewith.
In view of the foregoing, we request you to enter reference as the Sole
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According to Mr.Tamboly, the Petitioner never consented for
a reference to arbitration and in fact Petitioner contested to the
appointment of arbitrator by repeatedly addressing
communications, and all those communications are placed on
record along with the Petition.
Cumulative reading of the said communications would
disclose that though the Petitioner from the very beginning
contested the appointment of the Arbitrator and even addressed
communication to the learned Arbitrator, requesting for
terminating the proceedings, failing which it was indicated that
appropriate legal proceedings shall be initiated, despite this the
learned Arbitrator did not stall the proceedings and rather
marked absence of the Respondent and continued to entertain the
claim filed before him.
17 The learned counsel for Respondent No.2 has placed before
us a memo filed on behalf of the claimants and we must refer to its
contents and we are surprised to note that the deletion of name of
Usha Tanna is sought from the Arbitral proceedings on the
ground that she had never participated in the proceedings. The
memo read thus :
“3 It is also submitted that pending the present proceedings the
parties (i.e. Claimants and Respondents 1 & 2) were mutually arrived
at a settlement and a duly signed settlement agreement will also be
filed within next hearing with acceptable terms for two parties.
4 It is submitted that, in order to safeguard the interest of the
Respondent 1 in the present proceedings it is just and necessary to
remove Respondent No.1 from the party proceedings, since
Respondent 1 has not been participated to the present proceedings and
the settlement which will be entered between the Claimants and15/17
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J-WP-839-2023.odtRespondents is in no way connected to the Respondent No.1.”
We are surprised by the above approach, as merely because
a party do not participate in arbitral proceedings, the claimant
seeking its deletion is something unknown in law.
We are not at all impressed by the said stand adopted, as
once we are of the view that the arbitration proceedings cannot
proceed in absence of an Arbitration Agreement between the
Parties and since existence of valid Arbitration agreement is a
sine qua non for conduct of arbitral proceedings, in exercise of our
writ jurisdiction, we declare that Respondent No.1/the learned
Arbitrator has no jurisdiction. to continue with the arbitral
proceedings. Since we have expressed that the arbitral
proceedings are being conducted by Respondent No.1 without
jurisdiction, we also dismiss the objection that this Court shall
exercise no jurisdiction as the Seat of arbitration is in Bengaluru
as the Petitioner before us has invoked our writ jurisdiction and
as far as this jurisdiction is concerned the cause of action has
arisen as the Petitioner is resident of Mumbai and there is no
question of Seat determine the jurisdiction of the Court since we
have concluded that there is no arbitration agreement between
the Parties which has determined the seat/venue of arbitration.
18 In the wake of above, we allow the Writ Petition in terms of
pray clause (a) and (b) which reads thus :
“(a)This Hon’ble Court be pleased issue a writ in the nature of
mandamus or any other appropriate writ, order or direction against
the Respondent No.1 restraining him from proceeding with the said
Arbitration;
(b) This Hon’ble Court be pleased to pass an order declaring that the
said Arbitration is a nullity and/or otherwise bad in law.”
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J-WP-839-2023.odt
We also issue a direction restraining Respondent No.1 from
proceeding ahead with the arbitration proceedings, as we are
satisfied that there is no Arbitration Agreement between the
Parties, which had authorised Respondent No.1 to enter the
reference and any continuation of such proceedings is not in
accordance with law, and the proceedings cannot continue.
Writ Petition is made absolute in aforesaid terms.
[MANJUSHA DESHPANDE, J.] [BHARATI DANGRE, J.]
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