[Cites 10, Cited by 0]
Calcutta High Court
The Agri Horticultural Society Of India vs Enkon Private Limited on 1 April, 2026
OCD-9
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
AP-COM/117/2026
THE AGRI HORTICULTURAL SOCIETY OF INDIA
VS
ENKON PRIVATE LIMITED
BEFORE:
The Hon'ble JUSTICE GAURANG KANTH
Date : 1st April, 2026.
Appearance
Mr. Shuvashish Sengupta, Adv.
Mr. Kaustav Chunder, Adv.
Ms. Jayeeta Sengupta, Adv.
Mr.Tiyasha Chatterjee, Adv.
...for the petitioner
Mr. Dipanjan Sinha Roy, Adv.
...for the respondent
The Court:- The present petition has been filed under Section 11(6) of
the Arbitration and Conciliation Act, 1996, seeking appointment of an
Arbitrator.
Learned counsel for the petitioner submits that the parties had
initially entered into an agreement dated 8th October, 2014, whereby the
respondent was permitted to erect an advertisement hoarding and display
commercial advertisements on a structure measuring approximately 6000
sq. ft. situated along the boundary walls of Belvedere Road and Alipore
Road, being property belonging to the petitioner. The said agreement was for
a period of three years and expired in the year 2017.
It is further submitted that the parties thereafter entered into a fresh
agreement dated 1st November, 2021, in respect of a separate commercial
arrangement for display of hoardings, which also encompassed the subject
matter of the earlier agreement.
Learned counsel for the petitioner draws the attention of this Court to
Clause 9 of the agreement dated 1st November, 2021, which contains an
arbitration clause,which is reproduced herein:-
"i) Any dispute or difference arising out of and under
these presence including as to the interpretation of the
terms and conditions, or non-compliance or non-
payment, the same shall be resolved mutually and
Amicably by both the parties.
ii) If it cannot be so resolved amicably the same shall be
referred to the Arbitration under the provisions of the
Arbitration and Conciliation Act, 1996, оr any statutory
modification thereof in force. The Arbitration shall be
held at Kolkata and it shall be conducted in English
language only.
iii) The Courts at Kolkata alone shall have jurisdiction to
try and entertain disputes between the parties arising
under these presents including arising from the
Arbitration proceedings."
The existence of the said arbitration agreement is not disputed by the
learned counsel for the respondent.
However, learned counsel for the respondent submits that the
respondent has already instituted Title Suit No. 1282 of 2025 before the
learned 1st Civil Judge (Senior Division) at Alipore, wherein an ad interim
order of temporary injunction has been granted. It is further submitted that
an application under Section 8 of the Arbitration and Conciliation Act, 1996
is pending adjudication before the said Court, and, therefore, the present
petition under Section 11 is not maintainable.
This Court has considered the submissions advanced by the learned
counsel for the parties and perused the materials placed on record. The
issue as to whether the pendency of a civil suit or an application under
Section 8 of the Act bars the exercise of jurisdiction under Section 11 is no
longer res integra.
Section 8(3) of the Arbitration and Conciliation Act, 1996 expressly
provides that notwithstanding the pendency of an application under Section
8(1), an arbitration may be commenced or continued. The Hon'ble Supreme
Court, in Vijay Kumar Sharma @ Manju v. Raghunandan Sharma @
Baburam & Ors., reported in (2010) 2 SCC 486, has held that the
pendency of proceedings before a civil court does not preclude the
appointment of an arbitrator under Section 11 of the Act. The relevant
portion of the said Judgment reads, inter alia, as follows:
"12. Having regard to the specific provision in
Section 8(3) providing that the pendency of an
application under Section 8(1) will not come in the way
of an arbitration being commenced or continued, we are
of the view that an application under Section 11 or
Section 15(2) of the Act, for appointment of an arbitrator,
will not be barred by pendency of an application under
Section 8 of the Act in any suit, nor will the designate of
the Chief Justice be precluded from considering and
disposing of an application under Section 11 or 15(2) of
the Act.
13. It follows that if an arbitrator is appointed by
the designate of the Chief Justice under Section 11 of
the Act, nothing prevents the arbitrator from proceeding
with the arbitration. It also therefore follows that the
mere fact that an appeal from an order dismissing the
suit under Order 7 Rule 11 CPC (on the ground that the
disputes were required to be settled by arbitration) is
pending before the High Court, will not come in the way
of the appointment of an arbitrator under Section 11
read with Section 15(2) of the Act, if the authority under
Section 11 finds it necessary to appoint an arbitrator.
Therefore, the first contention of the appellant is liable to
be rejected."
In view of the aforesaid statutory provision and the law laid down by
the Hon'ble Apex Court, the objection raised by the respondent with regard
to maintainability cannot be sustained.
Since the agreement between the parties admittedly contains a valid
arbitration clause and disputes have arisen between the parties, this Court
is satisfied that a case has been made out for appointment of an arbitrator
under Section 11(6) of the Arbitration and Conciliation Act, 1996.
Accordingly, this Court appoints Mr. Arnab Chakraborty, Advocate
(Mob. No. 9830676096), as the sole arbitrator to adjudicate the disputes
between the parties. The learned Arbitrator shall communicate his consent
to the Registrar, Original Side, within a period of two week from the date of
receipt of this order.
The appointment of the learned Arbitrator shall be subject to
compliance with Section 12 of the Arbitration and Conciliation Act, 1996.
The learned Arbitrator shall be entitled to fix his remuneration in
accordance with the Fourth Schedule to the Act, unless otherwise agreed
between the parties.
The petitioner is directed to communicate a copy of this order to the
learned Arbitrator forthwith for necessary compliance.
With the aforesaid directions, the present petition stands disposed of.
(GAURANG KANTH, J.)
S. De/gb.
