Sh. Lajpat Batra vs M/S E-Pack Polymers Pvt. Ltd. Unit-Ii ... on 9 April, 2026

$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 09.04.2026
+ ARB.P. 31/2026
SH. LAJPAT BATRA .....Petitioner
Through: Mr. Arun Bhattacharya,
Advocate.
versus

M/S E-PACK POLYMERS PVT. LTD. UNIT-II THROUGH
ITS DIRECTOR & ANR. .....Respondents
Through: None.

CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR

% JUDGEMENT (ORAL)

1. The present Petition has been filed under Section 11(6) of the
Arbitration and Conciliation Act, 19961, seeking the constitution of
an Arbitral Tribunal to adjudicate upon the disputes inter se the parties
arising out of the Contract dated 06.09.20242.
2. Clause 10 of the Contract provides for the adjudication of
disputes arising between the parties by way of Arbitration. Clause 10
of the Contract reads as follows:
"10. Arbitration:
In the event of any dispute or difference between the parties arising
howsoever from this contract, the same shall, unless amicably
settled, be referred to two arbitrators, one to be appointed by each
party. The two arbitrators shall, before entering upon the reference
appoint an umpire. The decision of the two arbitrator's o the
umpires shall be final and binding between the parties. The

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Act
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Contract
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arbitration proceedings shall take place in Delhi. There is an
arrangement for arbitration within the meaning of Indian
Arbitration Act 1940 including any statutory re-enactment or
modification thereof."

3. It is a matter of record that the Petitioner invoked the said
Arbitration clause vide Legal Notice dated 16.09.2025, in terms of
Section 21 of the Act.
4. As per the record, Respondent No. 1 is a company, and
Respondent No. 2 is a Director of Respondent No. 1.
5. A perusal of the record reveals that the Respondents have been
duly served, however, they have chosen not to enter an appearance in
the present proceedings. The record further reflects that, in the course
of service through speed post, Respondent No. 1 refused to accept
notice of the present proceedings. In such circumstances, this Court
has no hesitation in holding that service upon the Respondents stands
duly effected in accordance with law. Consequently, there exists no
impediment for this Court to proceed further with the present
proceedings.
6. This Court has heard learned counsel appearing for the
Petitioner and, with his able assistance, has perused the material
placed on record.
7. At this juncture, it is apposite to note that the legal position
governing the scope and standard of judicial scrutiny under Section
11(6) of the Act is no longer res integra. A three-Judge Bench of the
Hon'ble Supreme Court in SBI General Insurance Co. Ltd. v. Krish
Spinning3, after taking into consideration the authoritative
pronouncement of the seven-Judge Bench in Interplay Between

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(2024) 12 SCC 1
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Arbitration Agreements under Arbitration Act, 1996 & Stamp
Act, 1899, In re4, comprehensively delineated the contours of judicial
intervention at the stage of Section 11 of the Act. The excerpt of Krish
Spg (supra) reads as under: -
"(c) Judicial interference under the 1996 Act
110. The parties have been conferred with the power to decide and
agree on the procedure to be adopted for appointing arbitrators. In
cases where the agreed upon procedure fails, the courts have been
vested with the power to appoint arbitrators upon the request of a
party, to resolve the deadlock between the parties in appointing the
arbitrators.
111. Section 11 of the 1996 Act is provided to give effect to the
mutual intention of the parties to settle their disputes by arbitration
in situations where the parties fail to appoint an arbitrator(s). The
parameters of judicial review laid down for Section 8 differ from
those prescribed for Section 11. The view taken in SBP &
Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 and affirmed in Vidya
Drolia v. Durga Trading Corpn., (2021) 2 SCC 1 that Sections 8
and 11, respectively, of the 1996 Act are complementary in nature
was legislatively overruled by the introduction of Section 11(6-A)
in 2015. Thus, although both these provisions intend to compel
parties to abide by their mutual intention to arbitrate, yet the scope
of powers conferred upon the courts under both the sections are
different.
112. The difference between Sections 8 and 11, respectively, of the
1996 Act is also evident from the scope of these provisions. Some
of these differences are:
112.1. While Section 8 empowers any "judicial authority" to refer
the parties to arbitration, under Section 11, the power to refer has
been exclusively conferred upon the High Court and the Supreme
Court.
112.2. Under Section 37, an appeal lies against the refusal of the
judicial authority to refer the parties to arbitration, whereas no such
provision for appeal exists for a refusal under Section 11.
112.3. The standard of scrutiny provided under Section 8 is that of
prima facie examination of the validity and existence of an
arbitration agreement. Whereas, the standard of scrutiny under
Section 11 is confined to the examination of the existence of the
arbitration agreement.
112.4. During the pendency of an application under Section 8,
arbitration may commence or continue and an award can be passed.
On the other hand, under Section 11, once there is failure on the

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(2024) 6 SCC 1
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part of the parties in appointing the arbitrator as per the agreed
procedure and an application is preferred, no arbitration
proceedings can commence or continue.
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.
****
117. In view of the observations made by this Court in Interplay
Between Arbitration Agreements under the Arbitration Act, 1996
& the Stamp Act, 1899, In re, (2024) 6 SCC 1, it is clear that the
scope of enquiry at the stage of appointment of arbitrator is limited
to the scrutiny of prima facie existence of the arbitration
agreement, and nothing else. For this reason, we find it difficult to
hold that the observations made inVidya Drolia v. Durga Trading
Corpn., (2021) 2 SCC 1 and adopted inNTPC Ltd. v. SPML Infra
Ltd., (2023) 9 SCC 385 that the jurisdiction of the Referral Court
when dealing with the issue of "accord and satisfaction" under
Section 11 extends to weeding out ex facie non-arbitrable and
frivolous disputes would continue to apply despite the subsequent
decision inInterplay Between Arbitration Agreements under the
Arbitration Act, 1996 & the Stamp Act, 1899, In re, (2024) 6 SCC
1.
****
119. The question of "accord and satisfaction", being a mixed
question of law and fact, comes within the exclusive jurisdiction of
the Arbitral Tribunal, if not otherwise agreed upon between the
parties. Thus, the negative effect of competence-competence would
require that the matter falling within the exclusive domain of the
Arbitral Tribunal, should not be looked into by the Referral Court,
even for a prima facie determination, before the Arbitral Tribunal
first has had the opportunity of looking into it.

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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.
121. Tests like the "eye of the needle" and "ex facie meritless",
although try to minimise the extent of judicial interference, yet they
require the Referral Court to examine contested facts and
appreciate prima facie evidence (however limited the scope of
enquiry may be) and thus are not in conformity with the
principles of modern arbitration which place arbitral autonomy and
judicial non-interference on the highest pedestal.
122. Appointment of an Arbitral Tribunal at the stage of Section 11
petition also does not mean that the Referral Courts forego any
scope of judicial review of the adjudication done by the Arbitral
Tribunal. The 1996 Act clearly vests the national courts with the
power of subsequent review by which the award passed by an
arbitrator may be subjected to challenge by any of the parties to the
arbitration.
*****
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.
127. Section 11 also envisages a time-bound and expeditious
disposal of the application for appointment of arbitrator. One of the
reasons for this is also the fact that unlike Section 8, once an
application under Section 11 is filed, arbitration cannot commence
until the Arbitral Tribunal is constituted by the Referral Court. This
Court, on various occasions, has given directions to the High
Courts for expeditious disposal of pending Section 11 applications.
It has also directed the litigating parties to refrain from filing bulky

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pleadings in matters pertaining to Section 11. Seen thus, if the
Referral Courts go into the details of issues pertaining to "accord
and satisfaction" and the like, then it would become rather difficult
to achieve the objective of expediency and simplification of
pleadings.
128. We are also of the view that ex facie frivolity and dishonesty
in litigation is an aspect which the Arbitral Tribunal is equally, if
not more, capable to decide upon the appreciation of the evidence
adduced by the parties. We say so because the Arbitral Tribunal
has the benefit of going through all the relevant evidence and
pleadings in much more detail than the Referral Court. If the
Referral Court is able to see the frivolity in the litigation on the
basis of bare minimum pleadings, then it would be incorrect to
doubt that the Arbitral Tribunal would not be able to arrive at the
same inference, most likely in the first few hearings itself, with the
benefit of extensive pleadings and evidentiary material."
(emphasis supplied)

8. The decision in Krish Spinning (supra) thus unequivocally
reiterates that the Referral Court, while exercising jurisdiction under
Section 11 of the Act, is required to confine itself to a prima facie
examination of the existence of a valid Arbitration Agreement and
nothing beyond. The Court's role is facilitative and
procedural, namely, to give effect to the parties' agreed mechanism of
dispute resolution when it has failed, without embarking upon an
adjudication of contentious factual or legal issues, which are reserved
for the Arbitral Tribunal.
9. In view thereof, this Court is of the view that the matter may be
referred to arbitration for the purpose of the resolution of disputes
between the parties by an Arbitral tribunal comprising three
Arbitrators, as per the Arbitration clause noted hereinabove.
10. Learned counsel for the Petitioner, upon instructions, submits
that the Petitioner has no objection to waiving the specific procedural
requirement stipulated in the Arbitration Clause of the Contract,
insofar as it pertains to the appointment of an Arbitrator on his behalf.
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It is, therefore, prayed that this Court may be pleased to appoint an
Arbitrator on behalf of the Petitioner.
11. Since, despite due service, the Respondent has failed to enter
appearance in the present proceedings, in such circumstances, this
Court deems it appropriate to proceed with the constitution of the
Arbitral Tribunal and, in consonance with the aforesaid Arbitration
Clause, to appoint an Arbitrator on behalf of the Respondent as well,
so as to ensure expeditious adjudication of the disputes between the
parties.
12. At this stage, it is noted that the valuation of the subject matter
of the disputes is stated to be approximately Rs. 50,00,000/-.
13. Accordingly, this Court hereby appoints Mr. Sandeep Pandey,
Advocate (Mobile No. 9555160046 & e-mail :
[email protected]), and Mr. Ankit Jain, Advocate
(Mobile No. 9971605508 & e-mail : [email protected]), as
Arbitrators on behalf of the Petitioner as well as the Respondents in
the present matter.
14. Further, the learned Arbitrators, so appointed hereinabove, are
requested to nominate, within two (02) weeks, the presiding
Arbitrator/Umpire to constitute the Arbitral Tribunal as per the
Arbitration Clause.
15. The Arbitral Tribunal, so constituted, is requested to enter upon
reference at the earliest and adjudicate upon the disputes inter se the
parties.
16. The learned Arbitrators may proceed with the arbitration
proceedings, subject to furnishing the requisite disclosures as required
under Section 12(2) of the Act.

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17. The learned Arbitral Tribunal shall be entitled to a fee in
accordance with the Fourth Schedule of the Act or as may otherwise
be agreed to between the parties and the learned Arbitrators.
18. The parties shall share the learned Arbitral Tribunal's fee and
arbitral costs equally.
19. All rights and contentions of the parties in relation to the
claims/counter claims are kept open, to be decided by the learned
Arbitral Tribunal on their merits, in accordance with law.
20. Needless to state, nothing in this order shall be construed as an
expression of opinion of this Court on the merits of the controversy.
21. Let the copy of the said order be sent to the learned Arbitrators
through all permissible modes, including electronic mode as well.
22. Accordingly, the present Petition, along with pending
Application(s), if any, stands disposed of in the above-stated terms.

HARISH VAIDYANATHAN SHANKAR, J.

APRIL 09, 2026/tk/DJ

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