[Cites 13, Cited by 0]
Delhi High Court
Anil Kumar Wadhwa vs M/S M2M Buildtech Pvt Ltd & Ors on 9 March, 2026
$~1 & 2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 09.03.2026
+ ARB.P. 149/2025
ANIL KUMAR WADHWA .....Petitioner
Through: Mr. Kushagra Bansal, Advocate
versus
M/S M2M BUILDTECH PVT LTD & ORS. .....Respondents
Through: Mr. Lalit Nayyar, Advocate for
R-2 & 7.
Mr. Vijay Kasana, Advocate for
R-5 & 8.
2
+ O.M.P.(I) (COMM.) 72/2024
ANIL KUMAR WADHWA .....Petitioner
Through: Mr. Kushagra Bansal, Advocate
versus
M2M BUILDTECH PVT LTD & ORS. .....Respondents
Through: Mr. Lalit Nayyar, Advocate for
R-2 & 7.
Mr. Vijay Kasana, Advocate for
R-5 & 8.
CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
% JUDGEMENT (ORAL)
Signature Not Verified
Digitally Signed
ARB.P. 149/2025 & conncected matter Page 1 of 10
By:HARVINDER KAUR
BHATIA
Signing Date:11.03.2026
16:51:38
HARISH VAIDYANATHAN SHANKAR, J.
1. The present petition has been filed under Section 11(6) of the
Arbitration and Conciliation Act, 19961, seeking the appointment of
a Sole Arbitrator in terms of Clause 8 of the Memorandum of
Understanding cum Agreement dated 02.02.20222. The said clause
is set out herein below:
"8.0 Arbitration: All matters, disputes, differences or claims
arising between the parties as to effect interpretation of the
Agreement, or as to their rights, duties or abilities thereunder or as
to any act, matter or thing arising out of, implementation or
interpretation of the agreement. consequent to or in connection
with the present Agreement or as to the validity of the Agreement
shall be resolved by arbitration in accordance with the provisions
of the Arbitration and Conciliation Act, 1996 and all amendments
from time to time.
(a) That Parties will appoint Sole Arbitrator mutually nominated
and named who will be either retired District Judge or High Court
Judge. Any party may invoke Arbitration Clause after giving
proper notice of 30 days to the other party.
(b) The place and seat of the Arbitration shall be at Delhi, India.
(c) The cost of any arbitration proceeding between the parties shall
be before equally.
(d) The existence of difference between the parties or the initiation
of continuance of any arbitration proceedings referred to above
shall not delay or postpone the performance of the undisputed
obligation(s) and the arbitrator shall take full cognizance and give
due consideration to such performance, if any, in making of the
final award."
2. The place and seat of arbitration as per the said clause is Delhi,
and the Agreement also provides that the Sole Arbitrator will be either
a retired learned District Judge or an Hon'ble High Court Judge.
3. Learned counsel for the Petitioner submits that the Notice under
Act
Agreement
Section 21 of the Act is dated 08.05.2024.
4. Learned counsel for the Respondents, on instructions, submits
that they have no objection if the matter is referred to arbitration.
5. 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
Arbitration Agreements under Arbitration Act, 1996 & Stamp
Act, 1899, In re4, comprehensively delineated the contours of judicial
intervention at the stage of Section 11of 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.
(2024) 12 SCC 1
(2024) 6 SCC 1
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
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
****
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.
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
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)
6. The decision in Krish Spinning (supra) thus unequivocally
reiterates that the Referral Court, while exercising jurisdiction under
Section 11of the Act, is required to confine itself to a prima facie
examination of the existence of an 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.
7. Material on record indicates that the valuation of the present
dispute is stated to be approximately Rs. 2 Crores.
8. In view of the fact that disputes have arisen between the parties,
there is an Arbitration clause in the Agreement and the no objection
by the Respondents, this Court deem its appropriate to appoint an
Arbitrator to adjudicate upon the disputes between the parties.
9. Accordingly, and for the said purpose this Court requests,
Hon'ble Ms. Justice Gita Mittal, (Retd.),
to enter into reference as
the learned Arbitrator to adjudicate the disputes inter se the parties.
10. The learned Arbitrator may proceed with the arbitration
proceedings, subject to furnishing to the parties the requisite
disclosures as required under Section 12(2) of the Act.
11. The learned Arbitrator 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 Arbitrator.
12. The parties shall share the learned Arbitrator's fee and arbitral
costs equally.
13. All rights and contentions of the parties in relation to the
claims/counter claims are kept open, to be decided by the learned
Arbitrator on their merits, in accordance with law.
14. Needless to state, nothing in this order shall be construed as an
expression of opinion of this Court on the merits of the controversy.
All rights and contentions of the parties in this regard are reserved.
15. Let the copy of the said order be sent to the learned Arbitrator
through the electronic mode as well.
16. Accordingly, the present Petition stands disposed of in the
above-stated terms.
O.M.P.(I) (COMM.) 72/2024
17. The present Petition, under Section 9 of the Act, has been filed
seeking the following reliefs:
".....
"a) Pass an ex parte ad interim injunction in favour of
the Petitioner and against the Respondents thereby
restraining the Respondents and especially the
Respondents, their agents, attorneys, nominees, executors,
authorized representatives or anybody acting on his behalf
from in any manner selling / alienating or handing over
physical possession or creating third party interest over land
admeasuring Khewat No. 47, Khatuni No. 47, Mustil No.
68, Kila No. 11 Area 8-0 Sampla Haryana which is now
marked as Plot No. 95 to 100, part of 101, 103-115 as per
zoning plan; and
b) Pass an ex parte ad interim injunction in favour of the
Petitioner and against the Respondents thereby restraining
the Respondents and especially the Respondents, their
agents, attorneys, nominees, executors, authorized
representatives or anybody acting on his behalf from in any
manner to enter into any collaboration or joint development
agreement with third parties for the land admeasuring
Khewat No. 47, Khatuni No. 47, Mus til No. 68, Kila No.
11 Area 8-0 Sampla Haryana which is now marked as Plot
No. 95 to 100, part of 101, 103-115 as per zoning plan; and
c) Pass an ex parte ad interim injunction in favour of the
Petitioner and against the Respondents thereby restraining
the Respondents and especially the Respondents, their
agents, attorneys, nominees, executors, authorized
representatives or anybody acting on his behalf from in any
manner to raise loans or finance by way of mortgage or
charge upon the land admeasuring Khewat No. 47, Khatuni
No. 47, Mustil No. 68, Kila No. 11 Area 8-0 Sampla
Haryana which is now marked as Plot No. 95 to 100, part of
101, 103- 115 as per zoning plan; and
d) Pass an ex parte ad interim injunction in favour of the
Petitioner and against the Respondents thereby restraining
the Respondents and especially the Respondents, their
agents, attorneys, nominees, executors, authorized
representatives or anybody acting on his behalf from in any
manner to carry out any construction/ development
activities at land admeasuring Khewat No. 47, Khatuni No.
7, Mustil No. 68, Kila No. 11 Area 8-0 Sampla Haryana
which is now marked as Plot No. 95 to 100, part of 101,
103-115 as per zoning plan; and
e) Pass an ex parte ad interim injunction in favour of. The
Petitioner and against the Respondents thereby restraining
the Respondents and especially the Respondents, their
agents, attorneys, nominees, executors, authorized
representatives or anybody acting on his behalf from in any
manner to modify/alter/add/substitute reconstitution of
Board of Directors of the Respondent No. 1; and
f) Pass an ex parte ad interim injunction in favour of the
Petitioner and against the Respondents thereby restraining
the Respondents and especially the Respondents, their
agents, attorneys, nominees, executors, authorized
representatives or anybody acting on his behalf from in any
manner to modify/alter/add/substitute share holdings of the
Respondent No. 1 ; and
g) Award cost of this petition in favour of the Petitioner and
against the Respondents; and/ or
h) Pass any other or further order(s) which this Hon'ble
Court may deem fit and proper in the ·facts and
circumstances of the case in favour of the Petitioner and
against the Respondents."
18. Since the disputes between the parties have been referred to
arbitration and a learned Sole Arbitrator has been appointed, the
present Petition under Section 9 of the Act shall be treated as an
Application under Section 17 of the Act, and appropriate directions
may be passed by the learned Arbitrator after entering upon the
reference.
19. The parties are at liberty to raise all objections, including with
respect to the jurisdiction of the learned Arbitrator, before the learned
Arbitral Tribunal. Interim Order dated 27.05.2024 to continue till the
Application under Section 17 is adjudicated upon by the learned
Arbitrator.
20. The learned Arbitrator shall consider the present application in
accordance with the law after entering upon the reference.
21. The present Petition, along with pending Application(s), if any,
stand disposed of in the aforesaid terms.
22. A photocopy of the Order passed today be kept in the connected
matter.
HARISH VAIDYANATHAN SHANKAR, J.
MARCH 09, 2026/v/va/jk
