OD-11 ORDER SHEET AP/164/2024 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE PRAVIN CHACHAN Vs KALAMUNJ HOUSING PRIVATE LIMITED & ORS.

BEFORE:

The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA Date: 16TH May,2025.

Appearance:

Mr. KrishnnenduGooptu, Adv.

Mr. Kanakendu Chatterjee, Adv.

Ms. Moumita Sarkar, Adv.

Mr. Ranajit Ray, Adv.

...For the petitioner Mr. Tapas Kumar Dey, Adv.

...For the respondent The Court:Two interesting questions have been raised in the present application under Section 11 of the Arbitration and Conciliation Act, 1996 (for short “the 1996 Act”) – whether a prior notice under Section 21 of the Act was a mandatory pre-requisite for moving the application under Section 11, and what would be the implication of the requirement in the concerned arbitration clause for the ‘Court’ under the said Act to appoint an arbitrator.

The arbitration clause contained in the development agreement, which is relied on by the petitioner, provides that all disputes and differences between the parties thereto regarding the construction or interpretation of any of the terms and conditions therein contained or touching those presents or determination of any liability, shall be referred to the arbitration by the arbitrator, appointed by the “COURT” under the provisions of the Arbitration and Conciliation Act, 1996 and/or Arbitration and Conciliation (Amendment) Act, 2015.

Learned Senior Counsel appearing for the petitioner argues that since there is no provision in the 1996 Act for the ‘Court’, as defined in Section 2 of the 1996 Act, to appoint an arbitrator, the said provision ought to be read as an intention of the parties to refer the dispute to arbitration. It is contended that in such a situation, there is no prior requirement for a notice under Section 21 of the 1996 Act. Learned Senior Counsel cites a decision in the matter of “Delhi Airport Metro Express Private Limited Vs Delhi Metro Rail Corporation”reported at (2022) 9 SCC286 in support of the proposition that wherever the phrase “unless otherwise agreed by the parties” is used in various Sections of the 1996 Act, including Section 21, it indicates that it is open to the parties to agree otherwise than what the statutory provision in question provides for.

Learned Counsel appearing for the respondent opposes the application and contends that a notice under Section 21 of the 1996 Act is a mandatory prerequisite for a reference being sought under Section 11 of the 1996 Act. By placing reliance on the said provision, it is argued that the arbitral proceedings in respect of a particular dispute commences on the date on which a request for that dispute to be referred to arbitration is received by the respondent.Hence, it is implicit in the provision that a notice under the said Section is mandatory.

Learned Counsel cites a co-ordinate Bench judgment of the Bombay High Court in the matter of“M/s. D.P. Construction Vs. M/s. VishvarajEnvironment Private Limited” in an unreported judgment where the learned Single Judge, inter alia, observed that unless there is a request for referring the dispute to arbitration in the context of Section 21, it cannot be said that arbitration has been invoked by a party. By relying on a judgment of the Hon’ble Supreme Court at 2021 5 SCC 705, it was observed that in the context of the question of limitation, there has to be invocation of arbitration under Section 21 of the said Act. The mere fact that the parties have named the arbitrator would not imply that the parties have agreed to waive the requirement of notice contemplated under Section 21. The learned Single Judge went on to observe that the party to the arbitration agreement against whom a claim is made should know what the claims are.

Learned Counsel further argues that in the present case, no such prior notice was given and as such, the scope of disputes on which arbitration is sought cannot be ascertained.

Upon hearing Learned Counsel for the parties, it is seen from the