The jurisdiction of a referral court under Section 11(6) of the Arbitration and Conciliation Act, 1996 is limited to the prima facie examination of the existence of an arbitration agreement, leaving questions of merit, frivolity, and interim measures for the Arbitral Tribunal.

ARB.P. 1981/2025, ARB.P. 2011/2025, ARB.P. 2017/2025

1. This is a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, [“ the Act ”] seeking an order to constitute an Arbitral Tribunal comprising of an Arbitrator to adjudicate the disputes between the parties.

2. The facts are that the Petitioner is registered as a debenture trustee under the SEBI (Debenture Trustee) Regulations, 1993 and was appointed as the debenture trustee by Swastik Homebuild Private Limited ("Principal Borrower") under the Debenture Trustee Agreement dated 11.01.2021.

3. The debenture trustee had advanced loans by subscribing to the debentures of Swastik Homebuild Private Limited. To secure the investment, a Debenture Trust Deed and a Deed of Guarantee were entered into between the Principal Borrower and its Personal Guarantors (Respondents).

4. Since the Respondents failed to honour their commitments to comply with their obligations in repayment schedules, there were some CIRP proceedings initiated by the Petitioner.

5. Subsequently, the Petitioner invoked arbitration in terms of clause 7.8 of the Deed of Personal Guarantee, which reads as under:

“7.8 Arbitration

7.8.1 Any dispute, controversy, claim or disagreement of any kind whatsoever between or among the Parties in connection with or arising out of this Deed or the breach, termination or invalidity thereof (hereinafter referred to as a "Dispute") shall be referred to and finally resolved by arbitration irrespective of the amount in Dispute or whether such Dispute would otherwise be considered justifiable or ripe for resolution by any court.

7.8.2 Seat and Venue of Arbitration: The venue of the arbitration shall be Delhi. The seat of the arbitration shall be Delhi and the arbitration proceedings shall be carried out in accordance with the (Indian) Arbitration and Conciliation Act, 1996 or any statutory modification or alteration thereof for the time being in force ("Act"), which shall be deemed to have been incorporated to this Clause.

7.8.3 Number of Arbitration: The number of arbitrators shall be 3 (three) and shall be appointed by in accordance with the Act upon one party serving a notice with respect to the Dispute.

7.8.4 Language of Arbitration: The proceedings of the arbitration shall be conducted in English language.

7.8.5 Time: The arbitral tribunal shall render its final award within 6 (six months from the date of appointment of the complete arbitral tribunal, unless the Parties agree that such limit be extended.

7.8.6 Award and Apportionment of Costs: The award rendered shall be in writing and shall set out the reasons for the arbitral tribunal's decision. The costs and expenses of the arbitration, including, without limitation, the fees of the arbitration and the arbitration tribunal, shall be borne equally by each Party to the dispute or claim and each Party shall pay its own fees, disbursements and other charges of its counsel, except as may be determined by the Related Agreement, to be decided by the First Tribunal in a single arbitral proceeding together with the Existing Arbitration. In deciding whether to consolidate arbitrations, the First Tribunal shall have regard to, inter alia, whether:

(i) there are issues of fact or law common to the arbitrations so that a consolidated proceeding would be more efficient than separate proceedings;

ii) the rights to relief claimed are in respect of or arise out of the same transaction or series of transactions; and

(iii) either Party would be materially prejudiced as a result of consolidation, through undue