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Writer's pictureABMK LAW CHAMBERS

S.11: Scope of Judicial Review when maintainability objections are 'plainly arguable'

Updated: Mar 15, 2022


In a case titled Mohammed Masroor Shaikh Vs. Bharat Bhushan Gupta & Ors. Civil Appeal No. 874 of 2022 where an Appeal was preferred before the Supreme Court against a S. 11 Order of the Single Judge, Bombay High Court appointing an arbitrator, after objections under S. 16 were dismissed, the Supreme Court vide its final order and judgment dated 02.02.2022 declined to interfere with the High Court order observing that the issues of maintainability are to be preferred before the arbitral tribunal. Relying on the case of Vidya Drolia & Ors. vs. Durga Trading Corporation, (2021) 2 SCC 1, the Apex Court held that the contentions of non-maintainability are to be raised before the arbitral tribunal if they are ‘plainly arguable’. Since a Section 34 petition was pending adjudication, which has been preferred against the dismissal of objections taken in S. 16 proceedings, the Court held that it was open to the Appellant to raise issues of non-maintainability and the time barred claims in the Section 34 proceedings.


In the facts of the matter, a notice under S. 11 of the Arbitration and Conciliation Act, 1996 was served upon the respondents therein along with a copy of the Section 11 petition. However, it was not communicated as to when the matter would come up before the Court for hearing. When the Section 11 petition was infact taken up by the Single Judge, Bombay High Court, despite such service the respondents therein did not appear. The Single Judge relied upon the affidavit of service filed by the Petitioner therein and appointed an Arbitrator without issuance of Notice to the Appellants.


The Supreme Court took judicial notice of a long standing and consistent practice by the Original Side of the Bombay High Court which is that the advocates serve a notice of proceedings filed in the court even before the matter comes up before the Court. The Court acts upon such service effected by the advocate on proof being produced in the form of an affidavit of service.


The Supreme Court held that Appellant could have always made arrangement to contest the S. 11 petition but he failed to do so. Therefore, the objection that the date was not communicated to the opposite side, for hearing of such Section 11 petition was rejected.


The Apex Court observed that the S. 11 Order did not decide the issues of non-arbitrability and time barred claims and rather had left them open. The Apex Court noted that both the parties have appeared before the arbitrator and having suffered an adverse order under Section 16 of the Arbitration Act, the Appellant had also filed a Section 34 petition. The Court while dismissing the Appeal, observed that the issues of non-maintainability and the time barred claims can be raised in the S. 34 proceedings.

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