Court Can't Decide Disputed Questions Of Facts U/S 11(6) Arbitration Act, Question Of Arbitrability Can Be Examined By Arbitral Tribunal: Gujarat HC

High Court cannot decide disputed questions of facts in a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 for the appointment of arbitrator, the Gujarat High Court has held.

The Bench comprising Chief Justice Aravind Kumar observed, "All these issues including arbitrability can be examined by the Arbitral Tribunal itself."

The observation was made while deciding the application preferred by the Petitioner for appointment of sole arbitrator in connection with a dispute arising from agreement relating to operation of a restaurant owned by the respondent.

The Petitioner submitted that Respondent unilaterally cancelled the aforesaid agreement following which, it issued notice for solving the dispute through arbitration. He submitted that in the 2011 agreement it was agreed that any dispute between the parties would be resolved through arbitration. Thus, the Respondent was invited to appoint a sole arbitrator out of the three names proposed but the Respondent failed to do so. Consequently, the instant petition was filed by the Petitioner.

The Respondent averred in the reply affidavit that the agreement of 2011 was valid only for a period of five years and therefore, there existed no right in the Petitioner to seek enforcement of the arbitration clause under the said agreement.

The High Court observed that though the respondent attempted to stave off the claim of petitioner on the ground that said agreement stood extinguished and there exists no privity of contract, however, the Petitioner asserted that the agreement between the parties was extended from 2016 to 2021 for another five years.

Case No.: C/IAAP/23/2019

Citation: 2022 LiveLaw (Guj) 230

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