India: Arbitration Notice Mandatory Before Approaching Court For Appointment Of Arbitrator: West Bengal Power Development Corporation Ltd V Sical Mining Ltd¹

The Calcutta High Court has held that an arbitration clause must be invoked before approaching the Court for the appointment of an arbitrator.

Brief Facts

A dispute arose between the parties in relation to a coal mining agreement, and an arbitrator was appointed as per the arbitration clause in the agreement. The appointment was challenged by the plaintiff under §14 of the Arbitration & Conciliation Act on the basis that the appointing authority under the agreement was ineligible to appoint the arbitrator. This application was allowed.

The plaintiff then filed a §11 Application before the Calcutta High Court seeking the appointment of an arbitrator. This Application was opposed on the basis that no notice was issued by the plaintiff requesting the appointment of an arbitrator prior to filing the Application.

Judgment

The Calcutta High Court dismissed the §11 Application as being premature since the requirement of §21 of the Act had not been satisfied.

The Court relied on the Delhi High Court's decision in Alupro Building Systems Pvt Ltd v Ozone Overseas Pvt Ltd² and held that in the absence of a notice under §21, a party seeking a reference to arbitration will be unable to demonstrate that the other party failed to adhere to the procedure and/or accede to the request for appointment.

Conclusion

An arbitration notice must be issued prior to approaching Court for the appointment of an arbitrator.

Footnotes

1 Judgment dated 30 September 2022 passed by the Calcutta High Court in A.P. No. 555 of 2022

2 2017 SCC OnLine Del 7228

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