Bombay HC: Appointment of Arbitrator Is Barred Where Claimant Abandoned Arbitration, Court Rules

A Single Judge bench of Justice Sandeep V. Marne of the Bombay High Court heard an application under Section 11(6) of the Arbitration and Conciliation Act, 1996, in CARAPL No. 430 of 2025 concerning whether a court could appoint a fresh arbitrator after it had refused to extend the mandate of an earlier arbitrator under Section 29A. The petitioners sought appointment of an arbitrator to adjudicate disputes arising from a Deed of Assignment of Development Rights; respondents opposed on the ground that earlier arbitral proceedings had been effectively terminated by the Court’s refusal to extend time.

The Court dismissed the Section 11 petition and held that entitlement to a fresh reference depended on who was at fault for delay. The judge emphasised that refusal to extend the arbitrator’s mandate under Section 29A did not automatically terminate the arbitral proceedings in every case; instead, the decisive question was whether the applicant or some other party (including the tribunal) was responsible for the delay. 

The Court, in its reasoning, observed: "Thus, the key is to determine whether the party is at fault or is faultless. If the party is found to be at fault, on account of whose conduct, the Court has refused to extend mandate of the previous arbitrator, the application for making fresh reference or appointment of arbitrator must necessarily be rejected. On the other hand, if the party applying under Section 11(6) is faultless, its application for appointment of an arbitrator would not only be maintainable but it would be the duty of the Court to appoint the arbitrator for ensuring adjudication of disputes between the parties on merits." The judge also recorded the Section 29A Court’s earlier finding that "the Petitioners have abandoned the arbitration proceedings" and cited a prior single‑judge observation that "I do not see how an arbitration clause can be constantly revived and brought back to life again and again like this."

Background
The disputes arose out of a Deed of Assignment of Development Rights dated 6 December 2010 which contained an arbitration clause (clause 17). The parties first invoked court processes by a Section 9 petition; the High Court converted that reference and, by order dated 14 November 2019, appointed a sole arbitrator. The appointed arbitrator expressed inability to act and was substituted on 13 January 2020; the tribunal passed an order under Section 17 on 31 August 2020. Thereafter, the arbitration did not progress for a considerable period.

The petitioners filed a Section 29A application on 26 April 2024 seeking extension of the tribunal’s mandate. By order dated 18 October 2024 the High Court refused extension, recording that settlement talks had failed by 20 April 2022, that the petitioners had "abandoned the arbitration proceedings," and that their conduct disentitled them to relief. Special Leave Petition filed before the Supreme Court was dismissed on 14 February 2025.

Facing that outcome, the petitioners sent notices in July 2025 nominating an arbitrator and sought court appointment under Section 11(6). Respondents opposed, arguing that permitting a belated fresh reference would subvert the Section 29A finding and reward negligence. The High Court reviewed relevant authorities including Tata Motors, Khorshed E. Nagarwalla, Fedbank Financial Services, and the Supreme Court’s decision in Rohan Builders, and distinguished fact‑specific precedents where appropriate. The Court held that where the refusal to extend an arbitrator’s mandate was attributable to the claimant’s fault, the referral jurisdiction under Section 11(6) could not be exercised to revive arbitration; conversely, a faultless party retained remedy to seek appointment. Applying those principles to the admitted facts and the finding of abandonment, the Court concluded that appointment of a fresh arbitrator would amount to re‑opening or reviewing the Section 29A order and therefore dismissed the Commercial Arbitration Application. The Court directed no order as to costs.

Case Details:
Case No.: CARAPL NO. 430 of 2025
NeutralCitation: 2026:BHC-OS:7780
Case Title: Nalin Vallabhbhai Patel and Another v. Atharva Realtors and Others
Appearances:
For the Petitioner(s): Mr. Rohaan Cama with Mr. Manish Gala, Mr. Aayush Yadav, Mr. Minil Shah and Ms. Alpa Gala i/b Mr. Nilesh N. Gala
For the Respondent(s): Mr. V.M. Chavda with Ms. M.V. Chavan and Ms. Reva Kulkarni (for Respondent Nos. 1 & 2); Mr. Kapil Shah with Mr. Vatsal Parmar i/b M.K. Juris Associates (for Respondent Nos. 3 & 4)

Source: 2026 CaseBase(BOM) 134