Madhya Pradesh High Court
Nephrocare Health Services Pvt. Ltd. vs Vishesh Diagnostics Pvt. Ltd. on 7 August, 2025
1
NEUTRAL CITATION NO. 2025:MPHC-JBP:36993
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 7th OF AUGUST, 2025
ARBITRATION CASE No. 101 of 2021
NEPHROCARE HEALTH SERVICES PVT. LTD.
Versus
VISHESH DIAGNOSTICS PVT. LTD.
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Appearance :
Shri Qasim Ali - Advocate for the applicant.
Shri Manoj Munshi Senior Advocate through video conferencing and
Shri Akshay Jha - Advocate for respondent.
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ORDER
The present application has been filed by the applicant under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996') for appointment of an Arbitrator to resolve the dispute which arose between the parties pursuant to an agreement dated 20.04.2016 (Anneuxre A/1).
2. It is the case of the applicant that a dispute arose between the parties on 09.04.2021 for violating the terms of the agreement for which notice for invoking arbitration was sent on 11.05.2021 Annexure P/3. The same has been replied by the non-applicant vide reply dated 15.06.2021 Annexure A/4. As certain facts in the reply were not correct, therefore, the applicant had again sent rejoinder notice on 01.07.2021 Annexure A/5. It is submitted that despite the applicant had followed the procedure for invocation of Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 14-08-2025 18:06:22 2 NEUTRAL CITATION NO. 2025:MPHC-JBP:36993 arbitration and shown intention to resolve the dispute as per the service agreement wherein there exist the arbitration clause but as the non-applicant did not show any inclination in regard to appointment of an arbitrator to resolve the dispute between the parties, application under Section 11(6) of the Act of 1996 has been filed on 22.12.2021 i.e. which is within the limitation from the date of issuance of notice Annexure A/3 for invocation of Arbitration.
3. Per contra, refuting the submissions of counsel for the applicant, learned senior counsel has summarised his arguments to the extent of legal issue of territorial jurisdiction of this Court to decide such an application. It has been vehemently submitted that this Court is not having any jurisdiction to decide an application under Section 11(6) of the Act of 1996.
4. Learned senior counsel has invited attention of this Court towards cause-title of the application, first page of the agreement, page 16 and para 12, 13 and 14 of the agreement to submit that all the entries refer to the place Indore and as such the Indore Bench of this Court is having the jurisdiction. It is further submitted that the word "Court" has been defined in Section 2(1)(e) of the Act of 1996 which states that in case of an arbitration the principal civil Court of original jurisdiction in a district include the High Court in exercise of its original civil jurisdiction, having jurisdiction to decide the question forming the subject matter of the arbitration if the same had been the subject matter of the suit. He further submitted that section 9 and 34 also refer to the word "the Court" and according to those sections the Court means "the principal civil court of having jurisdiction". It is further submitted that Section 11(6) provides for appointment of an arbitrator. According to this Section appointment is made by the High Court on an application of the party, in case of arbitrations other than international commercial arbitration, as the case may be or to Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 14-08-2025 18:06:22 3 NEUTRAL CITATION NO. 2025:MPHC-JBP:36993 take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. However, he candidly admited that there exist an arbitration clause in the agreement in question and disputes are to be resolved as per the scheme of the Act of 1996 and the mechanism provided for arbitration in the agreement.
5. The intention of the parties to resolve the dispute as per the arbitration agreement is not disputed. The arbitrability of the dispute is also not disputed and the dispute is to be resolved by the mechanism provided for arbitration in the agreement is also not disputed.
6. No other grounds have been advanced by the learned counsel for the parties.
7. The only question which emerges during course of argument is "Whether this Court is having the territorial jurisdiction to decide the present application under Section 11(6) of the Act of 1996, or not ?"
8. It has been contended by the learned counsel for the applicant that the agreement Annexure A/1 in Clause 14 provides for that "Governing Law and Jurisdiction". As per the clause, the agreement shall be governed and interpreted in accordance with Indian laws and any legal action or proceeding shall be subject to jurisdiction of courts of Bhopal. It is further submitted that as per Section 42 of the Act of 1996, if the party has to move an application under Section 9 or Section 34 of the Act of 1996 for that purpose it will be filed in the Court which is defined under Section 2(1)(e) of the Act of 1996 i.e. before the civil court of Bhopal.
9. The learned Senior counsel for the non-applicant does not dispute this position.
10. It has further been contended by learned counsel for the applicant that as per Section 42 of the Act of 1996, non-obstante clause has been used in Section 42 which state that notwithstanding anything contained elsewhere Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 14-08-2025 18:06:22 4 NEUTRAL CITATION NO. 2025:MPHC-JBP:36993 in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court. It is further submitted that as per his understanding, the Bhopal Court as per clause 14 of the agreement is having jurisdiction in regard to the application made in this part and it shall be governed by the jurisdiction of civil court, which includes Section 9 as well as Section 34 of the Act of 1996. Therefore, any subsequent applications or proceedings initiated subsequent to those applications shall be within the jurisdiction of Bhopal and on that basis it has been submitted that the Bhopal is within the jurisdiction of the principal seat of this High Court at Jabalpur, therefore, this Court is having jurisdiction to decide the application under Section 11(6) of the Act of 1996. It is further submitted that Section 11(6) provides for appointment of an arbitrator by the High Court and jurisdiction of the High Court is to be gathered from the conduct and recital of the agreement. When the parties have decided to lay jurisdiction at Bhopal Court, then no other meaning can be attributed to it.
11. Heard learned counsel for the parties and perused the record.
12. Appointment of an arbitrator is provided under Section 11(6) of the Act of 1996, which is extracted hereunder :
11. Appointment of arbitrators. -
(6) Where, under an appointment procedure agreed upon by the parties,--
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 14-08-2025 18:06:22 5 NEUTRAL CITATION NO. 2025:MPHC-JBP:36993
(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment."
13. According to Section 11(6), the High Court is having power to appoint an arbitrator and to take necessary measures unless the agreement on the appointment procedure provides other means for securing the appointment.
14. As referred by learned senior counsel, the definition of "Court" under Section 2(1)(e)(i) of the Act of 1996, the principal Civil Court of original jurisdiction in a district is the court to determine the issue regard to any application/dispute proceedings as provided under the Act of 1996, including Section 9 and 34 of the Act.
15. When Section 2(1)(e)(i) is read conjointly with Section 42, it is crystal clear that civil Court having jurisdiction to decide the issues of the said part of the Act of 1996 shall have the jurisdiction, in this case, as agreed by the parties at civil court Bhopal.
16. In the considered opinion of this Court, when for all other purposes, if the civil court Bhopal is having jurisdiction to decide issues as provided under the part of the Act of 1996, then all subsequent proceedings and applications are to be filed in the court having territorial jurisdiction of Bhopal. The Act of 1996 being a special Act has carved out the superseding effect as per the non-obstante clause that no other law time being in force would be applicable in respect of the jurisdiction. So analogy in respect of jurisdiction at Indore on the basis of entries in the agreement and for that matter, the subject matter of the agreement falls within the territorial Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 14-08-2025 18:06:22 6 NEUTRAL CITATION NO. 2025:MPHC-JBP:36993 jurisdiction of the Bench Indore would not be applicable in the present case in hand.
17. This Court cannot give rise to conflict or ambiguity between the parties in case any proceeding as provided under the part is initiated at Bhopal. For that matter, if the application is decided by the High Court Bench at Indore, then unnecessary conflict and ambiguity would arise between the parties in regard to future course of action, in case, arises between the parties as provided and agreed between the parties under clause 14 of the agreement.
18. As per Section 42 of the Act of 1996, by virtue of non-obstante clause in Section 42 which state that notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court. The Bhopal Court as per clause 14 of the agreement is having jurisdiction in regard to the application made in this part shall be governed by the jurisdiction of civil court, which includes Section 9 as well as Section 34 of the Act of 1996. Therefore, any subsequent applications or proceedings initiated subsequent to those applications shall be within the jurisdiction of Bhopal. Thus, the Bhopal is within the jurisdiction of the principal seat of this High Court at Jabalpur, therefore, this Court is having jurisdiction to decide the application under Section 11(6) of the Act of 1996. Section 11(6) provides for appointment of an arbitrator by the High Court and jurisdiction of the High Court is to be gathered from the conduct and recital of the agreement. When the parties have decided to lay jurisdiction at Bhopal Court, then no other meaning can be attributed to it.
Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 14-08-2025 18:06:22 7NEUTRAL CITATION NO. 2025:MPHC-JBP:36993
19. On the basis of above analysis and when tested on the anvil of provisions of law, this Court is of the considered opinion that the Principal Seat of this High Court at Jabalpur has jurisdiction to decide this application under Section 11(6) of the Act of 1996. Accordingly, considering the totality of the case, the application is allowed.
20. With the consent of learned counsel for the parties and considering the list of empanelled Arbitrators issued by the M.P.Arbitration Centre, Jabalpur, following order is passed :
(i) Justice Shri Shantanu Kemkar, Former Judge, Bombay High Court, 09, Yeshwant Colony, Opposite Yeshwant Club, Indore M.P., Mob.No.76780-80789, E-mail shantanukemkar @ gmail.com is appointed as sole Arbitrator to resolve the dispute between the parties.
(ii) Arbitrator shall issue the notices and fix the date and suitable venue for arbitration. Said arbitration will take place at Indore as per clause 13 of the agreement.
(iii) Parties are directed to deposit necessary charges and fees as per M.P. Arbitration Center (Domestic and International) Rules, 2019.
(iv) Director of Madhya Pradesh Arbitration Centre [Domestic and International, Jabalpur (M.P.D.I.A.C.)] shall communicate the decision of this Court to the Sole Arbitrator.
(v) Other provisions of Section 15(3)(4) of the Arbitration and Conciliation Act, 1996 will apply to Substitute Arbitrator.
21. Arbitration case is disposed of.
(DEEPAK KHOT) JUDGE anand Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 14-08-2025 18:06:22