TABLESPACE TECHNOLOGIES LIMITED vs GEMSCAP GLOBAL ANALYST PRIVATE LIMITED
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:60099
CMP No. 83 of 2026
CNR: KAHC010120112026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 29 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
CIVIL MISC. PETITION NO. 83 OF 2026
BETWEEN:
TABLESPACE TECHNOLOGIES LIMITED
A COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 2013
AND BEARING CIN U74999KA2017PLC101040
HAVING REGISTERED OFFICE AT
46, LEVEL 5, PRESTIGE TRADE TOWER
PALACE ROAD, HIGH GROUND
SAMPANGI NAGAR, BENGALURU
KARNATAKA-560 001
REP. BY ITS AUTHORISED SIGNATORY
MR. ABHINAV SURANA.
…PETITIONER
(BY SMT. RASHMI SUBRAMANYA, ADVOCATE FOR
SMT. SMITHA R B., ADVOCATE)
AND:
GEMSCAP GLOBAL ANALYST PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 2013 AND
BEARING CIN U74999PN2016PTC166299
HAVING REGISTERED OFFICE AT
63/1/6, BLOCK NO. 1, FLOOR NO. 14
ITPP-INTERNATIONAL TECH PARK
WING 1 AND 2, AIGP, GRANT ROAD
KHARADI, VIMAN NAGAR, PUNE
MAHARASHTRA - 411 014
AND AT
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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CMP No. 83 of 2026
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805-TOWER 1, WORLD TRADE CENTRE
KHARADI, PUNE 411 014
AND AT CLUSTER D, WING 2
RD
3 FLOOR, EON FREE ZONE
KHARADI, PUNE 411 014
REP. BY ITS MANAGING DIRECTOR
MR. NIRMAL SHRIKANT SUREKA
…RESPONDENT
(BY SRI. YESHU BABA R MISHRA., ADVOCATE)
THIS CMP IS FILED UNDER SECTION 11(5) OF
ARBITRATION AND CONCILIATION ACT 1996 PRAYING TO
APPOINT A SOLE ARBITRATOR ON BEHALF OF THE PARTIES IN
TERMS OF CLAUSE 5 OF THE AGREEMENT DATED: 11.11.2022
(ANNEXURE A), SO AS TO CONSTITUTE THE ARBITRAL
TRIBUNAL, TO ADJUDICATE UPON THE DISPUTES /
DIFFERENCES BETWEEN THE PARTIES UNDER THE SAID
AGREEMENT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
ORAL ORDER
1. This petition is filed under Section 11(5) of the
Arbitration and Conciliation Act, 1996 (for short, “the
Act”), seeking appointment of a sole Arbitrator for
adjudication of the disputes that have arisen between the
parties under the Service Agreement dated 11.11.2022,
particularly in terms of Clause 5 thereof, produced at
Annexure-A.
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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HC-KAR
NC: 2026:KHC:60099
CMP No. 83 of 2026
CNR: KAHC010120112026
2. The brief facts of the case are that the petitioner is a
company incorporated under the Companies Act, 2013 and
is engaged in the business of designing, building and
operating managed office spaces for enterprises. The
respondent is also a company incorporated under the
Companies Act, 2013 and is engaged in the business of US
equity market research and analysis. The petitioner and
the respondent have entered into a Service Agreement on
11.11.2022 as per Annexure-A, under which the petitioner
agreed to provide certain premises in a fully furnished
condition to the respondent and further render services as
per the terms agreed upon, subject to payment of the
monthly service fee of Rs.18,50,000/ with an annual
escalation of 5 percent.
3. Since disputes arose between the parties in respect
of payment under the said Service Agreement, the
petitioner, invoking the arbitration clause contained
therein, issued a notice dated 08.01.2026, vide Annexure-
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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CMP No. 83 of 2026
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C, to the respondent under Section 21 of the Act. The
same was served to the respondent.
4. The respondent sent a reply dated 15.01.2026 vide
Annexure-F to the said notice. Being dissatisfied with the
reply, the present petition is filed seeking appointment of
a sole Arbitrator.
5. Learned counsel appearing for the respondent has
submitted that the petition filed by the petitioner is not
maintainable. It is contended that, as per Clause 5 of the
agreement, before invoking the jurisdiction of this Court
for appointment of an arbitrator, the parties are required
to discuss the dispute and attempt to settle the same
amicably. Since the petitioner has not made any genuine
attempt for conciliation before invoking Section 11 of the
Act, the petition is premature. He further contended that
this Court, in the case of Sobha Limited vs. Nava
Vishwa Shashi Vijaya Krishna Properties Pvt. Ltd.
and Ors. reported in 2022 SCC OnLine Kar 1708 , has
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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CMP No. 83 of 2026
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held that where the arbitration clause provides for an
attempt to settle the dispute amicably before invoking
arbitration, the parties are required to comply with the
said condition. It is further contended that the email
communications produced by the petitioner to show that
the parties had attempted to settle the matter amicably do
not relate to the present dispute but relate to the matter
pending under the IBC. Hence, it is contended that the
petitioner has not complied with the pre-condition
contained in the arbitration clause and, therefore, the
petition is liable to be dismissed.
6. Per contra, learned counsel appearing for the
petitioner has contended that, in terms of the arbitration
clause, the parties had made an attempt to settle the
dispute amicably and, in this regard, the petitioner has
produced the email correspondence exchanged between
the parties. Since the parties failed to arrive at an
amicable settlement, the petitioner was constrained to
approach this Court by filing the present petition seeking
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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appointment of a sole arbitrator. Learned counsel for the
petitioner has further relied upon the judgment of this
Court in the case of Mphasis Limited vs. Strategic
Outsourcing Services Private Limited reported in
2019 SCC OnLine Kar 4026 and contended that the
requirement of making an attempt to settle the dispute
amicably before invoking the arbitration clause is only
directory and not mandatory. It is further contended that,
in view of Section 11(6-A) of the Act, the Court, while
considering a petition for appointment of an arbitrator, is
required to examine the existence of an arbitration
agreement. He further contended that the judgment relied
upon by the respondent in the case of Sobha Limited
(supra) was rendered without considering the earlier
judgment of this Court in Mphasis Limited (supra). It is
also contended that the judgment of the Hon'ble Supreme
Court in SBP & Co. vs. Patel Engineering Ltd. and Anr.
reported in (2005) 8 SCC 618 was rendered prior to the
amendment to Section 11 of the Act. Subsequent to the
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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said amendment, the Hon'ble Supreme Court, in the case
of Duro Felguera S.A. v. Gangavaram Port Limited
reported in (2017) 9 SCC 729 , has explained the limited
scope of examination by the Court under Section 11(6-A)
of the Act and distinguished the earlier position of law laid
down in SBP & Co. (supra). Hence, she sought for
allowing the petition.
7. Heard the learned counsel for the parties. Perused
the petition papers.
8. It is not in dispute that the parties have entered into
a Service Agreement dated 11.11.2022. Under the said
agreement, there is an arbitration Clause 5. The said
arbitration clause reads as under:
“5. GOVERNING LAW, JURISDICTION AND
ALTERNATE DISPUTE RESOLUTION
i Any dispute or difference between the PARTIES
with regard to this SERVICE AGREEMENT and
all connected and related matters whatsoever
shall be discussed and settled amicably.
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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ii In the event of failure to resolve the disputes
or differences amicably, all such disputes or
differences whatsoever shall be referred to
arbitration to be conducted in accordance with
the provisions of Indian Arbitration and
Conciliation Act, 1996 or any statutory
modification or enactment thereof. The seat
and venue of arbitration shall be Bangalore.
The arbitration proceedings shall be conducted
by 1 (one) arbitrator, jointly appointed by the
Parties.
iii This SERVICE AGREEMENT and the right and
obligations of the PARTIES arising out of this
SERVICE AGREEMENT shall be construed and
enforced in accordance with the laws of India
and subject to Clause 5 i and 5 ii above courts
in (.) shall have the jurisdiction with respect to
any disputes arising under this Agreement.”
9. A perusal of the first clause of the arbitration clause
would indicate that, in respect of any dispute arising
between the parties, they are required to first discuss and
endeavour to settle the dispute amicably.
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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HC-KAR
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CMP No. 83 of 2026
CNR: KAHC010120112026
10. In the present case, the petitioner has filed a memo
enclosing the email communications exchanged between
the parties. From the said correspondence, it is evident
that there were discussions between the parties in respect
of payment of service charges on different dates. It also
appears that the respondent had made certain offers for
settlement, which were not accepted by the petitioner.
Therefore, the correspondence placed on record clearly
demonstrates that the parties had, in fact, made an
attempt to resolve the dispute amicably, but the same did
not succeed.
11. However, this Court, in similar circumstances, in the
judgment reported in Mphasis Limited (supra), has held
that the pre-condition contained in the arbitration clause
requiring the parties to make an attempt to settle the
dispute amicably is directory and not a mandatory
requirement. The relevant paragraph No.10 of the said
judgment reads as under:
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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“10. The provisions of the Act were amended by Act
No. 3 of 2016 which came into force with effect from
23.10.2015. Sub-section (6A) was added to section
11 of the Act which provides that the Supreme Court
or as the case may be, the High Court, while
considering an application under sub-section (4) or
sub-section (5) or sub-section (6) shall,
notwithstanding any Judgment, decree or order of
any Court, confine to the examination of existence of
an arbitration agreement. Admittedly, in the instant
case, the agreement dated 15.07.2016 executed
between the parties contains an arbitration clause,
viz., clause No. 5. The respondent can raise all his
objections before the arbitrator under Section 16 of
the Act which need not be examined in this summary
proceedings. So far as submission of the respondent
that this petition is premature is concerned, suffice it
to say that in the notice dated 25.01.2018, the
petitioner has clearly stated that the petitioner has
been following up with the respondent to perform its
obligation under the agreement. However, despite
lapse of 60 days, no action was taken and therefore,
the petitioner is forced to invoke the arbitration
clause. In the reply dated 12.02.2018, the aforesaid
averment of fact has not been specifically denied and
it has been merely stated that notice has been issued
without exhausting alternative remedy. Besides that,
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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Delhi High court in the case of RAVINDRAKUMAR
VERMA supra, has held that even if the requirement
as stated for invoking the arbitration is not complied
with, the same cannot prevent reference to the
arbitration because the procedure/precondition has
to be taken as directory and not a mandatory
requirement. I am in respectful agreement with the
aforesaid view. Therefore, the objection raised by the
respondent that this proceeding is premature cannot
be sustained.”
12. The judgment relied upon by the respondent is the
one reported in the case of Sobha Limited (supra). In the
said judgment, the Co-ordinate Bench of this Court,
following the judgment of the Hon'ble Supreme Court in
SBP & Co. (supra), has held that the pre-condition
contained in the arbitration clause requiring the parties to
settle the dispute amicably is mandatory.
13. However, the judgment of the Hon'ble Supreme
Court in SBP & Co. (supra) was rendered prior to the
amendment to Section 11 of the Act. Subsequent to the
said amendment, the Hon'ble Supreme Court, in the case
of Duro Felguera S.A. (supra), has considered the effect
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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of the amendment and distinguished the judgment in SBP
& Co. (supra).
14. Therefore, considering the aforesaid judgments and
having regard to the existence of the arbitration clause
contained in the Service Agreement, which provides for
resolution of disputes arising between the parties, and the
fact that the petitioner has duly invoked the said
arbitration clause by issuing notice under Section 21 of the
Act, this Court is of the opinion that a Sole Arbitrator is
required to be appointed for adjudication of the disputes
between the parties.
15. Accordingly, the following:
ORDER
a) Civil Miscellaneous Petition is allowed .
b) Hon’ble Mr.Justice P.Krishna Bhat, Former
Judge, High Court of Karnataka is appointed as
the Sole Arbitrator in the present case to
arbitrate the disputes between the parties at
the Arbitration and Conciliation Centre
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
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(Domestic & International), Bengaluru, as per
the Rules governing the said Arbitration Centre.
c) All the claims and contentions of the parties are
left open.
d) Registry is directed to communicate this order
via e-mail to the Arbitration and Conciliation
Centre (Domestic & International), Khanija
Bhavan, Bengaluru, and also to Hon’ble
Mr.Justice P.Krishna Bhat, Former Judge, High
Court of Karnataka .
e) Registry is directed to return all the original
documents produced by any of the parties after
obtaining Photostat copies of the same.
f) Parties are directed to appear before the
Director, Arbitration and Conciliation Centre,
Bengaluru, on 30.11.2026 at 11:30 a.m.
Digitally Signed by NARENDRA PRASAD
HAREKOPPA THIMMANNA GOWDA
(H.T. NARENDRA PRASAD)
JUDGE
HA
LIST NO.: 1 SL NO.: 17