Ajazul Haque Khan vs Icici Bank Limited

2026:BHC-OS:12327
936-CARBP(L)-16052-2026 .doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION PETITION (L) NO. 16052 OF 2026
Ajazul Haque Khan …Petitioner
Versus
ICICI Bank Limited …Respondent
Mr. Vijay S. Tiwari, a/w Mr. Aayush Pandey for the Petitioner.
Mr. Mayur Khandeparkar, Senior Counsel a/w Ms. Resham Vasant
Savla i/b Manilal Kher Ambalal and Co. Advocates for Respondent,
ICICI Bank Ltd.
CORAM: SOMASEKHAR SUNDARESAN, J.
DATE: MAY 7, 2026
Oral Judgement:
Context and Factual Background:
1. This is a Petition filed under Section 37 of the Arbitration and
Conciliation Act, 1996 (“ the Act ”) impugning an order dated January 15, 2026
(“ Impugned Order ”) under Section 17 of the Act, attaching various bank
accounts associated with the Petitioner’s income-tax Permanent Account
Number. The Impugned Order was passed ex parte, by an arbitrator
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appointed by an online dispute resolution platform (“ ODR Platform ”)
appointed by the Respondent, ICICI Bank Ltd. (“ ICICI ”).
2. The Petitioner has accused ICICI of mis-selling, incentivising him to
retire his pre-existing loans from other lenders, only to realise that he did not
get a better deal because those lenders charged him additionally for re-
financing the loan, which was not explained to him. He also contends that
monies were actually not fully given to him and the earlier lenders charged
him additionally as well.
3. The Impugned Order is cryptic. It simply states that ICICI lent a
personal loan to the Petitioner and it has not been repaid, and goes on to
direct a disclosure of assets, furnishing of security in three days, and a debit
freeze on all bank accounts. Based on this, Axis Bank would freeze the account
of the Petitioner. Apparently a templated order, the Impugned Order records
how no one has challenged the formation of the Arbitral Tribunal and
therefore, that the right to challenge has been lost. The Impugned Order
speaks about how the ODR Platform is recognised by this High Court and the
Kerala High Court – a facet wholly irrelevant to an interim order apart from
subtly hinting at assumed legitimacy of such an order.
4. Paragraph 8 of the Impugned Order states that ICICI “ referred ” the
dispute to arbitration but does not indicate how and when arbitration was
invoked and how the 30-day wait period for selection of arbitrator ran its
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course. In the twelve paragraphs of the Impugned Order, apart from the date
of the agreement, dates and events are absent in the narration of facts. It does
not even speak about the date of the interim application under Section 17 or
the contents of any such application.
5. The Impugned Order refers to the dispute resolution clause in the
agreement between the parties and indicates that it provides for a 21-day
period for mediation and conciliation to run its course under the ODR
Platform’s procedures, failing which, arbitration would commence. The
Impugned Order contains no articulation of any facts in the context of a prima
facie case, grave and irreparable injury and balance of convenience, except to
simply state that there is a power to protect under Section 17 of the Act.
Withdrawal of Arbitration Proceedings:
6. Today, when the matter is called out, Mr. Mayur Khandeparkar,
Learned Advocate for the ICICI submits that the Impugned Order may be set
aside because the current arbitration proceedings would be withdrawn, which
would work out this Petition. The parties agree to leave it to the Court to
appoint an independent online dispute resolution platform for resolution of
their disputes, considering the relatively small scale and size of the claim by
ICICI against the Petitioner in respect of dues claimed pursuant to a personal
loan.
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7. In these circumstances, the Impugned Order is quashed and set aside by
consent of the parties. All banks including Axis Bank, are directed to
immediately lift any debit freeze on the Petitioner’s bank accounts.
8. By consent of the parties, a new Arbitral Tribunal is appointed in the
following terms, with a direction to the ODR Platform appointed by this order
to conduct the proceedings in accordance with law:
A] Presolv360, an independent online dispute resolution institution
is directed to appoint a sole arbitrator to adjudicate upon the disputes
and differences between the parties arising out of and in connection
with the Agreement referred to above and administer the same;
B] The contact particulars of the Director, Presolv360 are set out
below:-
Email id : [email protected]
Contact No. : +91-9820167337
st
Address : 1 Floor, Esperanca Building,
Shahid Bhagat Singh Road,
Colaba, Mumbai – 400 001.
Website : www.presolv360.com
C] A copy of this Order will be communicated to Presolv360 by the
Advocates for the Applicant within a period of one week from the date
on which this order is uploaded on the website of this Court. The
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Applicant shall provide the contact and communication particulars of
the parties to Presolv360 along with a copy of this Order;
D] It is clarified that Presolv360 being an ODR institution, all
proceedings will be conducted online through electronic mode, unless
otherwise agreed between the appointed Arbitrator and the parties,
with appropriate notification to the administration of Presolv360.
E] The administration of Presolv360 is requested to appoint an
independent arbitrator in compliance with the Act and its own rules
consistent with the Act as soon as possible and in any event within a
period of two weeks from receipt of a copy of this Order;
F] The parties shall provide a valid and functional email address
along with mobile and landline numbers of the respective Advocates
of the parties to the administration of Presolv360 and any other
particulars as reasonably requested by the administration.
Communications to such email addresses shall constitute valid service
of correspondence in connection with the arbitration;
G] All arbitral costs and fees of the arbitration shall be borne by the
parties equally in the first instance, and shall be subject to any final
Award that may be passed by the Tribunal in relation to costs; and
H] The seat of the arbitration shall be deemed to be the same as the
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seat discernible from the Agreement while the arbitration shall
primarily be conducted online.
Illegality of Arbitral Proceedings:
9. However, it is imperative to point out that evidently and unmistakably,
this is yet another case of arbitration proceedings being withdrawn by a lender
(this time, a leading institution as large as ICICI), after the counterparty has
challenged the unilaterally appointed arbitrator’s orders attaching all bank
accounts. While such withdrawal is routinely resorted to as a way out, the
overall strategy is to maximise recoveries, with most counterparties not having
the wherewithal to challenge such orders, and proceedings that are withdrawn
being a small operating cost to incur.
10. I have had occasion to make detailed observations and issue directions
1
about such cases in my judgement dated April 30, 2026, in the case of IIFL ,
setting out the law as declared by the Supreme Court in the case of unilateral
appointments. This is an issue of the rule of law and what the basic
foundation of arbitration proceedings entail as a foundational requirement of
law.
1 DS Textiles v. IIFL Finance Limited - Judgement dated April 30, 2026 in a bunch of
Petitions led by Arbitration Petition (L) 12097 of 2026
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11. There are two facets to unilateral appointments that have come to Court
time and again. First , are cases of unilateral appointments by a party that is
evidently not expected to be impartial and independent – say an office-bearer
of one of the parties to the arbitration agreement being the arbitrator, thereby
being a judge in one’s own cause. Such an appointment, even if contained in
the terms of the arbitration agreement have been held to be illegal. Second ,
are cases of one of the parties to the arbitration agreement alone making the
appointment of the arbitrator. Such an arbitrator need not be connected with,
or in the employment of that party and is therefore presented as
“independent” and “impartial” but is indeed appointed only by one of the
parties to the arbitration agreement.
12. Both types of unilateral appointments are bad in law in terms of the law
unequivocally declared by the Supreme Court. The point in issue is whether
the parties jointly have a say in making the appointment. Arbitration is a
conscious contractual choice of the parties to forego their access to the
sovereign public service of justice delivery by the Courts and to instead opt for
a privatised alternate forum outside Courts to adjudicate disputes.
13. In the design of the law, there are only two methods known to law for
appointment of an arbitrator – by consent of the parties or by appointment by
the High Court under Section 11 of the Act, when the parties cannot agree
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upon the identity of the arbitrator. There is no third means of validly
appointing an arbitral tribunal.
Law Declared by the Supreme Court:
14. Even where party autonomy is relied upon by reducing to writing in the
arbitration agreement, the power of one party to the dispute alone appointing
an arbitrator (regardless of whether such arbitrator is conflicted or is
independent of that party), the declaration of the law has evolved to stipulate
that a contractual provision of that nature would be bad in law on all facets
other than a commitment to go to arbitration.
15. I have dealt with the march of the law in IIFL , and to avoid prolixity, I
am not reproducing the content all over again. The law declared by the
2 3 4
Supreme Court in TRF , Perkins Eastman , CORE (Constitution Bench), and
5
more recently in Bhadra International (endorsing in it, the law declared by a
6
Learned Single Judge in Lite Bite , when interpreting and applying Perkins
7
Eastman ) unequivocally makes it clear that the process of appointment has to
involve both parties or the appointment is to be by the Court under Section 11
of the Act. Paragraphs 8, 9 and 10 of IIFL extract from these precedents.
2 TRF Ltd. v. Energo Engg. Projects Ltd.- (2017) 8 SCC 377
3 Perkins Eastman Architects DPC v. HSCC ( India) Ltd.- (2020) 20 SCC 760
4 Central Organisation for Railway Electrification v. ECI SPIC SMO MCML (JV) A Joint
Venture Company- (2025) 4 SCC 641
5 Bhadra International (India) Pvt. Ltd. & Ors. v. Airports Authority of India- 2026 INSC 6
6 Lite Bite Foods Pvt. Ltd. v. Airports Authority of India -2019 SCC OnLine Bom 5163

7 Perkins Eastman Architects DPC and Anr. v. HSCC ( India) Ltd.- (2020) 20 SCC 760
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16. For purposes of this judgement, extraction of just the following
paragraph from Bhadra International would suffice:
38. One another good reason to hold the aforesaid is that, although Section 11(2)
of the Act, 1996, stipulates that the parties are free to agree on a procedure for
appointing the arbitrator or arbitrators, yet this freedom is not unbridled. The exercise
of party autonomy must operate within the framework of the Act, 1996. In case of
conflict, mandatory provisions of the Act, 1996, prevail over the arbitration
agreement.
[Emphasis Supplied]
17. This extraction is necessary because Mr. Khandeparkar would seek to
distinguish the facts of this case by pointing to the nature of the arbitration
clause in the contract. He would fairly submit that ICICI is reviewing its
options after the declaration of the law in IIFL and pleads that no direction
need be issued to the Audit Committee of ICICI to conduct a review of
compliance with the law declared by the Supreme Court, as has been done in
IIFL .
Arbitration Agreement:
18. The arbitration agreement i.e. Clause 28 of the terms and conditions
made applicable to the personal loan granted to the Petitioner is extracted
below:
28. Online Dispute Resolution (ODR): Any claim or dispute whatsoever (whether in
contract, tort or otherwise) arising out of or in connection under the terms of facility,
including any question regarding its construction, meaning, existence, validity,
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breach, recall, recovery or termination, shall be resolved and settled by mediation or
conciliation (if the Borrower(s) and ICICI Bank agree to such mediation or
conciliation), administered in accordance with the applicable mediation or
conciliation rules of an independent online dispute resolution institution listed on
ICICI Bank Limited website (“ODR Institutions”). Any party may appoint any listed
ODR institutions to facilitate mediation or conciliation. If one Party appoints an ODR
institution before the other, the ODR institution appointed by the first Party shall be
binding on other party. If the Borrower(s) and ICICI Bank do not agree to mediation
or conciliation, or if the mediation or conciliation fails to resolve the claim or dispute
within the period stipulated in such rules or within a period of 21 days from the date
of notice of appointment of mediator or conciliator (whichever is earlier), then the
claim or dispute shall be taken forward for adjudication by arbitration in terms of the
applicable rules of said ODR Institution, and in accordance with the Arbitration and
Conciliation Act, 1996, which shall be conducted (including for recording of evidence
or tendering of documents), concluded and administered online by ODR Institution
through its website/platform or mobile application. The arbitral tribunal shall consist
of an independent sole arbitrator appointed in accordance with the applicable
arbitration rules of the ODR Institution. The seat of arbitration proceedings shall be
Mumbai. The law governing the arbitration proceedings shall be Indian law. The
procedural law of arbitration shall be rules of ODR Institution.
[Emphasis Supplied]
19. This is a problematic clause. A careful reading of the expansive verbiage
in it, would show that the clause entails an agreement to resort to mediation or
conciliation through an ODR Platform. The words in parentheses, namely,
“ (if the Borrower(s) and ICICI Bank agree to such mediation or conciliation) ”
are at the threshold of the provision. If the parties do not agree to mediation
or conciliation by an ODR Platform, it begs the question as to how arbitration
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could commence under the rules of that ODR Platform. For mediation or
conciliation to fail, it has to commence. For it to commence, the parties have
to agree. If the parties do not agree, it is inexplicable that the ODR Platform
would proceed to conduct arbitration unless arbitration is invoked in
accordance with law. That entails a notice under Section 21 of the Act, a wait
for 30 days to build consensus over the Arbitral Tribunal, failing which resort
could be had to Section 11 of the Act.
20. Leaving this lacuna aside, there is a semblance of choice of ODR
Platforms that is sought to be suggested in the clause, but Mr. Khandeparkar
fairly admits that at all times relevant to this Petition, the “list” of ODR
Platforms contained only one name – the ODR Platform which picked the
arbitrator who has passed the Impugned Order, now withdrawn.
21. More importantly, the clause does not indicate where on the ICICI
website the list of ODR Platforms would be found. The counterparty would
need to conduct a search to find out which institution is listed on the ICICI
website. Mr. Khandeparkar submits that the Petitioner would have checked
the ICICI website when he executed documentation with ICICI and would be
deemed to have applied his mind to the identity of the named ODR Platform,
which was the sole name on its website then, and therefore consciously agreed
to the arbitration clause with knowledge of this ODR Platform being the
chosen forum. A list indicating names of three ODR Platforms was tendered
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by Mr. Khandeparkar across the bar as the current list of ODR Platforms on
ICICI’s website.
22. This does not turn the needle at all in favour of ICICI in terms of the
rule of law in commencement of arbitration. Needless to say, who gets on to
the list on ICICI’s website and who stays out of it is purely a matter of ICICI’s
sole choice. It is a list curated by ICICI. There is no element of choice or
exercise of party autonomy that lies at the foundation of arbitration
agreements that would be in play.
23. The seeming choice in the arbitration agreement is also noteworthy –
either party may initiate mediation or conciliation, but the ODR Platform
suggested by the party that moves first would be the chosen ODR Platform. If
the disputes are not resolved in 21 days (assuming the parties agreed for
mediation or conciliation), the arbitration would kick in. This also raises the
issue of when the arbitration proceedings actually commence, which under
Section 21 of the Act, is the date of invocation of arbitration. The mere
transposition of a curated list of ODR Platforms would not somehow cleanse
the infirmity of one party alone selecting the catchment list of ODR Platforms,
from which the other party has the seeming right to make an ostensible
choice. In any case, a choice from a list curated by the other party, and that too
with a first-mover advantage to the curating party initiating the mediation,
runs counter to the bedrock of party autonomy.
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24. To simply apply this contractual framework to the facts of this case, it is
noteworthy that the Petitioner has been raising concerns about mis-selling to
ICICI and his relationship manager. All that ICICI does when a customer
raises such a grievance, is to pick an ODR Platform from the list and ask it to
send a conciliation and mediation notice. This act would then, according to
ICICI, bind the counterparty to eventual arbitration by an arbitral tribunal in
the formation of which, the counterparty would have no say. All of this would
run the course, if one ignores the fact that the words in parentheses extracted
above (about the need for agreeing on mediation or conciliation) are ignored.
25. In the facts of this case, there was a list of only one name at all times
relevant to the dispute. Therefore, there was no question of choice whatsoever
in any case. Even if there had been more than one ODR Platform, giving room
for an ostensible choice, it would have still been without compliance with the
foundational principles of the Act. This is what has been declared in the
judgements of the Supreme Court referred to above, and explained in more
detail in IIFL .
26. To be clear, this is not a case of parties having a contract with an agreed
and named ODR Platform in their contract, but a clause permitting one of the
parties to curate a list of ODR Platforms of its choice from which a purported
choice could ostensibly be made later. If the agreement between the parties
were to have a named independent arbitrator or arbitral institution, the
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position in law could be different, but if one of the parties has, in substance,
been contracted out of its right to choose an arbitrator by having a purported
choice only from a list curated by the other party, it would endorse and build
further upon the unequal strengths of the parties that disrupts party
autonomy in making a choice.
Seventh Schedule:
27. Mr. Khandeparkar goes a step further to invoke Explanation 3 in the
Seventh Schedule of the Act (which deals with the disqualifications in relation
to independence and impartiality of arbitrators), which reads thus:
Explanation 3.— For the removal of doubts, it is clarified that it may be the practice
in certain specific kinds of arbitration, such as maritime or commodities arbitration, to
draw arbitrators from a small, specialized pool. If in such fields it is the custom and
practice for parties frequently to appoint the same arbitrator in different cases, this is a
relevant fact to be taken into account while applying the rules set out above.
[Emphasis Supplied]
28. I am afraid this provision has nothing to do with entitling one party to
unilaterally select an arbitrator or select an institution that would appoint the
arbitrator. This is a provision that deals with the scenario of multiple arbitral
proceedings being handled by the same arbitrator or set of arbitrators.
29. In any case, for a bank to conduct recovery proceedings at an industrial
scale across multiple accounts through a self-chosen ODR Platform, from its
curated pool of arbitrators, can lead to multiple cases being handled by the
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same individual arbitrator. The ODR Platforms would need to enhance their
catchment area and expand their pools, but recovery proceedings where
orders under Section 17 are passed with barely any display of facts much less
complex facts, would hardly fall within the ambit of the kinds of arbitration
where it is a custom and practice to appoint from a specialised pool of
arbitrators. There is nothing specialised in recovery proceedings akin to
maritime disputes or commodities disputes for the pool to be a small and
narrow one, to necessitate the mitigation in respect of multiple disputes of the
same litigant being handled by the same individual arbitrator.
30. Therefore, Explanation 3 of the Seventh Schedule makes no difference
to the analysis above. The issue in this judgement is one of the rule of law and
compliance with the framework of the Act. What banks, particularly large ones
need to do is to be compliant with the law declared by the Supreme Court and
ensure that the process of appointment of arbitrators is genuinely
independent and informed by consent of the parties, rather than control who
can make the appointment, and thereby hope that the process of appointment
would become independent. Indeed, such a practice can lead to concentration
of multiple arbitration proceedings with individual arbitrators , necessitating
invocation of Explanation 3 to claim specialisation akin to maritime law or
complex commodities transactions.
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31. Since Mr. Khandeparkar has assured that ICICI is in any case reviewing
the process of appointment of arbitrators, no specific direction is passed about
the Audit Committee having to examine the matter – that is a requirement by
law and I have no reason not to take Mr. Khandeparkar’s assurance that the
approach will be reviewed.
32. The Petition is finally disposed of with the aforesaid observations and
findings on law to ensure future compliance.
33. All actions required to be taken pursuant to this order shall be taken
upon receipt of a downloaded copy as available on this Court’s website.
[ SOMASEKHAR SUNDARESAN, J.]
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