Gorakshanath V Waghmare vs Olympia Enterprises

CNR No : HCBM020232752026

arbap364-2026-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION NO.364 OF 2026
Gorakshnath Vishnu Waghmare … Applicant
V/s.
ATUL
GANESH
KULKARNI
1. Olympia Enterprises
2. Mohammed Salim Abdul Gaffar
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.10.16
15:51:15 +0530
Sopariwala
3. Sairabanu Mohammed Salim
Sopariwala … Respondent
Mr. Dilip B. Shinde with Mr. Mohan Kumbhar, and Mr.
Vinay Chavan i/by Mr. Mukund Mane for the
Applicant.
Mr. K.K. Tripathi for the Respondents.
CORAM : AMIT BORKAR, J.
RESERVED ON : OCTOBER 15, 2026.
PRONOUNCED ON : OCTOBER 16, 2026
JUDGMENT:
1. The present Application has been filed under Section 11 of
the Arbitration and Conciliation Act, 1996 (“the Act”), seeking the
appointment of an Arbitrator for adjudication of the disputes and
differences stated to have arisen between the parties.
2. The applicant, Gorakshanath V. Waghmare, is relying on the
Permanent Alternate Accommodation Agreement dated 24 June
2021. According to him, under the said agreement, the
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respondents had agreed to give him Flat No. 1604, having carpet
area of 455 square feet, in Olympia Tower, C Wing. The flat was to
be given to him without taking any amount and on ownership
basis. The applicant says that the building was completed in
February 2026, but even thereafter the respondents have not given
possession of the flat to him. These facts are stated in the
application and in the notice invoking arbitration at pages 69 to 75
of the paper book.
3. The applicant says that, as per the agreement, the
respondents were required to give him 15 days' written notice
before handing over possession of the flat. However, according to
him, no such notice was given and possession was also not handed
over. He also claims that the respondents stopped paying transit
rent from March 2026, though he had not received the alternate
accommodation. From these facts, it appears that disputes have
arisen between the parties regarding the agreement. Whether the
respondents have committed breach of the agreement and whether
the applicant is entitled to possession of the flat or payment of
transit rent are matters which will have to be decided according to
law. At this stage, while considering appointment of an arbitrator,
this Court is not required to finally decide these claims.
4. The notice at pages 69 to 75 shows that the applicant
invoked the arbitration clause and suggested the name of Mr. R. M.
Haridas, Advocate, for being appointed as the sole arbitrator. The
respondents replied by their letter dated 25 May 2026, which is at
pages 76 to 78 of the paper book. They did not agree to the
appointment suggested by the applicant. Thus, it appears from the
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record that the applicant called upon the respondents to proceed
with arbitration, but the parties could not agree on the
appointment of an arbitrator.
5. The main objection of the respondents is that a dispute
relating to the same premises is already pending before the Small
Causes Court at Mumbai in R.A.D. Suit No. 423 of 2021. In
paragraph 2 of their reply dated 25 May 2026, the respondents
have stated that the subject matter mentioned in the arbitration
notice is already involved in the said suit. On this basis, they
contend that there is a legal difficulty in proceeding with
appointment of an arbitrator by referring to Section 8 of the
Arbitration and Conciliation Act, 1996.
6. The papers relating to the proceedings before the Small
Causes Court, at pages 119 to 179, show that Onkar Namdev
Waghmare has claimed that he is a deemed and protected co-
tenant of Room No. 10 in Umarbai Chawl. The applicant is
Defendant No. 1 in that suit. The plaintiff in the suit claims that
the applicant alone cannot claim the tenancy and that he and his
family members also have rights in the said premises. The
applicant has disputed this claim and has stated that he is entitled
to the tenancy of the premises.
7. The fact that the suit is pending before the Small Causes
Court is required to be considered. However, the dispute raised in
that suit has to be seen separately from the dispute raised in the
present application. The suit before the Small Causes Court relates
to the rival claims of family members regarding tenancy rights in
the old premises. On the other hand, the present application arises
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from the agreement dated 24 June 2021, under which the
applicant claims that the respondents are required to provide him
permanent alternate accommodation. Both proceedings may be
connected with the same property and some facts may also be
common. But only because another suit is pending, it cannot be
said that every dispute arising from the agreement cannot be
referred to arbitration.
8. The respondents have also relied upon page 19, sub-clause
(J), of the agreement and the Indemnity Bond executed by the
applicant on 22 June 2021. They have pointed out that the
agreement has been produced before the Small Causes Court and
that an application for injunction has also been filed in that suit.
These objections need to be considered. However, merely because
an Indemnity Bond has been executed, or the agreement has been
produced before another Court, it does not mean that the
arbitration clause cannot be acted upon. The actual terms of the
agreement, the terms of the Indemnity Bond and the reliefs
claimed in the pending suit will have to be considered. It is only
after considering these matters that it can be decided whether
there is any legal reason which prevents the disputes from being
referred to arbitration.
9. Section 11 of the Arbitration and Conciliation Act, 1996,
empowers the Court to appoint an arbitrator when there is an
arbitration agreement between the parties, but the process of
appointment cannot be completed. At this stage, the Court has to
see whether an arbitration agreement exists between the parties
and whether the dispute raised by the applicant can be referred to
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arbitration under that agreement. The Court is not required to
conduct a full trial or finally decide all the disputed facts and
claims arising under the agreement. Ordinarily, these matters are
to be decided by the arbitral tribunal, subject to its jurisdiction
under the agreement and the law.
10. The objection raised by the respondents with reference to
Section 8 of the Act also requires consideration. Merely because a
civil suit has been filed, it does not mean that arbitration cannot
proceed. It has to be examined whether the dispute raised in the
suit is the same as the dispute which the applicant seeks to refer to
arbitration, whether the parties and their claims are covered by the
arbitration agreement and whether any provision of law prevents
such reference. On the material presently considered, the objection
raised by the respondents, does not establish that the applicant
cannot seek appointment of an arbitrator under Section 11 of the
Act.
11. Considering the written agreement relied upon by the
applicant, the notice invoking arbitration and the refusal of the
respondents to agree to the proposed appointment, it appears that
the applicant has made out a case for appointment of an arbitrator.
Whether the applicant is entitled to the flat, whether transit rent is
payable, what effect the Indemnity Bond will have and how the
pending suit before the Small Causes Court affects the present
dispute are matters which need not be finally decided in this
application. These questions will have to be decided by the
appropriate forum in accordance with the agreement and the
applicable law.
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12. For the reasons stated above, the application deserves to be
allowed by appointing an independent arbitrator to decide the
disputes arising out of the Permanent Alternate Accommodation
Agreement dated 24 June 2021, provided there is no legal bar to
referring those disputes to arbitration. Appointment of an
arbitrator will not mean that this Court has accepted the
applicant's claim that he alone is entitled to the tenancy of the old
premises. It will also not mean that the respondents have been
held to have committed breach of the agreement or that the
applicant is entitled to the flat or the amounts claimed by him. All
these questions will remain open and will have to be decided on
their merits and according to law.
13. In the aforesaid circumstances, the present Application under
Section 11 of the Act, is deserved to be disposed of in terms of the
following order:
A) Lizum Wangdi , is hereby appointed as the Sole
Arbitrator to adjudicate upon the disputes and differences
between the parties arising out of and in connection with the
Agreements referred to above;
Office Address:- 205, 2nd Floor, Arcadia, NCPA Marg,
Nariman Point, Mumbai – 400 021.
Email – [email protected]
B) A copy of this Order will be communicated to the
Learned Sole Arbitrator by the Advocates for the Applicant
within a period of one week from today. The Applicant shall
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provide the contact and communication particulars of the
parties to the Arbitral Tribunal along with a copy of this
Order;
C) The Learned Sole Arbitrator is requested to forward the
statutory Statement of Disclosure under Section 11(8) read
with Section 12(1) of the Act to the Advocates for the
Applicant so as to enable them to file the same in the
Registry of this Court. The Registry of this Court shall retain
the said Statement on the file of this Applicant and a copy of
the same shall be furnished by the Advocates for the
Applicant to the Advocates for the Respondent;
D) The parties shall appear before the Learned Sole
Arbitrator on such date and at such place as may be
indicated by the Learned Sole Arbitrator, for obtaining
appropriate directions with regard to the conduct of the
arbitral proceedings, including fixing the schedule for filing
of pleadings, examination of witnesses, if any, and dates of
hearing. At such meeting, the parties shall furnish to the
Arbitral Tribunal valid and functional email addresses,
together with the mobile and landline telephone numbers of
their respective Advocates. Communications sent to the said
email addresses shall constitute valid service of
correspondence in connection with the arbitral proceedings.
E) All arbitral costs and fees of the arbitration and of the
Arbitral Tribunal shall be borne by the parties equally in the
first instance. The same shall, however, remain subject to any
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final Award that may be passed by the Arbitral Tribunal in
relation to costs.
14. The Learned Sole Arbitrator shall be at liberty to adjudicate
upon the claims and counterclaims, if any, and to determine all
questions relating to merits, in accordance with law.
15. 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.
16. The Commercial Arbitration Application stands disposed of
in above terms.
(AMIT BORKAR, J.)
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