M/S WINNER CONSTRUCTION PVT.LTD. vs M/S TEXAS RESOURCES PVT.LTD.

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU.


Case No: AA No. 31/2014
C/W
AA No.41/2015

Reserved on: 22.07.2026
Pronounced on:11.09.2026
Uploaded on: 11.09.2026

Whether the operative part or full
Judgment is pronounced :Full


M/s Winner Construction Pvt. Ltd.

…… Petitioner(s)…..
Through: Mr. Pranav Kohli, Sr. Advocate with
Mr. Farhan Mirza, Advocate

v/s
M/s Texas Resources Pvt. Ltd.
Through: Mr. Rahul Pant, Sr. Advocate with Mr. Dhruv
Pant, Advocate.
Mr. Karman Singh Johal, Advocate

……Respondent(s)…

CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.



JUDGMENT


1. The Sainik Co-operative Housing Building Societies engaged the
services of M/s Shelatkar Construction Pvt. Ltd. for developing the Central
Shopping-cum-Commercial Complex at Sainik Colony, Jammu. M/s
Shelatkar Construction Pvt. Ltd., through its Architects, M/s Nanda
Designers Consortium, invited tenders for outsourcing the work to other
contractor. M/s Texas Resources Pvt. Ltd. submitted its offer for the work,

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which was accepted by M/s Shelatkar Construction Pvt. Ltd. Accordingly,
the work order dated 20.07.2010 was issued in favour of M/s Texas
Resources Pvt. Ltd., and an agreement was entered into between M/s
Shelatkar Construction Pvt. Ltd. and M/s Texas Resources Pvt. Ltd. M/s
Texas Resources Pvt. Ltd. allotted a part of the said work to M/s Winners
Construction Pvt. Ltd. vide letter of intent dated 28.07.2010.

2. The petitioner, M/s Winner Construction Pvt. Ltd., filed a petition
bearing AA No. 31/2014 under Section 11(6) of the Arbitration and
Conciliation Act, 1997 for appointment of an Arbitrator against M/s Texas
Resources Pvt. Ltd. Subsequently, in terms of order dated 10.04.2026, M/s
Shelatkar Construction Pvt. Ltd. was arrayed as respondent No. 2 in the
petition.
3. In turn, M/s Texas Resources Pvt. Ltd. also filed a petition bearing
AA No. 41/2015 under Section 11(6) of the Arbitration and Conciliation
Act, 1997 against M/s Shelatkar Construction Pvt. Ltd. Pursuant to order
dated 18.08.2023, M/s Winner Construction Pvt. Ltd. was arrayed as
respondent No. 2 in the petition filed by M/s Texas Resources Pvt. Ltd.

4. Since the petitioner in AA No. 31/2014 has mainly relied upon the
agreement between M/s Shelatkar Construction Pvt. Ltd. and M/s Texas
Resources Pvt. Ltd. for settlement of the disputes through arbitration, all
these petitions were heard together and are being disposed of by this
common order.
5. First the petition filed by M/s Texas Resources Pvt. Ltd. against M/s
Shelatkar Construction Pvt. Ltd. and another, bearing AA No. 41/2015,
shall be considered.

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AA No.41/2015
6. The petitioner, M/s Texas Resources Pvt. Ltd., has filed the present
petition for appointment of an Arbitrator on the ground that various
disputes have arisen between the parties and the petitioner is entitled to a
sum of Rs.3,07,74,534/- The petitioner, through notice dated 03.10.2015,
requested respondent No.1 to appoint an Arbitrator in terms of the
arbitration clause contained in the agreement entered into between the
parties, but the request of the petitioner was not acceded to .
7. The respondent No.1 has filed its response, stating therein that there
is no arbitration agreement between the parties so as to confer jurisdiction
upon this Court, as, according to respondent No.1, the arbitration
proceedings are to be governed by the provisions of the Indian Arbitration
Act, 1940, or any statutory amendments thereto or any re-enactment
thereof for the time being in force. It is further contended that the present
petition is not maintainable before this Court, as the said application can
only be entertained by the competent Court at Mumbai, Maharashtra. It has
also been contended that the petition is time-barred and that no decision
was taken by the company authorizing Shri Naveen Anand to file any
petition against the respondent No.1. The respondent No.1 has also denied
the issuance of the notice dated 03.10.2015.
8. Mr. Karman. S. Johal, learned counsel appearing for the petitioner,
has submitted that the dispute has arisen between the parties as the
petitioner has been paid only an amount of Rs. 50,00,000/-, whereas a sum
of Rs. 2,07,64,534/- is still due and payable to the petitioner-company by

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respondent No.1. He has further submitted that the petition has been filed
by a duly authorized person and, as such, an Arbitrator may be appointed .
9. Per contra , Mr. Rahul Pant, learned Senior Counsel for the
respondent No.1, M/s Shelatkar Construction Pvt. Ltd., restricted the
challenge to the appointment of an Arbitrator solely only on the ground that
the petition has been instituted by an incompetent person. In support of this
contention, he relied upon the judgments in Hari Shree Enterprises v. Vikas
Housing Ltd. , 2009(4) ALL MR 247; Kleen and Marshalls Manufacturers
and Exports Limited v. State of Jammu & Kashmir , (2000) 2 KarLJ 435;
Apple Valley Resort (M/s.) v. H.P. State Electricity Board and another ,
2004(1) CLJ (H.P.) 281; and M/s Nibro Limited v. National Insurance Co.
Ltd. (Delhi High Court, Suit No. 933 of 1983, decided on 06.03.1990).
10. Heard learned counsel appearing for the parties and perused the
record.
11. As the learned Senior Counsel having restricted his submissions
exclusively to the maintainability of the petition on the ground of the
incompetence of Shri Naveen Anand to file the present petition, this Court
need not advert to the remaining objections set out in the reply filed by the
respondent No.1, M/s Shelatkar Construction Pvt. Ltd.
12. The Board Resolution, pursuant to which Mr. Naveen Anand has
been authorized to institute and file civil suits/applications/cross-
appeals/petitions and affidavits, etc., is extracted as under:
“CERTIFIED COPY OF THE BOARD RESOLUTION
PASSED IN THE MEETING OF BOARD OF DIRECTORS
TH
OF THE COMPANY HELD ON THURSDAY,27

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SEPTEMBER 2012 AT 1C LOVELOCK PLACE, THE
REGISTERED OFFICE OF THE COMPANY.
RESOLVED that permission of the BOARD OF
DIRECTORS of the Company, be and is hereby accorded to
the proposal of authorizing MR. NAVEEN ANAND , for the
purpose of filing Civil Suit / Application /Cross Appeals /
Petitions & Affidavits or other documents in the Court of Law
at Jammu & Kashmir and further to appoints and instruct
Legal Practitioner/Advocates/Attorney for the said purpose
and further Mr. Naveen Anand shall have all the authority to
do all acts necessary for any Civil Litigation in the State of
Jammu & Kashmir for and on behalf of M/s TEXAS
RESOURCES PRIVATE LIMITED.”
13. A perusal of the aforesaid Board Resolution reveals that at a
meeting of the Board of Directors held on 27.09.2012 at the registered
office of the Company, a proposal was considered and passed, authorizing
Shri Naveen Anand to institute and pursue civil suits, applications, cross-
appeals, and petitions, as also to file affidavits and other pleadings before
Courts of law in the State of Jammu & Kashmir. He was further
empowered to engage legal practitioners, advocates, or attorneys, and to
perform all necessary acts in connection with civil litigation for and on
behalf of M/s Texas Resources Pvt. Ltd.
14. It is, thus, evident that Shri Naveen Anand is the duly authorized
representative of the petitioner-Company, specifically empowered to
institute litigation and perform all acts incidental thereto within the
erstwhile State of Jammu & Kashmir. Consequently, the judgments relied
upon by the learned Senior Counsel are distinguishable and bear no
application to the facts of the present case, given that the Board of
Directors of M/s Texas Resources Pvt. Ltd. had expressly authorized Shri
Naveen Anand to institute proceedings and engage counsel on its behalf.

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15. There is, therefore, no merit in the submission of Mr. Pant, learned
Senior Counsel for the respondent No.1 that the present petition has been
instituted by an incompetent person. On the contrary, the objection
regarding lack of authority is one that redounds against the respondent
No.1-Company itself. The reply on behalf of the respondent No.1-
Company has been filed by one Ravindranath Sahadevrao Shelatkar, whose
status and authority vis-à-vis the Company remain unestablished on record.
No board resolution or authorization has been produced to demonstrate that
the said individual is empowered to represent the respondent in these
proceedings. Consequently, the decisions relied upon by the learned Senior
Counsel do not advance the respondent No.1’s case; rather, the principles
enunciated therein operate against the respondent No.1 for its own failure
to show that the objections were filed by an authorized person.
16. Be that as it may, this Court finds that there exists an arbitration
clause between the parties, contained in Clause 44 of general conditions of
Contract, and that the petitioner has invoked the said arbitration clause by
way of notice dated 03.10.2015, seeking reference of the disputes that have
arisen between the parties to arbitration. Accordingly, the present petition
is allowed.
AA No.31/2014 .
17. The petitioner-M/s Winner Construction Pvt. Ltd., was sub-
contracted a portion of the project work by the respondent No.1, M/s Texas
Resources Pvt. Ltd., and has invoked the jurisdiction of this Court seeking
appointment of an Arbitrator for the adjudication of disputes that have
arisen between the parties.


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18. Briefly stated, the petitioner's case is that the respondent No.1, M/s
Texas Resources Pvt. Ltd., issued a Letter of Intent dated 28.07.2010 in its
favour. Under the terms thereof, all the provisions of the main agreement,
including the arbitration clause between M/s Shelatkar Construction Pvt
Ltd. and M/s Texas Resources Pvt. Ltd were incorporated into and made an
integral part of the Letter of Intent issued by respondent No. 1 in favour of
the petitioner.

19. The petitioner claims to have served a notice dated 23.09.2013 upon
the respondent-M/s Texas Resources Pvt. Ltd., calling upon the respondent
to make the payment of Rs. 98,19,314/ to the petitioner .
20. The respondent No.1-M/s Texas Resources Pvt. Ltd. has filed
objections, stating therein that the petitioner never approached the
respondent for appointment of an Arbitrator, which, according to the
respondent, is a mandatory requirement under the Arbitration and
Conciliation Act, 1997. It is further contended that the Letter of Intent
dated 28.07.2010 merely refers to the terms and conditions contained in the
contract/tender documents of M/s Shelatkar Construction Pvt. Ltd. and
does not incorporate or refer to the arbitration agreement contained in the
agreement executed between M/s Shelatkar Construction Pvt. Ltd. and the
answering respondent. It is further contended that the petitioner was not a
party to the agreement executed between the answering respondent and M/s
Shelatkar Construction Pvt. Ltd., therefore, the communication dated
28.07.2010 would not ipso facto extend the terms and conditions of the said
agreement, including the arbitration clause, to the petitioner and answering

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respondent. Respondent No.1 has, however, admitted that the work was
allotted to the petitioner on a back-to-back basis as a sub-contractor vide
communication dated 28.07.2010, while denying that the agreement
executed between the respondent and M/s Shelatkar Construction Pvt. Ltd.
was made part of the Letter of Intent or the contractual arrangement
between the petitioner and respondent No.1.

21. Mr. Pranav Kohli, learned Senior Counsel appearing for the
petitioner, has argued that the parties were ad idem with regard to the terms
and conditions of the contract, including those contained in the agreement,
particularly Clause 44 thereof. He has laid considerable emphasis on the
settled principle of law that there need not necessarily be a single document
signed by the parties constituting the arbitration agreement and that even an
unsigned arbitration agreement can be enforced, provided that the existence
of such an agreement can be gathered from a series of documents forming
part of the contractual arrangement between the parties. He has further
argued that issuance of notice under Section 21 of the Arbitration and
Conciliation Act, 1997 is mandatory; however, non-issuance of such notice
is not fatal to the proceedings. In support of his submissions, he has relied
upon the judgments of the Hon'ble Supreme Court of India in Nehru
Nagar Samruddhi CHS Ltd. v. Hirani Developers , reported as 2026
INSC 484 ; ASF Buildtech (P) Ltd. v. Shapoorji Pallonji and Co. (P)
Ltd. , reported as (2025) 9 SCC 686 ; Adavya Projects Private Limited v.
Vishal Structurals Private Limited and others ; and M/s Bhagheeratha
Engineering Ltd. v. State of Kerala , reported as 2026 LiveLaw (SC) 31 .

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22. Per contra , Mr. Karman S Johal, learned counsel appearing for
respondent No.1, has argued that a mere reference to the tender documents
of M/s Shelatkar Construction Pvt. Ltd. in the Letter of Intent would not
have the effect of incorporating the arbitration clause into the LOI,
particularly when the arbitration clause was required to be specifically
incorporated in the Letter of Intent and could not be made applicable
merely by way of a general reference to the terms and conditions contained
in the tender documents. He has further argued that the raising of bills or
even execution of the work would not ipso facto attract an arbitration
clause in a secondary document, where such secondary document does not
specifically provide for the incorporation of the arbitration clause. He has
also submitted that no notice invoking arbitration was ever issued by the
petitioner. According to him, the notice appended to the petition was
merely a demand notice calling upon respondent No.1 to pay an amount of
Rs. 98,19,314/- along with interest @ 18% to the petitioner and through the
medium of this notice, the petitioner did not invoke arbitration because the
petitioner knew that that there was no arbitration agreement between the
parties. It is, therefore, contended that the mandatory requirement of
issuance of a notice invoking arbitration was never complied with by the
petitioner. In support of his submissions, he has relied upon the judgments
of the Hon'ble Supreme Court of India in NBCC (India) Limited v.
Zillion Infraprojects Pvt. Ltd. , reported as 2024 INSC 218 ; Hirani
Developers v. Nehru Nagar Samruddhi CHS Ltd. and another , reported
as 2026 INSC 484 ; Adavya Projects Pvt. Ltd. v. M/s Vishal Structurals

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Pvt. Ltd. , reported as AIR 2025 SC 2485 ; and Inox Wind Limited v.
Thermocables Limited , reported as (2018) 2 SCC 519 .
23. Heard learned counsel appearing for the parties and perused the
record.
24. Two issues arise for consideration before this court:-
(i) Whether there exists an agreement between the
parties providing for reference of disputes to
arbitration ?

If the answer to the aforesaid question is in the
(ii)
affirmative, whether the petitioner has invoked the
arbitration clause by issuing an appropriate notice
and, if not, what would be the consequence thereof?
Issue no.1: Whether there exists an agreement between the
parties providing for reference of disputes to
arbitration?
25. It is undisputed that there is no executed document signed by both
the petitioner and respondent No. 1 containing an express arbitration
agreement. Instead, the petitioner rests its prayer for reference of disputes
to arbitration solely upon Clause ‘E’ of the Letter of Intent dated
28.07.2010 issued in its favour by respondent No. 1. The said clause is
extracted hereunder
:-
“E. Terms and conditions- All terms and
conditions shall be as per the contract tender
documents by M/s Shelatkar Construction Pvt.
Ltd.”.

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26. In terms of Clause ‘E’ of the Letter of Intent, the terms and
conditions of the contract were to be as per the contract/tender documents
of M/s Shelatkar Construction Pvt. Ltd. The question that, therefore, arises
for consideration is whether Clause ‘E’ of the Letter of Intent would, by
such reference, have the effect of incorporating all the terms and conditions
of the agreement executed between the respondent No.1 and M/s Shelatkar
Construction Pvt. Ltd., including the arbitration clause, into the contractual
arrangement between the petitioner and respondent No.1.

27. Learned counsel for the petitioner has placed reliance upon the
judgment of the Hon’ble Supreme Court of India in Hirani Developers v.
Nehru Nagar Samruddhi CHS Ltd. and another , reported as 2026 INSC
484 . In the said case, the appellant had initially entered into a Development
Agreement with the respondent-Company, Clause 36 whereof provided
that, in the event of any dispute or difference arising in respect of the terms
and conditions of the said agreement, the parties would appoint a Sole
Arbitrator and the arbitration proceedings would be conducted in
accordance with the provisions of the Arbitration and Conciliation Act,
1996. Subsequently, the appellant entered into separate agreements with
the Society and its members. Clause 14 of those agreements specifically
provided that: “it is clarified that all the terms and conditions of the
Development Agreement dated 04.07.2012 shall be construed to form part
of these presents and all the clauses of the same shall be binding on the
parties hereto.”
28. It was in the aforesaid factual backdrop that the question arose
before the Hon’ble Supreme Court as to whether the terms and conditions

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of the Development Agreement dated 04.07.2012, including the arbitration
clause contained therein, stood incorporated ipso facto into the subsequent
agreements executed between the appellant, the Society and its members.
The Hon’ble Supreme Court, while examining the said issue, observed as
under:
“ 11. Applying the afore-stated edict and, in
particular, the illustration in paragraph 17 of M.R.
Engineers and Contractors Private Limited (2024)
7 SCC 174 (supra), we find that this was not a
case of mere reference to an earlier document
containing an arbitration clause. The later
Permanent Alternate Accommodation Agreements
entered into by the appellant with the respondent
members unequivocally recorded in Clause 14
thereof that all the terms and conditions of the
Development Agreement dated 04.07.2012 shall
be construed to form part of the said agreements
and all clauses of the same shall be binding on the
parties to those later agreements. There could be
no clearer indication of the intention of the parties
to incorporate and assimilate the Development
Agreement dated 04.07.2012 in its entirety into the
later Permanent Alternate Accommodation
Agreements. Not stopping short at asserting that all
terms and conditions of the said Development
Agreement should be construed to be part of the
Permanent Alternate Accommodation Agreements,
Clause 14 goes on to affirm that all clauses of the
Development Agreement shall be binding on the
parties to the Permanent Alternate
Accommodation Agreements.
12 . This was, thus, not a case of mere reference to
an earlier agreement but a case where the parties to
the later contract clearly intended to import the
Development Agreement, body and soul, into the
later agreements. Therefore, there can be no doubt
as to the incorporation of Clause 36 of the
Development Agreement, i.e., the arbitration
clause, into the Permanent Alternate
Accommodation Agreements.”
29. In “ Shinhan Bank v. Carol Info Services Ltd.” , (2023) 20 SCC
388, the Hon’ble Apex Court has held as under:

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11. The amenities agreement which was entered
into between the parties on 25-8-2016, inter alia,
contains the following provision:
“This Agreement is executed
contemporaneously with the said Leave
and Licence Agreement and shall be
read and construed accordingly. The
provision of this Agreement shall be
deemed to be and shall constitute an
integral part of the said Leave and
Licence Agreement in respect of the
Licence of the Licensed Premise granted
by the Licensors to the Licensee. All
provisions of the said Leave and Licence
Agreement shall, mutatis mutandis;
apply to this amenities agreement.”
12. The amenities agreement contains a
provision to resolve disputes through arbitration.
Clause 17 is in the following terms:
“17. All disputes, controversies or claims
arising out of or relating to this
Agreement : including existence or
interpretation of any clause hereof, shall
be referred to arbitration by a sole
arbitrator duly appointed by mutual
consent of both the parties in writing,
failing which under the provisions of the
Arbitration and Conciliation Act, 1966.
The cost of the arbitration shall be borne
equally. The place of arbitration shall be
Mumbai and the arbitration shall be
governed by the Arbitration and
Conciliation Act, 1966 as amended from
time to time. The language of the
arbitration proceedings shall be English.
The award shall be final and conclusive.
The Courts in Mumbai shall have
exclusive jurisdiction to try and entertain
matters arising here from.”
13. The submission which has been urged on
behalf of the respondent is that in terms of
Section 7(5), a mere reference to a document
would not have the effect of making an
arbitration clause from that document a part of
the contract. The submission is based on the
decision of this Court in M.R. Engineers &
Contractors (P) Ltd. v. Som Datt Builders

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Ltd. [ M.R. Engineers & Contractors (P)
Ltd. v. Som Datt Builders Ltd. , (2009) 7 SCC
696 : (2009) 3 SCC (Civ) 271]
14. Clause (1) of the amenities agreement which
has been extracted above indicates that ( i ) the
provisions of the amenities agreement shall be
deemed to be and shall constitute an integral part
of the Leave and Licence Agreement in respect
of the licence granted by the petitioner to the
respondent; and ( ii ) all the provisions of the
Leave and Licence agreement shall mutatis
mutandis apply to the amenities agreement.
Clause 17 of the amenities agreement contains an
agreement to refer disputes to arbitration.
15. The plain consequence of Clause (1) of the
amenities agreement is that all the terms of that
agreement constitute an integral part of the Leave
and Licence agreement. The amenities agreement
does not merely contain a reference to the Leave
and Licence agreement. It incorporates all the
terms of the amenities agreement as an integral
part of the Leave and Licence agreement. By
doing so, the parties have intended to make the
arbitration clause in the amenities agreement an
integral part of the Leave and Licence agreement.
16. Section 7(5) of the Arbitration and
Conciliation Act, 1996 stipulates that the
reference in a contract to a document
containing an arbitration clause constitutes an
arbitration agreement if the contract is in
writing and the reference is such as to make
that arbitration clause part of the contract.
Clause (1) of the amenities agreement is intended
to make the arbitration clause which is embodied
in the amenities agreement (Clause 17) an
integral part of the Leave and Licence agreement.
30. In the present case, Clause 'E' of the Letter of Intent stipulates that all
terms and conditions shall align with the contract tender documents of M/s
Shelatkar Construction Pvt. Ltd. Thus, it cannot be definitively held at this
stage that no arbitration agreement exists between the parties. Be that as it
may, the Hon’ble Apex Court in “ Maharashtra State Electricity

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Distribution Co. Ltd. v. R Z Malpani ”, 2026 SCC OnLine SC 553, has
observed as under:
42. It goes without saying that the scope of inquiry
at the stage of Section 11 is extremely limited and
only pertains to an examination about prima
facie existence of an arbitration agreement.
Judicial non-interference in the arbitration
process is the sacrosanct principle which guides
alternative dispute resolution and Courts must be
highly circumspect in interfering at the referral
stage, especially since there is no appeal available
in the 1996 Act against an order under Section 11.
The Arbitral Tribunal, in exercise of its
jurisdiction under Section 16 must be left to
decide on its jurisdiction. The Courts should
follow the principle of ‘When in doubt, do refer’
and lean towards referring matters to arbitration
when the arbitration agreement is prima
facie existent. However, it is only in the rarest of
rare cases where even on a prima facie view,
without going into disputed facts between the
parties, there appears to be no existence of
arbitration agreement between the parties, the
Court can reject the application for appointment
of an arbitrator and reference of the parties to
arbitration. The instant case appears to be a fit case
where, as discussed, even without going into the
disputed facts and merely on a prima facie view of
the matter, there is no existence of arbitration
agreement and therefore, the decision of the High
Court to appoint an arbitrator requires interference.
31. The judgment of the Hon’ble Supreme Court of India in NBCC
(India) Limited v. Zillion Infraprojects Pvt. Ltd. , reported as 2024
INSC 218 , cannot be applied in this case. In fact, clause 7.0 of the LOI
weighed with the Hon’ble Supreme Court to observe that there was no
intention of the parties to incorporate the arbitration clause in the LOI. The
relevant para is extracted as under:
28. It is thus clear that the intention between the parties is
very clear. Clause 7.0 of the LoI which also forms part of
the agreement specifically provides that the redressal of
the dispute between NBCC and the respondent shall only

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be through civil courts having jurisdiction of Delhi alone.
It is pertinent to note that Clause 7.0 of the LoI specifically
uses the word “only” before the words “be through civil
courts having jurisdiction of Delhi alone ”.
32. In light of the above, guided by the well-settled principle laid down
by the Hon’ble Supreme Court, ‘when in doubt, refer’, this Court is of the
considered view that the issue regarding the existence of the arbitration
agreement should at least be left to be adjudicated by the learned
Arbitrator. Issue No.1 is answered accordingly.
Issue No.ii: If the answer to the aforesaid question is in the
affirmative, whether the petitioner has invoked
the arbitration clause by issuing an appropriate
notice and, if not, what would be the
consequence thereof?
33. Undisputedly, the demand notice dated 23.09.2013 issued to
respondent No. 1 for payment of Rs. 98,19,314/- does not constitute a valid
invocation under Section 21 of the Act, as arbitration was never invoked
thereunder. Nevertheless, learned Senior Counsel for the petitioner
contends that the non-issuance of a Section 21 notice is a procedural defect
rather than a jurisdictional bar, and therefore cannot warrant the rejection
of the Section 11 petition. In “ Bhagheeratha Engg. Ltd. v. State of
Kerala” , (2026) 5 SCC 758, the Hon’ble Apex Court has held as under:
39. Secondly, the object of Section 21 of the A&C Act, is
only for the purpose of commencement of arbitral
proceedings is also well settled. Section 21 is concerned
only with determining the commencement of the dispute
for the purpose of reckoning limitation. There is no
mandatory prerequisite for issuance of a Section 21
notice prior to the commencement of arbitration.
Issuance of a Section 21 notice may come to the aid of
parties and the arbitrator in determining the limitation for
the claim. Failure to issue a Section 21 notice would not
be fatal to a party in arbitration if the claim is otherwise
valid and the disputes arbitrable.

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40. In ASF Buildtech (P) Ltd. v. Shapoorji Pallonji & Co.
(P) Ltd. [ ASF Buildtech (P) Ltd. v. Shapoorji Pallonji &
Co. (P) Ltd. , (2025) 9 SCC 76 : (2025) 4 SCC (Civ) 27] ,
one of us, J.B. Pardiwala, J., felicitously put the principle
thus: (SCC pp. 209-12, paras 163,165 & 169)
“ 163 . The marginal note appended to Section 21 of
the 1996 Act makes it abundantly clear that the
notice to be issued thereunder is for the purpose of
“ commencement of arbitration proceedings ”. The
substantive provision further makes it clear that the
date on which a request/notice of invocation for
referring a dispute is received by the respondent,
would the date on which the arbitral proceedings in
respect of a particular dispute commences. The
words “particular dispute” assume significance in
the interpretation of this provision and its
underlying object. It indicates that the provision is
concerned only with determining when arbitration
is deemed to have commenced for the specific
dispute mentioned in the notice. The language in
which the said provision is couched is neither
prohibitive or exhaustive insofar as reference of
any other disputes which although not specified in
the notice of invocation yet, nonetheless falls within
the scope of the arbitration agreement. The term
“particular dispute”, does not mean all disputes,
nor does it confine the jurisdiction of the Arbitral
Tribunal which is said to be one emanating from
the “arbitration agreement” to only those disputes
mentioned in the notice of invocation, as it would
tantamount to reading a restriction into the
jurisdiction of the Arbitral Tribunal to the bounds
of the notice of invocation instead of the arbitration
agreement. Thus, there is no inhibition under
Section 21 of the 1996 Act for raising any other
dispute or claim which is covered under the
arbitration agreement in the absence of any such
notice. Section 21 is procedural rather than
jurisdictional — it does not serve to create or
validate the arbitration agreement itself, nor is it a
precondition for the existence of the Tribunal's
jurisdiction, but merely operates as a statutory
mechanism to ascertain the date of initiation for
reckoning limitation .
*
165 . Section 23 sub-section (1) places an obligation
upon the claimant to state the facts supporting his
“claim”, the points at issue and the relief or remedy

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sought by way of its statement of claim, before the
Arbitral Tribunal. Notably, the legislature, in the
first part of the said sub-section, has deliberately
and consciously used the term “claim” as opposed
to “particular dispute” employed in Section 21 of
the 1996 Act. Although, it could be said that the
term “particular dispute” under Section 21 connotes
a larger umbrella within which the term “claim”
under Section 23 would be subsumed, thereby
suggesting that there is no scope to deviate from
what was sought to be referred by the notice of
invocation, we do not think so. We say so because,
the requirement for providing the points at issue
and the relief or remedy sought that exists in sub-
section (1) of Section 23 of the 1996 Act is patently
absent in Section 21 of the 1996 Act, which clearly
shows that the scope and object of these two
provisions are at variance to each other. Further,
this sub-section does not stipulate either explicitly
or implicitly, that such “claim” must be the same or
in tandem with the “particular dispute” in respect of
which the notice of invocation was issued under
Section 21 of the 1996 Act. This distinction in
terminology is neither incidental nor redundant;
rather, it reflects a conscious legislative design to
demarcate the procedural objective of Section 21
from the substantive function served by Section 23.
Unlike Section 23, Section 21 does not require any
articulation of the relief sought or the framing of
issues — its sole purpose is to indicate when
arbitration is deemed to have commenced, for the
limited purpose of computing the limitation period.
*
169 . Any restriction on the nature or content of
claims, counterclaims, or set-offs in arbitration
must be sourced solely from the express language
of Section 23 and not from Section 21. Section(s) 21
and 23 of the 1996 Act although overlap in some
aspects with each other in terms of the claims that
would ordinarily be referred to the Tribunal more
often than not tend to coincide, yet they are by no
means tethered together in such a manner that
neither of them can survive without one another.
The latter serves only a procedural function and
does not condition or limit the Tribunal's
jurisdiction to adjudicate claims that may not have
been specifically invoked at the threshold stage. To
read such a limitation into the statutory scheme

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would run contrary to both the text and the object
of the Act .”
(emphasis in original and supplied)
34. In “ Adavya Projects (P) Ltd. v. Vishal Structurals (P) Ltd.” , (2025)
9 SCC 686, the Hon’ble Apex Court has observed as under:
Notice invoking arbitration under Section 21 ACA
16. Section 21 falls under Part I, Chapter V of the
ACA, which deals with “Conduct of arbitral
proceedings”. The provision is extracted hereinbelow
for reference:
“ 21. Commencement of arbitral proceedings .—
Unless otherwise agreed by the parties, the
arbitral proceedings in respect of a particular
dispute commence on the date on which a
request for that dispute to be referred to
arbitration is received by the respondent.”
A plain reading of the provision shows that in the absence of
17.
an agreement between the parties, arbitral proceedings are
deemed to have commenced when the respondent receives a
request to refer disputes to arbitration. It is clear that Section 21
does not expressly mandate the claimant to send a notice
invoking arbitration to the respondents. However, the
provision necessarily mandates such notice as its receipt by
the respondent is required to commence arbitral
proceedings, unless the parties have mutually agreed on
another date/event for determining when the arbitral
proceedings have commenced .
18. This Court has expounded the purpose and object underlying
the notice referenced in Section 21 in several judgments, which
can be stated as follows.
19. First , the notice is necessary to determine whether claims
are within the period of limitation or are time-barred.
Section 43(1) ACA stipulates that the Limitation Act, 1963
shall apply to arbitrations as it applies to court proceedings.
Further, Section 43(2) provides that for the purpose of the
Limitation Act, an arbitration shall be deemed to have
commenced on the date referred to in Section 21. Hence, the
date of receipt of the Section 21 notice is used to determine
whether a dispute has been raised within the limitation
period as specified in the Schedule to the Limitation Act, as
held by this Court in Milkfood Ltd. v. GMC Ice Cream (P)
Ltd. [ Milkfood Ltd. v. GMC Ice Cream (P) Ltd. , (2004) 7 SCC
288, paras 26, 29 : (2004) 121 Comp Cas 581] and State of
Goa v. Praveen Enterprises [ State of Goa v. Praveen
Enterprises , (2012) 12 SCC 581, paras 16, 18] .

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20. Second , the date of receipt of notice is also relevant to
determine the applicable law to the arbitral proceedings. This can
be understood in two senses: ( i ) When the arbitral proceedings
are governed by a law that is different from the proper law of the
contract, the governing law applies only after the arbitral
proceedings have commenced, as held in Milkfood [ Milkfood
Ltd. v. GMC Ice Cream (P) Ltd. , (2004) 7 SCC 288, para 31 :
(2004) 121 Comp Cas 581] ; and ( ii ) Section 85(2)( a ) ACA
provides that the Arbitration Act, 1940 and the Foreign Awards
(Recognition and Enforcement) Act, 1961 will apply to arbitral
proceedings that commenced prior to the ACA coming into
force, unless otherwise agreed by the parties. Hence, the date of
invoking arbitration is necessary to determine which arbitration
law applies to the proceedings as per the decisions
in Milkfood [ Milkfood case , (2004) 7 SCC 288, paras 46, 49, 70 :
(2004) 121 Comp Cas 581] and Geo Miller & Co. (P)
Ltd. v. Rajasthan Vidyut Utpadan Nigam Ltd. [ Geo Miller & Co.
(P) Ltd. v. Rajasthan Vidyut Utpadan Nigam Ltd. , (2020) 14
SCC 643, para 10] Similarly, the applicability of amendments to
the ACA to arbitral proceedings is determined by reference to the
date on which such proceedings commenced as per Section 21. [
For example, the applicability of the Arbitration and Conciliation
(Amendment) Act, 2015 to arbitral proceedings depends on
whether the notice invoking arbitration was issued before or after
the amendment came into force. See BCCI v. Kochi Cricket (P)
Ltd. , (2018) 6 SCC 287, paras 37-39 : (2018) 3 SCC (Civ) 534.]
21. Third , an application before the High Court or this Court
under Section 11(6) ACA for appointment of arbitrator can
be filed only after the respondent has failed to act as per the
appointment procedure in the arbitration agreement. Hence,
invocation of arbitration as provided in Section 21, and the
subsequent failure of the respondent to appoint its arbitrator
or agree to the appointment of a sole arbitrator as provided
in Sections 11(4) and 11(5), are necessary for invoking the
court's jurisdiction under Section 11. This is as per the
decision of this Court in BSNL v. Nortel Networks (India) (P)
Ltd. [ BSNL v. Nortel Networks (India) (P) Ltd. , (2021) 5 SCC
738, para 15 : (2021) 3 SCC (Civ) 352] Further, the limitation
period within which the Section 11 application must be filed is
also calculated with reference to the date on which the
appointment procedure under the arbitration agreement fails.
[ BSNL case , (2021) 5 SCC 738, para 16 : (2021) 3 SCC (Civ)
352]
22. It is clear that by fixing the date of commencement of
arbitral proceedings by anchoring the same to a notice
invoking arbitration, Section 21 ACA fulfils various objects
that are time-related. The receipt of such notice is
determinative of the limitation period for substantive
disputes as well as the Section 11 application, and also the
law applicable to the arbitration proceedings .
35. Thus, it is evident that there are multifarious objectives served by a
notice under Section 21 of the Act, including the determination of the
period of limitation. Issue No. (ii) is answered accordingly.

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36. In view of the above, this petition is also allowed.
37. Mr. Justice V.C Koul, former Judge of this court is hereby appointed
as the Sole Arbitrator to adjudicate upon the disputes between the parties in
AA No. 31/2014 and AA No.41/2015
38. The parties shall be at liberty to submit their respective claims and
counterclaims before the learned Arbitrator. They shall also be at liberty to
raise all permissible issues, including the existence or validity of the
arbitration agreement, before the learned Arbitrator, who shall proceed in
the matter in accordance with law The fee of the learned Arbitrator shall
be governed by the provisions of Schedule IV to the Arbitration and
Conciliation Act, 1996.
39. The Registry shall send a copy of this order to the learned Arbitrator
for information and necessary action
(Rajnesh Oswal)
Judge
Jammu
11.09.2026
Madan Verma-Secy


Whether order is speaking? Yes/No.
Whether order is reportable ? Yes/No.

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