K S MULTI FACILITY SERVICES PRIVATE LIMITED THROUGH ITS AUTHORIZED SIGNATORY ANUJ KUMAR vs JHARKHAND STATE BEVERAGE CORPORATION THROUGH ITS MANAGING DIRECTOR

( 2026:JHHC:13933 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Arbitration Application No. 1 of 2026

K.S. Multi Facility Services Private Limited, (a Company registered under
Provisions of the Companies Act, 1956/2013), having its Registered Office at
Gali No. 12 Gandhi Nagar, P.O and P.S. Gandhi Nagar, Gurugram, Haryana
122001 through its authorized signatory namely, Anuj Kumar, aged about 24
Years, son of Shankar Sao, Aadhar no. 9366 9470 5294 resident of Kirigarh
Saw Mohalla, Kirigara P.O. & P.S. Kirigara, District Ramgarh, Jharkhand –
829118. …. .... Petitioner
Versus
Jharkhand State Beverages Corporation, through its Managing Director,
having its office at Utpad Bhavan, Near new Police Centre, Kanke, P.O. &
P.S.- Kanke, District Ranchi, Jharkhand-834006.
…. …. Respondent
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CORAM : HON’BLE THE CHIEF JUSTICE
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For the Petitioner : Mr Sumeet Gadodia, Advocate
Mr Prakhar Harit, Advocate
Mr Anish Lal, Advocate
For the Respondent : Mr Raunak Sahay, Advocate
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04 /Dated: 08.05.2026
I.A. No. 6474 of 2026
1. This I.A. is an abuse of the process of the Court.
2. On the ground that the Managing Director is not available or is
transferred, this is the second time that adjournment is applied for, even
though, earlier adjournment was granted, subject to payment of cost of Rs.
10,000/-.
3. Surprisingly, even the costs have not been paid. The transfer of the
Managing Director can hardly be a ground for the respondent-Corporation not
to pay the cost of Rs. 10,000/-. This is a matter where the respondent is bent
upon delaying the matter. The reasons given in the I.A. are far from
convincing.
4. Learned counsel for the respondent states that the costs of Rs. 10,000/-
will be paid by 2.30 this afternoon. This statement is accepted.
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5. Another reason for the adjournment is that a counsel has been engaged.
Apart from the fact that this cannot be a good ground for adjournment, it is
necessary to note that in the order dated 10.04.2026, the learned Advocate
General, who appeared on behalf of the respondent had made a statement that
a reply will be filed by 22.04.2026 without seeking any further extension.
Even at that time, the application for adjournment had not inspired much
confidence. After recording this fact, adjournment was reluctantly granted,
since the statement was made that costs of Rs. 10,000/- would be paid before
the next date.
6. Today, none of the statements made by the learned counsel on behalf
of the respondent have been complied with.
7. Mr. Gadodia, learned counsel for the applicant states that on one hand,
adjustments are being applied for, and on the other hand, the respondent is
acting adverse to the interests of the applicant. He further pointed out that the
applicant had instituted a writ petition and the same was opposed on the
ground of existence of an arbitration clause. Now that the applicant is seeking
appointment of an Arbitrator, the matter is being unduly delayed.
8. For all the above reasons, this I.A. is dismissed.
Arbitration Application No. 1 of 2026
9. Heard the learned counsel for the parties.
10. This is an application seeking appointment of Arbitrator by invoking
the provisions of Section 11 of the Arbitration and Conciliation Act, 1996
(said Act).
11. On two occasions, adjournments were applied for by the respondent for
filing a reply. On the first occasion, the adjournment was granted, subject to
certain conditions which the respondent have failed to comply. Without
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complying with those conditions, today, once again, an I.A. was filed seeking
adjournment. The said I.A. has since been dismissed by passing a speaking
order.
12. The disputes have arisen between the parties. The applicant initially
instituted W.P.C. (Filing) No. 10671 of 2025 in this Court seeking redressal.
13. Mr. Gadodia submitted that the respondent herein objected to the
maintainability of the petition by pointing out that there is an arbitration clause
in the agreement between the parties and, therefore, the applicant should be
relegated to avail of the alternate remedy available to it under the law.
14. Therefore, the applicant, withdrew the writ petition with liberty to avail
the remedy available to it under the law. The withdrawal was permitted with
the liberty as prayed for. This is evident from the order dated 19.09.2025,
disposing of W.P.(C) (Filing) No. 10671 of 2025.
15. After the disposal of the writ petition, the applicant, through its lawyer’s
notice dated 04.10.2025, invoked the arbitration clause 14 in the agreement
dated 19.06.2024 and sought the appointment of an Arbitrator. Mr Gadodia
submitted that the respondent, despite receipt of the legal notice dated
04.10.2025, neither consented to the appointment of any Arbitrator nor
bothered even to file a reply to the notice dated 04.10.2025, by which the
arbitration clause was invoked.
16. Clause 14 of the Agreement dated 19.06.2024 between the parties
provides for the resolution of disputes through arbitration. Letter of Intent
dated 30.03.2025 also extends and applies this agreement to Zone-10 in
addition to Zone-3 and Zone-6, out of which the present disputes have arisen
in the context of Zone Nos. 3, 6 and 10.
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17. Accordingly, the existence of an arbitration agreement between the
parties is not in dispute. Based upon such existence itself, objections were
raised to the maintainability of the writ petition filed by the applicant herein.
This petition was then withdrawn with liberty to avail the alternate remedy.
18. If the parties have agreed to resolve their disputes through arbitration,
the arbitration proceedings must commence and conclude expeditiously. If
frivolous adjournments are applied for, without even indicating the nature of
the defence, then this objective would be completely frustrated.
19. Learned counsel for the respondent was given an opportunity to argue
the matter. However, he stated that he has no instructions to argue on the
merits in the absence of a reply. At least two opportunities were granted to file
a reply. The appointment of an arbitrator cannot now be delayed or resisted
on such grounds.
20. As it is, the scope of proceedings under Section 11 (6) of the said Act
is quite limited to examining the existence of an arbitration agreement
between the parties. Despite the appointment of an arbitrator, if the respondent
has any serious objections, those objections are never preempted by this
Court’s appointment of an arbitrator. Considering this position, there is no
point in indulging the respondent any further in this matter.
21. In the Interplay Between Arbitration Agreements under
Arbitration and Conciliation Act, 1996 and Stamp Act, 1899, In RE,
(2024) 6 SCC 1 , the Hon’ble Supreme Court has observed the following: -
“163. We are of the opinion that the above premise of
the Court in Vidya Drolia is erroneous because the
omission of Section 11(6-A) has not been notified and,
therefore, the said provision continues to remain in full
force. Since Section 11(6-A) continues to remain in force,
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pending the notification of the Central Government, it is
incumbent upon this Court to give true effect to the
legislative intent.
164. The 2015 Amendment Act has laid down different
parameters for judicial review under Section 8 and
Section 11. Where Section 8 requires the Referral Court
to look into the prima facie existence of a valid
arbitration agreement, Section 11 confines the Court's
jurisdiction to the examination of the existence of an
arbitration agreement. Although the object and purpose
behind both Sections 8 and 11 is to compel parties to
abide by their contractual understanding, the scope of
power of the Referral Courts under the said provisions is
intended to be different. The same is also evident from
the fact that Section 37 of the Arbitration Act allows an
appeal from the order of an Arbitral Tribunal refusing to
refer the parties to arbitration under Section 8, but not
from Section 11. Thus, the 2015 Amendment Act has
legislatively overruled the dictum of Patel Engg where it
was held that Section 8 and Section 11 are
complementary in nature. Accordingly, the two
provisions cannot be read as laying down a similar
standard.
165. The legislature confined the scope of reference
under Section 11(6-A) to the examination of the existence
of an arbitration agreement. The use of the term
"examination" in itself connotes that the scope of the
power is limited to a prima facie determination, Since
the Arbitration Act is a self-contained code, the
requirement of "existence" of an arbitration agreement
draws effect from Section 7 of the Arbitration Act. In
Duro Felguera, this Court held that the Referral Courts
only need to consider one aspect to determine the
existence of an arbitration agreement whether the
underlying contract contains an arbitration agreement
which provides for arbitration pertaining to the disputes
which have arisen between the parties to the agreement.
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Therefore, the scope of examination under Section
11(6-A) should be confined to the existence of an
arbitration agreement on the basis of Section 7.
Similarly, the validity of an arbitration agreement, in
view of Section 7, should be restricted to the
requirement of formal validity such as the requirement
that the agreement be in writing. This interpretation
also gives true effect to the doctrine of competence-
competence by leaving the issue of substantive existence
and validity of an arbitration agreement to be decided by
Arbitral Tribunal under Section 16. We accordingly
clarify the position of law laid down in Vidya Drolia in
the context of Section 8 and Section 11 of the Arbitration
Act.
166. The burden of proving the existence of arbitration
agreement generally lies on the party seeking to rely on
such agreement. In jurisdictions such as India, which
accept the doctrine of competence-competence, only
prima facie proof of the existence of an arbitration
agreement must be adduced before the Referral Court.
The Referral Court is not the appropriate forum to
conduct a mini-trial by allowing the parties to adduce
the evidence in regard to the existence or validity of an
arbitration agreement. The determination of the
existence and validity of an arbitration agreement on
the basis of evidence ought to be left to the Arbitral
Tribunal. This position of law can also be gauged from
the plain language of the statute.
167. Section 11(6-A) uses the expression "examination
of the existence of an arbitration agreement". The
purport of using the word "examination" connotes that
the legislature intends that the Referral Court has to
inspect or scrutinise the dealings between the parties for
the existence of an arbitration agreement. Moreover, the
expression "examination" does not connote or imply a
laborious or contested inquiry. On the other hand,
Section 16 provides that the Arbitral Tribunal can
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"rule" on its jurisdiction, including the existence and
validity of an arbitration agreement. A "ruling"
connotes adjudication of disputes after admitting
evidence from the parties. Therefore, it is evident that
the Referral Court is only required to examine the
existence of arbitration agreements, whereas the
Arbitral Tribunal ought to rule on its jurisdiction,
including the issues pertaining to the existence and
validity of an arbitration agreement. A similar view was
adopted by this Court in Shin-Etsu Chemical Co. Ltd. v.
Aksh Optifibre Ltd.
168. In Shin-Etsu, this Court was called upon to
determine the nature of adjudication contemplated by
unamended Section 45 of the Arbitration Act when the
objection with regards to the arbitration agreement
being "null and void, inoperative or incapable of being
performed" is raised before a judicial authority. Writing
for the majority, B.N. Srikrishna. J. held that Section 45
does not require the judicial authority to give a final
determination. The Court observed that: (SCC p. 267,
para 74)
"74. There are distinct advantages in veering to the
view that Section 45 does not require a final
determinative finding by the Court. First, under the
Rules of Arbitration of the International Chamber
of Commerce (as in force with effect from 1-1-
1998), as in the present case, invariably the
Arbitral Tribunal is vested with the power to rule
upon its own jurisdiction. Even if the Court takes
the view that the arbitral agreement is not vitiated
or that it is not invalid, inoperative or
unenforceable, based upon purely a prima facie
view, nothing prevents the arbitrator from trying
the issue fully and rendering a final decision
thereupon. If the arbitrator finds the agreement
valid, there is no problem as the arbitration will
proceed and the award will be made. However, if
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the arbitrator finds the agreement invalid,
inoperative or void, this means that the party who
wanted to proceed for arbitration was given an
opportunity of proceeding to arbitration, and the
arbitrator after fully trying the issue has found that
there is no scope for arbitration. Since the
arbitrator's finding would not be an enforceable
award, there is no need to take recourse to the
judicial intercession available under Section
48(1)(a) of the Act."
169. When the Referral Court renders a prima facie
opinion, neither the Arbitral Tribunal, nor the Court
enforcing the arbitral award will be bound by such a
prima facie view. If a prima facie view as to the
existence of an arbitration agreement is taken by the
Referral Court, it still allows the Arbitral Tribunal to
examine the issue in depth. Such a legal approach will
help the Referral Court in weeding out prima facie non-
existent arbitration agreements. It will also protect the
jurisdictional competence of the Arbitral Tribunals to
decide on issues pertaining to the existence and validity
of an arbitration agreement.”
22. Section 11(6-A) of the Act remains effective, and the Court must
uphold the legislative intent. Section 11(6-A) inter alia provides that the High
Court, while considering any application under Section 11(6), shall,
notwithstanding any judgment, decree or order of any Court, confine itself to
the examination of the existence of an agreement.
23. Further, the Hon’ble Supreme Court has explained that the use of the
term "examination" connotes that the scope of the power is limited to a prima
facie determination. The Referral Courts need only consider one aspect to
determine the existence of an arbitration agreement: whether the underlying
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contract contains an arbitration clause that provides for the arbitration of the
disputes that have arisen between the parties to the agreement.
24. Therefore, the scope of examination under Section 11(6-A) should be
confined to the existence of an arbitration agreement based on Section 7.
Similarly, the validity of an arbitration agreement, under Section 7, should be
limited to the formal requirements, such as the requirement that the agreement
be in writing. The court held that such an interpretation also gives true effect
to the doctrine of competence-competence by leaving the issue of the
substantive existence and validity of an arbitration agreement to be decided
by the Arbitral Tribunal under Section 16.
25. The Hon’ble Supreme Court further held that although the burden of
proving the existence of the arbitration agreement generally lies with the party
seeking to rely on it, in jurisdictions such as India, which accept the doctrine
of competence-competence, only prima facie proof of its existence need be
adduced before the Referral Court. The Referral Court is not the appropriate
forum for a mini-trial to determine the existence or validity of the arbitration
agreement. The determination of the existence and validity of an arbitration
agreement on the basis of evidence ought to be left to the Arbitral Tribunal.
26. The Hon’ble Supreme Court observed that Section 11(6-A) uses the
expression "examination of the existence of an arbitration agreement". The
use of the word "examination" indicates that the legislature intended the
Referral Court to inspect or scrutinise the parties’ dealings to determine
whether an arbitration agreement exists. Moreover, the expression
"examination" does not connote or imply a labourious or contested inquiry.
By contrast, Section 16 provides that the Arbitral Tribunal can "rule" on its
jurisdiction, including the existence and validity of an arbitration agreement.
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A "ruling" connotes the adjudication of disputes after the admission of
evidence from the parties. Therefore, it is evident that the Referral Court is
only required to examine the existence of an arbitration agreement, whereas
the Arbitral Tribunal ought to rule on its jurisdiction, including the issues
pertaining to the existence and validity of an arbitration agreement.
27. The Hon’ble Supreme Court further clarified that when the Referral
Court renders a prima facie opinion, neither the Arbitral Tribunal, nor the
Court enforcing the arbitral award will be bound by such a prima facie view.
If the Referral Court takes a prima facie view of the existence of an arbitration
agreement, it still allows the Arbitral Tribunal to examine the issue in depth.
Such a legal approach will help the Referral Court in weeding out prima facie
non-existent arbitration agreements. It will also protect the jurisdictional
competence of the Arbitral Tribunals to decide on issues pertaining to the
existence and validity of an arbitration agreement.
28. Thus, considering the limited scope of these proceedings, I am satisfied
that this application should be allowed and that the parties must be referred to
arbitration. However, all contentions of the parties, including the defences by
and on behalf of the respondent, are kept open with liberty to the respondent
to raise the same before the Arbitrator. The mere appointment of an arbitrator
should not be construed as either a waiver of such objections or as an
indication that this Court overruled such objections.
29. Accordingly, Hon’ble Justice N.N. Tiwari, former Judge of this Court,
residing at 673F, Jatin Chandra Bose Road, Burdwan Compound, Lalpur,
Ranchi-834001, is appointed as the Arbitrator to arbitrate the dispute between
the parties. This is because the learned counsel for the respondent states that
in one of the disputes between the parties, Hon’ble Justice N.N. Tiwari is
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already appointed as an Arbitrator. Even if this is not correct, there is no
difficulty in appointing Hon’ble Justice N.N. Tiwari as an arbitrator in this
matter.
30. Learned Arbitrator is requested to issue the necessary declaration in
th th
terms of section 12(2) read with 5 and 6 Schedule of the said Act before
entering upon the arbitration proceedings. Learned Arbitrator’s fees shall be
th
in accordance with the 4 Schedule of the said Act. Such fees and arbitration
expenses shall be equally borne by both parties.
31. Learned Arbitrator would endeavor to conclude the arbitration
proceedings as expeditiously as possible, having regard to the mandate under
Section 29 (A) of the said Act.
32. All contentions of the parties are left open for the learned Arbitrator to
decide.
33. The Registry is directed to intimate the learned Arbitrator so appointed
about this order within fifteen days from the uploading of this order. The
parties are also at liberty to place this matter before the learned Arbitrator.
34. This arbitration application is disposed of in the above terms. Pending
I.A, if any, will not survive and is disposed of. No order for costs.

(M.S. Sonak, C.J.)
May 08, 2026
Ranjeet / R.Kr.
NAFR

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