Parties may by mutual consent modify the arbitral institution specified in an arbitration agreement.

The petitioner, Axis Finance Limited, a non-banking financial company, sanctioned a personal loan of ₹25,27,649 to respondent no. 1, with respondent no. 2 as co-borrower.

The loan was governed by a digitally executed Personal Loan Agreement dated 25 July 2023, and the amount was disbursed on 26 July 2023.

The respondents allegedly defaulted in March 2024, leaving ₹25,36,373 outstanding as of 5 September 2024.

The agreement contained an arbitration clause providing for reference of disputes to a sole arbitrator nominated by the lender and also contemplated arbitration through an Online Dispute Resolution platform, with Delhi/Mumbai as the juridical seat.

The petitioner invoked arbitration by notice dated 26 September 2024, but the respondents did not act on the notice.

The petitioner thereafter filed the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (“A&C Act”) seeking appointment of a sole arbitrator.

During the proceedings, the respondents agreed to appointment of an arbitrator but disputed arbitration through the ODR platform.

The petitioner proposed that the arbitration be conducted under the aegis of the Delhi International Arbitration Centre (“DIAC”), and the respondents did not oppose that proposal.

Whether, in view of the parties’ consent, the Court could appoint an independent sole arbitrator under Section 11(6) of the A&C Act to adjudicate disputes arising from the Loan Agreement.

Whether the arbitration agreement could be modified, by mutual consent recorded in the Court’s order, so that the proceedings would be conducted under the aegis and rules of DIAC instead of through the agreed ODR platform.

The Court applied Section 11(6) of the A&C Act, which empowers the Court to appoint an arbitrator where the agreed appointment procedure has not been followed.

It recognised that the institution under whose aegis arbitration is conducted and the manner of constituting the arbitral tribunal are matters of contractual agreement capable of variation by mutual consent.

Relying on *Shaf Broadcast (P) Ltd. v. Doordarshan*, (2019) 10 SCC 447, the Court held that consent recorded during the hearing can modify the arbitration agreement *pro tanto*.

The Court also directed that the appointed arbitrator furnish the disclosures required under Section 12 of the A&C Act.

The existence and enforceability of the arbitration agreement were undisputed, and the respondents had failed to act upon the petitioner’s invocation notice.

Although the original clause contemplated ODR-administered arbitration and permitted nomination of the sole arbitrator by the lender, the parties agreed during the proceedings to have the arbitration conducted under DIAC.

Applying the principle in *Shaf Broadcast*, the Court held that this consensual change validly modified only the arbitral forum, while leaving intact the agreed number of arbitrators, juridical seat, and governing law.

In light of the parties’ consensus and the absence of any impediment to arbitration, the Court found it appropriate to appoint an independent sole arbitrator.

With the parties’ consent, Ms. Aastha Chawla, Advocate, was appointed as the sole arbitrator.

The arbitration was directed to take place under the aegis of, and in accordance with the rules of, DIAC.

The arbitrator was required to furnish the disclosures mandated by Section 12 of the A&C Act, with liberty to the parties to approach the Court if any impediment arose.

All rights and contentions concerning claims and counterclaims were kept open for determination on merits, and the Court expressed no view on the merits of the disputes.