Unsigned invoices can establish a prima facie arbitration agreement when parties rely on their terms.

The petitioner sought appointment of an arbitrator in a dispute arising from transactions documented by invoices dated 20 May 2017 and 15 June 2017.

The respondents objected that the invoices were unsigned and had not been accepted.

In earlier recovery proceedings, the petitioner had also argued that the unsigned invoices did not create a binding arbitration agreement.

The Trial Court referred the dispute to arbitration after noting that the respondent had relied on the invoices’ arbitration clause to oppose the suit; the referral was challenged before the High Court and the matter later reached the Supreme Court.

In its counter-affidavit before the Supreme Court, the respondent accepted that the invoices and a purchase order dated 18 May 2017 contained arbitration clauses.

1. Whether the invoices and related purchase order prima facie established an arbitration agreement despite the objection that the invoices were unsigned or unaccepted

2. Whether the Court should appoint a sole arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996

Under Section 11 of the Arbitration and Conciliation Act, 1996, the court’s inquiry at the appointment stage is confined to determining the prima facie existence of an arbitration agreement; appointment should be declined only where the non-existence of a valid agreement is demonstrated (Aslam Ismail Khan Deshmukh v. ASAP Fluids (P) Ltd., (2025) 1 SCC 502; SBI General Insurance Co. Ltd. v. Krish Spg., (2024) 12 SCC 1; Interplay Between Arbitration Agreements under Arbitration Act, 1996 & Stamp Act, 1899, In re, (2024) 6 SCC 1).

An arbitration agreement may take any form, provided the parties have agreed to refer disputes to arbitration (Rukmanibai Gupta v. Collector, Jabalpur, (1980) 4 SCC 556; Concrete Additives and Chemicals Pvt. Ltd. v. S.N. Engineering Services Pvt. Ltd., order dated 28 November 2023, Civil Appeal No. 7858/2023).

A party cannot approbate and reprobate by taking inconsistent positions concerning the same arbitration clause.

The arbitrator must furnish the disclosure required under Section 12(2) of the Act.

The Court considered the respondent’s reliance on the invoices to resist the recovery suit, and its subsequent acceptance before the Supreme Court that the invoices and purchase order contained arbitration clauses, inconsistent with its present objection to arbitration.

It further found that both invoices expressly provided for disputes to be referred to arbitration in Delhi.

Applying the limited prima facie inquiry under Section 11, the Court concluded that the record disclosed an arbitration agreement and that the unsigned-invoice objection did not prevent appointment at this stage.

The arbitration is to be conducted under the rules and aegis of the Delhi International Arbitration Centre, with the arbitrator’s fees as per its schedule.

The arbitrator is to enter upon the reference within four weeks and furnish the requisite Section 12(2) disclosure within three weeks of entering the reference.

The parties remain at liberty to raise objections, including as to arbitrability and jurisdiction, before the arbitrator; the Court’s observations are confined to the Section 11(6) petition.