Where parties fail to agree, the court may appoint an independent sole arbitrator under Section 11.

The petitioner, a mall maintenance-services provider, entered into a Maintenance and Services Agreement (MSA) dated 10 April 2024 with the respondents, who were respectively the occupant and allottee/owner of premises in Pacific Mall, Ghaziabad.

The MSA required payment of maintenance and utility charges and provided for joint and several liability

Alleging unpaid charges of ₹4,53,360.58, the petitioner issued demands and a legal notice, then invoked the arbitration clause on 25 May 2026 and proposed three retired Additional District Judges as sole arbitrator.

The respondents did not respond within the 30-day period, and the petitioner filed this petition under Sections 11(5) and 11(6) of the Arbitration and Conciliation Act, 1996

1. Whether the MSA contained a valid arbitration agreement covering the disputes and the requirements for reference to arbitration had been met

2. Whether the Court should appoint an independent sole arbitrator after the respondents failed to concur in the proposed appointment

Sections 11(5) and 11(6) of the Arbitration and Conciliation Act, 1996 empower the Court to appoint an arbitrator where the parties’ appointment process has not resulted in constitution of the tribunal; the Court’s examination at this stage is limited, including consideration of whether an arbitration agreement exists.

Article 12 of the MSA required unresolved disputes arising out of or connected with the agreement to be finally decided by arbitration under the Act.

The Court also relied on SBI General Insurance Co. Ltd. v. Krish Spinning, In re Interplay Between Arbitration Agreements under Arbitration Act, 1996 & Stamp Act, 1899, Aslam Ismail Khan Deshmukh v. ASAP Fluids Private Limited, and Maharashtra State Electricity Distribution Co. Ltd. v. R Z Malpani concerning the Section 11 examination;

and on TRF Limited v. Energo Engineering Projects Ltd., Perkins Eastman Architects DPC v. HSCC (India) Ltd., and Bharat Broadband Network Limited v. United Telecoms Limited in support of appointing an independent sole arbitrator.

Article 12 expressly covered disputes arising out of or connected with the MSA, and the alleged unpaid maintenance and utility charges arose from contractual obligations under that agreement.

The parties’ attempt to resolve disputes through mutual discussion had failed, and the respondents did not concur in an arbitrator after the petitioner’s invocation notice.

Finding the arbitration agreement apparent on the face of the MSA and no impediment to reference, the Court considered appointment appropriate under its limited Section 11 review.

It appointed an independent arbitrator, subject to the required statutory disclosures.

The arbitration is to proceed under the aegis of the Delhi International Arbitration Centre (DIAC); the arbitrator must furnish the disclosures required by Section 12, and the parties’ claims, counterclaims, and other contentions remain open for determination on the merits.