S.11 Arbitration Plea Not Maintainable Without Valid S.21 Notice; Email Suggesting Arbitrator Appointment Insufficient: Kerala High Court
The Kerala High Court dismissed an arbitration request filed under section 11(6) of the Arbitration and Conciliation Act, 1996 (Arbitration Act) holding that the applicants failed to send a valid notice under section 21 which is a pre-condition for invoking jurisdiction of the court for appointment of an arbitrator. Justice S. Manu held that email relied upon by the applicants...
The Kerala High Court dismissed an arbitration request filed under section 11(6) of the Arbitration and Conciliation Act, 1996 (Arbitration Act) holding that the applicants failed to send a valid notice under section 21 which is a pre-condition for invoking jurisdiction of the court for appointment of an arbitrator.
Justice S. Manu held that email relied upon by the applicants merely asking the respondents to suggest an arbitrator did not mention any specific dispute, any arbitration clause or even which partnership deed was being invoked.
The court ruled that such a vague request cannot mark the commencement of arbitration proceedings or meet the requirements of section 21 of the Arbitration Act.
The Applicants and respondents had entered into two partnership deeds. The Applicants alleged that the respondents continued the original business, failed to share profits after 2011, withheld accounts and secretly flolated several new firms with relatives to divert business. After disputes escalated, the applicants sent an email suggesting a name of an engineer as arbitrator.
There was no response from the respondents 1 and 2 and the only option left to the applicants was to initiate appropriate proceedings under the Arbitration Act. The respondents argued that since no valid notice under section 21 was issued, the present application was premature.
Relying on the Supreme Court's judgment in BSNL v. Nortel (2021), the court observed that no specific format for sending the notice under section 21 is prescribed but the notice must sufficiently indicate the dispute to be referred to arbitration and arbitration clause relied upon.The purpose of the notice, the court ruled, is to mark commencement of arbitration proceedings, crucial for limitation and to file application under section 11.
“Making a request under Section 21 of the Act is an essential pre-requisite under the scheme of the Act for approaching the Supreme Court or High Court as the case may be under Section 11(5) of the Act. Consequently, it is an important step in initiating the arbitral proceedings. In view of Section 21, the arbitral proceedings commence when the request is received by the respondent.”, the court observed.
The court noted that the email did not mention any dispute, any claim or any agreement containing arbitration clause and that there was no indication whether the applicants were invoking the 2015 partnership deed or the 2011 deed.
It further observed that no details were provided in the email to enable the other party to understand the nature of arbitration sought. Thus, the court said that “with no specific arbitration clause being pointed out and no particular dispute being mentioned in it, the date of receipt of Annexure-A3 cannot be considered as the point of time of commencement of arbitration with respect to any particular dispute between the parties. It failed in marking the point of commencement of arbitral proceedings. In the facts and circumstances of the instant case, lack of vital details in Annexure-A3 is fatal. Hence, I find that Annexure-A3, being too vague, cannot be considered as a proper and valid request under Section 21 of the Act.”
Reiterating that without section 21 notice, the court held that the application under section 11 cannot be entertained. Accordingly, the court dismissed the present application holding that since the mandatory requirement of sending a valid notice specifying the dispute to be referred to arbitration was not met in the present case, the application under section 11 was premature.
Case Title: Sajid Pasha And Ors. V.S.Abdunnasir. P And Ors.
Citation: 2025 LiveLaw (Ker) 817
Case Number:AR NO. 8 OF 2025
Judgment Date: 12/12/2025
For Petitioners: Smt.M.A.Vaheeda Babu Sri.Babu Karukapadath Sri.P.K.Abdul Rahiman Shri.Karukapadath Wazim Babu Smt.P.Lakshmi Smt.Aysha E.M. Shri.Abuasil A.K. Smt.Haniya Nafeeza V.S. Shri.Hashim K.M.
For Respondents: Sri.Vijay V. Paul Sri.Anil Sebastian Pulickel Shri.Ajay V.Anand Smt.Shilpa Soman Shri.Rojit Zachariah Smt.Angela Elsa John Shri.Safal P. Salim Shri.Hamed Abdulla Javahir Shri. Ak Muhammed Hashim Shri.Thwalhath V. Sri.Arun Thomas Smt.Veena Raveendran Smt.Karthika Maria Shri.Shinto Mathew Abraham Smt.Leah Rachel Ninan Shri.Mathew Nevin Thomas Shri.Karthik Rajagopal Shri.Kurian Antony Mathew Smt.Aparnna S. Shri.Noel Ninan Ninan Shri.Adeen Nazar Shri.Arun Joseph Mathew