The Delhi High Court appointed a sole arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, after finding no impediment to arbitration despite the respondent’s non-appearance. The petitioner had issued a notice under Section 21 invoking arbitration concerning disputes arising from a Work Order dated 12 February 2015 and a Contract Agreement dated 10 July 2015 for the Feroz Gandhi Unchahar Thermal Power Project. The Court directed the arbitrator to commence proceedings within two weeks.
Background & Facts
The Dispute
The dispute arises from a Work Order dated 12.02.2015 and a Contract Agreement dated 10.07.2015 executed between Zillion Infraprojects Pvt. Ltd. (petitioner) and NTPC BHEL Power Projects Pvt. Ltd. (respondent) for the Complete Erection & Commissioning Package of the Station Piping Package for the Feroz Gandhi Unchahar Thermal Power Project (Stage-IV, 1 x 500 MW). The contract contains an arbitration clause providing for resolution of disputes through arbitration.
Key Facts
- Work Order executed on 12.02.2015
- Contract Agreement executed on 10.07.2015
- Petitioner issued a notice under Section 21 of the Arbitration and Conciliation Act, 1996 on 22.06.2026 invoking arbitration
- An affidavit of service was filed by the petitioner; service was found sufficient
- No appearance was made by the respondent despite service
- The petition (ARB.P. 1388/2026) and exemption application (I.A. 21731/2026) were filed in 2026
- The matter was heard and judgment pronounced on 29.09.2026
Procedural History
- 22.06.2026: Petitioner served notice under Section 21 seeking arbitration
- Date of filing of ARB.P. 1388/2026: not specified on record, but pending before Court in 2026
- Date of filing of I.A. 21731/2026 (Exemption): not specified on record
- 29.09.2026: Judgment delivered by Hon’ble Mr. Justice Om Prakash Shukla
Relief Sought
The petitioner sought appointment of a sole arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 to adjudicate disputes arising from the Work Order and Contract Agreement, and prayed for consequential directions including the arbitrator’s entry of reference within two weeks, furnishing of disclosures under Section 12(2), and conduct of arbitration under the Delhi International Arbitration Centre (DIAC) rules.
The Legal Issue
The central question was whether, under Section 11(6) of the Arbitration and Conciliation Act, 1996, the High Court could appoint a sole arbitrator when a valid arbitration clause exists between the parties, the petitioner has issued a notice under Section 21, and the respondent fails to appear despite proper service, without delving into the merits of the underlying dispute.
Arguments Presented
For the Appellant/Petitioner
The petitioner contended that a valid arbitration clause existed in the contract, that it had complied with the precondition of issuing a notice under Section 21, and that the respondent’s non-appearance did not defeat the power to appoint an arbitrator. Reliance was placed on the principle that the court’s enquiry under Section 11(6) is confined to the prima facie existence of an arbitration agreement, citing SBI General Insurance Co. Ltd. v. Krish Spinning 2024 SCC OnLine SC 1754. It was urged that appointing a learned arbitrator would enable the parties to resolve their disputes expeditiously.
For the Respondent/State
No appearance was made by the respondent, and consequently no arguments were advanced on its behalf.
The Court's Analysis
The Court commenced by noting that while exercising jurisdiction under Section 11 of the Act, the scope of enquiry is confined to examining the prima facie existence of an arbitration agreement. It observed that there was no dispute regarding the existence of a valid arbitration clause between the parties. The Court then referred to the precedent in SBI General Insurance Co. Ltd. v. Krish Spinning 2024 SCC OnLine SC 1754, which reiterated that the power under Section 11(6) is limited to a prima facie inquiry and does not extend to going into the merits of the claim or defence.
"In the aforesaid circumstances, this Court finds no impediment in appointing a Sole Arbitrator."
Having found no impediment, the Court appointed Mr. Manu Beri, Advocate (Mob. No. 9810244108) as a learned Sole Arbitrator. It directed that the arbitrator shall enter upon the reference within two weeks from the date of the order. Furthermore, the arbitrator shall furnish the requisite disclosures under Section 12(2) of the Act within two weeks of entering the reference. The arbitration shall be conducted under the rules and aegis of the Delhi International Arbitration Centre (DIAC), with the venue fixed as Delhi. The arbitrator shall be entitled to fees as per the DIAC schedule of fees. The parties are at liberty to raise all pleas, including objections as to arbitrability and jurisdiction, before the learned Sole Arbitrator, who shall decide the same in accordance with law. It was clarified that the observations made in the order are solely for the purpose of deciding the present petition under Section 11(6) and shall not influence the arbitrator’s independent adjudication. Finally, the Registry was directed to send a receipt of the order to the arbitrator through all permissible modes, including email.
The Verdict
The petitioner succeeded. The Court appointed Mr. Manu Beri as the sole arbitrator, directed him to enter the reference within two weeks from the date of order (i.e., by approximately 13.10.2026), to furnish disclosures under Section 12(2) within two weeks of entering reference, to conduct arbitration under DIAC rules with venue at Delhi, and to be entitled to fees as per the DIAC schedule. The parties may raise pleas before the arbitrator, and the Court’s observations are limited to deciding the petition under Section 11(6). The Registry shall send a receipt of the order to the arbitrator. The present petition and the pending exemption application stand disposed of.
What This Means For Similar Cases
Section 11(6) Inquiry Is Limited to Prima Facie Existence
Practitioners must remember that the power under Section 11(6) is restricted to a prima facie inquiry into the existence of an arbitration agreement; the court does not examine the merits of the underlying dispute or the validity of the claim beyond that threshold.
- Check for a valid arbitration clause before invoking Section 11(6)
- Ensure compliance with the precondition of issuing a notice under Section 21
- Avoid seeking interim relief on merits at this stage
Non-Appearance Does Not Bar Arbitrator Appointment
A respondent’s failure to appear after proper service does not defeat the petitioner’s right to seek appointment of an arbitrator under Section 11(6).
- Service of notice under Section 21 must be proved by affidavit
- Non-appearance after service is insufficient to reject the appointment plea
- The court may proceed to appoint an arbitrator ex parte if no impediment exists
Directions on Disclosures and Arbitration Framework
The judgment underscores the importance of directing the appointed arbitrator to comply with statutory disclosure requirements and institutional rules.
- Seek a direction for disclosures under Section 12(2) within a reasonable time
- Specify the arbitral institution (e.g., DIAC) and venue to avoid delays
- Insist on a clear timeline for the arbitrator to enter reference and commence proceedings
