The appointment stage of an arbitration is meant to be the shortest hearing in the lifecycle of the dispute. Section 11(6A) of the Arbitration and Conciliation Act, 1996 confines the court to examining the existence of the arbitration agreement, and the modern case law adds only a prima facie filter against plainly non-existent or invalid clauses. The Calcutta High Court’s order in Saurabh Mishra v. Devshankha Mukherjee — a licence fee recovery arising out of a commercial space in New Town — is a textbook run of that discipline from notice to appointment.
From default to deadlock
The underlying commercial story is unremarkable, which is what makes the procedural path instructive. A licensee of a mall unit stopped paying the agreed Rs 43,900 monthly fee from October 2022, communicated its inability to continue, and vacated in January 2023. The licensor, instead of filing a money suit, followed the contract: an arbitration notice under Section 21 on 25 September 2025, proposing an arbitrator. The licensee received it on 27 September 2025 and declined the proposal. With the agreed mechanism exhausted, the licensor applied to the High Court under Sections 11(6) and 11(6A).
The gatekeeping standard
Justice Gaurang Kanth’s reasoning occupies a few paragraphs because the law requires no more. The Court recorded that its jurisdiction under Section 11 “is confined to a prima facie examination of the existence and validity of the arbitration agreement.” The Leave and Licence Agreement existed; its arbitration clause existed; the Section 21 notice had been duly served and the appointment procedure had failed. Nothing more needed deciding. Objections about whether the claims are within limitation, how much is actually due after adjusting the security deposit, or whether the early vacation was justified are all questions the arbitral tribunal will decide for itself.
| Step | What happened |
|---|---|
| Agreement | Leave and Licence dated 24 September 2021 — 3 years, Rs 43,900 + GST, 5% escalation |
| Default | Fees unpaid; inability communicated from October 2022; premises vacated January 2023 |
| Section 21 notice | Issued 25 September 2025; received 27 September 2025; proposed arbitrator declined |
| Section 11 order | Sole arbitrator appointed, subject to Section 12(1) disclosures and Section 12(5) eligibility |
Three practice notes
First, the Section 21 notice is not a formality: it fixes the commencement of the arbitration, matters for limitation, and is the precondition for maintaining a Section 11 application after the other side’s refusal. Landlords and licensors who skip it find their court applications returned to the starting line. Second, leave and licence disputes — unlike tenancy disputes governed by rent control statutes — are ordinarily arbitrable, which is precisely why commercial licensing in malls and office complexes routinely routes through arbitration clauses. Third, every court appointment now travels with the Section 12 integrity apparatus: the appointee’s written disclosures of independence, and the automatic ineligibilities of the Seventh Schedule, apply regardless of who proposes the name.
Practice pointer: in Delhi, the same discipline governs Section 11 petitions before the High Court, and fee disputes under commercial licences are regularly referred with a single effective hearing. The decisive documents are three: the agreement with its clause, the Section 21 notice with proof of service, and the reply or silence that establishes failure of the agreed procedure.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
What was the dispute about?
The petitioner owned an 828 sq ft commercial space at a New Town mall and licensed it to the respondent under a Leave and Licence Agreement dated 24 September 2021 — three years at Rs 43,900 per month plus GST, with five per cent annual escalation. The respondent communicated inability to pay from October 2022 and vacated in January 2023, leaving licence fees unpaid.
How did the matter reach Section 11?
The agreement contained an arbitration clause. The petitioner issued a notice invoking arbitration under Section 21 on 25 September 2025, received on 27 September 2025; the respondent declined to agree to the proposed arbitrator. That failure of the agreed appointment procedure opened the door to a Section 11(6) application to the High Court.
What is the court allowed to examine at this stage?
Very little. The Court reiterated that jurisdiction under Section 11 is confined to a prima facie examination of the existence and validity of the arbitration agreement. Questions of limitation on the claims, quantum, set-off and the merits of the default all belong to the arbitral tribunal under Section 16's competence-competence principle.
What did the Court order?
It appointed Ms Anamika Pandey, Advocate, as sole arbitrator to adjudicate the disputes, subject to the mandatory disclosures under Section 12(1) and the ineligibility grounds of Section 12(5) read with the Seventh Schedule — the standard integrity checks that accompany every judicial appointment.