Vishal Biswas Sole Proprietor Of Vishal Infracon vs. Priyanti Construction
Original PDF →Facts
The petitioner, Vishal Biswas, a developer, entered into a Memorandum of Understanding (MoU) with the respondent, Priyanti Construction, on February 12, 2021, for the purchase of a residential flat for Rs. 51,45,000/-. The petitioner claims to have paid Rs. 35,16,190/-, including GST. The respondent allegedly failed to complete construction and hand over possession within the agreed period. The petitioner issued a notice demanding a refund with interest on July 11, 2024, which went unanswered. A mediation attempt also failed due to the respondent's non-participation. The petitioner then filed a Money Suit (Commercial) No. 19/2025, but later discovered an arbitration clause in the MoU. The suit was withdrawn on June 10, 2026. The petitioner invoked the arbitration clause by issuing a notice under Section 21 of the Arbitration and Conciliation Act, 1996, proposing an arbitrator. The respondent declined the proposed arbitrator, leading to a failure to agree on the Arbitral Tribunal's constitution. The petitioner then filed the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996.
Held
The Court held that its jurisdiction under Section 11(6) of the Arbitration and Conciliation Act, 1996, is confined to a prima facie examination of the existence and validity of the arbitration agreement, as mandated by Section 11(6A). The Court found that Clause 27 of the MoU clearly contains an arbitration agreement, and its existence was admitted by the respondent. The disputes raised by the petitioner, arising out of the MoU, were found to be referable to the arbitration clause. Therefore, the requirements under Section 11(6) were satisfied. The Court appointed Mr. Ayan Banerjee, Advocate, as the sole Arbitrator to adjudicate the disputes. The Arbitrator is to enter upon the reference after making disclosures under Section 12(1) and subject to Section 12(5). Remuneration is to be fixed as per the Fourth Schedule or mutual agreement. All questions relating to arbitrability, admissibility of claims, limitation, jurisdiction, and other issues are left open to be decided by the Arbitrator. The petition was disposed of with these directions.
Key Issues
1. Whether the Court, in an application under Section 11(6) of the Arbitration and Conciliation Act, 1996, should confine its examination to the existence of a valid arbitration agreement, as stipulated by Section 11(6A)? Petitioner's arguments: The petitioner contended that the MoU dated February 12, 2021, contains a valid arbitration agreement in Clause 27, which covers disputes concerning the construction, interpretation, or implementation of the MoU, or determination of any liability. The petitioner argued that the disputes arising from the respondent's alleged failure to complete construction and hand over possession, and the subsequent demand for refund, clearly fall within the scope of this arbitration clause. The petitioner relied on the principle that at the Section 11 stage, the court's role is limited to a prima facie examination of the arbitration agreement's existence and validity. Revenue/State's arguments: The respondent admitted the existence of the arbitration agreement in its reply dated July 9, 2026. The judgment does not record any further arguments from the respondent.
Sections Cited
Section 11(6), Section 11(6A), Section 12(1), Section 12(5), Section 21, Fourth Schedule
AI-generated summary — verify with the full judgment below
OCD-11 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA COMMERCIAL DIVISION ORIGINAL SIDE
AP-COM/675/2026 BEFORE: The Hon’ble JUSTICE GAURANG KANTH Date : 21st August, 2026. Appearance: MrSanjib Kr. Mal, Adv. Mr. Pushan Majumdar, Adv. …for the petitioner
The Court: The affidavit of service is taken on record. The petitioner has preferred the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking appointment of a sole Arbitrator to adjudicate the disputes and differences arising out of the Memorandum of Understanding dated 12th February, 2021. The petitioner, a developer, entered into the said MoU with the respondent for the purchase of a residential flat being Flat No.SA-8 on the 4th Floor of the proposed building at Lake Town, Kolkata for a total consideration of Rs.51,45,000/-. The petitioner claims to have paid a sum of Rs.35,16,190/- towards the agreed consideration, including GST. It is the petitioner’s case that despite receipt of the substantial consideration, the respondent failed to complete the construction and hand over the possession within the agreed period, including the extended period.
2 The petitioner consequently demanded refund of the amount paid, together with interest, by notice dated 11th July, 2024. The said notice was not responded to. Thereafter, a mediation process was also initiated by the petitoner by filing a Form-I- Mediation Application Form as envisaged under the Commercial Courts Act, 2015 before the District Legal Services Authority, North 24 Parganas, Barasat, which ended in a non-starter report dated 30th January, 2025 owing to the respondent’s failure to participate. The petitioner subsequently instituted Money Suit (Commercial) No.19/2025 before the Commercial Court at Rajarhat for recovery of the said amount. During the proceedings, the petitioner discovered the arbitration clause contained in Clause 27 of the MoU, which, according to the petitioner, had inadvertently not been noticed earlier. The suit was thereafter withdrawn and came to be disposed of as withdrawn by order dated 10th June, 2026. Following withdrawal of the suit, the petitioner invoked the arbitration clause as provided in the MoU by issuing a notice under Section 21 of the Act dated 17th June, 2026 and proposed appointment of a sole Arbitrator to adjudicate the disputes between the parties. The respondent, by the reply dated 9th July, 2026, declined to accept the proposed appointment of the named Arbitrator. The parties have consequently failed to agree upon the constitution of the Arbitral Tribunal. This Court notes that Clause 27 of the MoU contains an arbitration agreement providing for reference of disputes and differences between the parties concerning the construction, interpretation or implementation of the MoU, or determination of any liability, to arbitration. The existence of the
3 arbitration agreement is not in dispute since the same has been admitted by the respondent in its reply dated 9th July, 2026. The disputes raised by the petitioner arise out of the MoU and are clearly referable to the arbitration clause. It is now well settled principle of law that the juri iction of the court under section 11 of the Arbitration and Conciliation Act, 1996 is confined to a prima facie examination of the existence and validity of the arbitration agreement. As per Section 11(6A) of the Act “the Supreme Court or as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall notwithstanding any judgment decree or order of any court, confine to the examination of the existence of an arbitration agreement.”
Accordingly, at the stage of exercising juri iction under Section 11 of this Act, this Court is only required to examine the existence of a valid arbitration agreement containing an arbitration clause. In view of the same, this Court is, therefore, satisfied that the requirements under Section 11(6) of the Act stand fulfilled and that the disputes between the parties are fit to be referred to arbitration. Accordingly, Mr. Ayan Banerjee, Advocate (Mobile No.9830916210) is appointed as the learned sole Arbitrator to adjudicate the disputes and difference arising out of the MoU dated 12th February, 2021. 4 The learned Sole Arbitrator shall enter upon the reference after making the disclosure in terms of Section 12(1) of the Act and subject to the provisions of Section 12(5) thereof. The learned sole Arbitrator shall be entitled to fix the remuneration in accordance with the Fourth Schedule of the Act or as may be mutually agreed between the parties. A copy of this order shall be communicated by the petitioner to the learned sole Arbitrator for necessary action. It is clarified that all questions relating to the arbitrability of the disputes, the admissibility of the claims, limitation, juri iction, and all other issues are left open to be urged before the learned Sole Arbitrator, who shall decide the same in accordance with law. With the aforesaid directions, the present petition stands disposed of.
(GAURANG KANTH, J.)
bp./R.D.Barua
Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.