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Intent Prevails: The Bombay HC's Stalwart Decision in Sunil Kumar Jindal Case


In the pronouncement of Sunil Kumar Jindal v. Union of India,[1] the Bombay High Court delved into the intricacies of arbitration agreements, emphasizing that the illegality in the appointment procedure does not render the entire arbitration agreement unenforceable. Justice Avinash G. Gharote, presiding over a single-judge bench, elucidated the nuanced stance that, even if the arbitrator's appointment procedure, guided by Section 12(5) and influenced by the Supreme Court's Perkins Eastman decision,[2] is deemed invalid, the overarching arbitration agreement remains legally valid.

The backdrop of the Case:

The legal backdrop unfolds in the years 2017-18, where the involved parties executed three agreements, all embedded with a dispute resolution clause. Notably, this clause dictated a unilateral arbitrator appointment process, with only the respondent having the prerogative to nominate the arbitrator. Subsequent disputes prompted the petitioner to invoke Section 11(6) of the Arbitration and Conciliation Act (A&C Act) seeking the court's intervention in appointing the arbitrator.

Petitioner's Standpoint:

The petitioner's contention centred on the procedural invalidity arising from Section 12(5) violation. However, the crux of their argument pivoted on the notion that this procedural flaw shouldn't taint the entirety of the arbitration process. Proposing a surgical approach, they urged the court to excise the illegal portion of the agreement, emphasizing the clear intent to arbitrate.

Respondent's Counterargument:

The respondent, in a bid to challenge the maintainability of the petition, raised an objection based on the arbitration clause's conditional nature. With the arbitrator's appointment now rendered invalid, the respondent asserted that the entire arbitration mechanism became null and void, hindering the court's authority to appoint an arbitrator.

Court's Observations:

The court meticulously observed that the arbitration clauses in all three agreements allowed unilateral arbitrator appointments. However, the introduction of Section 12(5) altered the landscape, a legal transformation validated by the Supreme Court's pronouncement in Perkins Eastman.

Distinguishing between the act of opting for arbitration and the specific choice of an arbitrator, the court emphasized their separability. When a portion of an arbitration clause faces invalidity, the court asserted its prerogative to excise the unlawful segment while preserving the remainder, provided the unequivocal intent to arbitrate persists.

The court underscored a crucial distinction – the illegality inherent in the appointment process should not cast a shadow on the parties' fundamental intention to resolve disputes through arbitration. Thus, respecting this underlying intention becomes paramount, even in the face of a partially invalidated appointment mechanism.

Court's Verdict:

In a verdict that aligns with the petitioner's plea, the Bombay High Court not only permitted the petition but also articulated a legal principle. When a segment of an arbitration clause succumbs to invalidity, the court holds the authority to surgically excise the unlawful part while upholding the remainder. Crucially, this prerogative is contingent upon the discernible intent of the parties to engage in the arbitration process.


This nuanced judicial stance reinforces the idea that the mere procedural illegality in appointing an arbitrator does not cast a pervasive shadow on the integrity of the broader arbitration agreement. The court's decision underscores the importance of upholding the foundational intent of the parties to arbitrate, ensuring that legal nuances do not unduly compromise the fundamental purpose of dispute resolution through arbitration.

In essence, the Bombay High Court's ruling emerges as a beacon of legal clarity, offering guidance on navigating the intricate terrain of arbitration agreements when faced with procedural hiccups. The decision resonates as a testament to the judiciary's commitment to preserving the essence of arbitration even in the face of legal intricacies.



[1] 2023, Latest Caselaw 4018 Bom

[2] Perkins Eastman Architects DPC and Ors. vs. HSCC (India) Ltd., (2020) 20 SCC 760

  • Bombay High Court's ruling in Sunil Kumar Jindal v. Union of India affirms the validity of arbitration agreements, even when the appointment procedure is deemed invalid.
  • The court distinguishes between procedural flaws and fundamental intent, asserting its authority to excise illegal portions while upholding the essence of arbitration agreements.
  • This professional analysis explores how the court's surgical approachsets a precedent for preserving arbitration integrity, emphasizing clarity amidst legal complexities.


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