OCD-18 ORDER SHEET In The High Court at Calcutta Commercial Division Original Side AP-COM/661/2026 SRI RAHUL GHOSH AND ANR. -VS- SMT. SANDHA SAHA AND ORS. BEFORE: The Hon’ble JUSTICE GAURANG KANTH Date : 31st August, 2026. Appearance: Mr. Krishoendu Sarkar, Adv. Ms. Meghla Das, Adv. Ms. Asha Kumari Manjhi , Adv. …for the petitioners Mr. Anirban Majumder, Adv. Ms. Sweety Jha , Adv. …for the respondent nos.1,2 & 3 The Court :- Affidavit-of-Service is taken on record. The petitioners have preferred the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of an Arbitrator to adjudicate the disputes and differences that have arisen between the parties out of the Memorandum of Understanding (MOU) dated 20th February, 2024, the Registered Deed of Reconstitution of Partnership dated 20th February, 2024 and the Registered Power of Attorney dated 20th February, 2024 and subsequent Memorandum of Understanding dated 28th January, 2025 concerning the business carried on under the name and style of M/s. G. C. Shaw and Co., Foreign Liquor Off Shop situated at 82, B.B. Ganguly Street, Kolkata-700012. Learned Counsel for the petitioners submits that pursuant to the aforesaid agreements the petitioners were inducted into the business upon 2 payment of substantial consideration and undertook its management and liabilities. It is further stated that the petitioners had paid approximately 3.95 crore and have been in possession and control of the business since February 20, 2024. Disputes and differences had arisen between the parties when the respondents resiled from their obligations and threatened to interfere with the petitioners’ possession and management of the business. Learned Counsel for the petitioners states that in terms of the arbitration agreement, she had issued a notice dated 21st May, 2026 under Section 21 of the Act invoking the arbitral proceedings in terms of the arbitral clause contained in the said agreement. The petitioners further states that the said notice was duly replied to by the respondents vide letter dated 1st June, 2026 wherein the respondent had not disputed the existence of the agreement entered between the parties but had suggested the name of Mr. Shamit Sanyal, Advocate, High Court at Calcutta as the sole Arbitrator to adjudicate the disputes and differences that have arisen between the parties. Learned Counsel for the petitioners further submits that she had written a letter dated 18th June, 2026 to the respondents seeking the address of the proposed arbitrator but the same was never furnished to her. Under these circumstances, the petitioners have preferred the present petition under Section 11 (6) of the Arbitration and Conciliation Act. Learned Counsel for the Respondents submits that the partnership agreement dated 20th February, 2024 contains a specific clause conferring jurisdiction upon the Civil Court at Calcutta in respect of matters arising out of, or in connection with, the affairs of the said partnership. On this basis, it is contended on behalf of the Respondents that the dispute between 3 the parties is not arbitrable and must, instead, be adjudicated by the Civil Court. The objection raised by learned Counsel for the Respondents, that the dispute is not arbitrable in view of the jurisdiction clause vesting jurisdiction in the Civil Court at Calcutta, is misconceived and is rejected for the following reasons. First, a clause conferring jurisdiction upon a civil court and an arbitration clause are not mutually destructive. A jurisdiction clause, absent express words of exclusion, ordinarily operates to designate the supervisory court for purposes such as appointment of arbitrator, interim relief, or challenge to the award under the Act, and does not, by itself, oust an arbitration clause specifically incorporated in the same agreement. The Respondents have not shown any language in the partnership agreement dated 20th February, 2024 that expressly excludes reference of disputes to arbitration; the two clauses are, therefore, capable of harmonious construction. Second, and more fundamentally, the conduct of the Respondents forecloses this objection. In their reply dated 1st June, 2026 to the Section 21 notice, the Respondents neither disputed the existence of the arbitration agreement nor raised any plea that the dispute was not arbitrable; on the contrary, they proceeded to propose the name of Mr. Shamit Sanyal, Advocate, as the sole Arbitrator. Having thus unequivocally invoked and acted upon the arbitration clause, it is not open to the Respondents to now approbate and reprobate by contending, for the first time before this Court, that the dispute must be relegated to a civil suit. Such a shift in stand is impermissible in law and amounts to waiver of any objection to arbitrability. 4 Third, even independent of waiver, the scope of enquiry at the stage of a petition under Section 11(6) is confined to the existence of an arbitration agreement. Once such existence is not in dispute, as is the admitted position here, questions of arbitrability, if any, are for the Arbitral Tribunal to examine under Section 16 of the Act, and this Court is not required to adjudicate that issue at the referral stage. For these reasons, the objection of the learned Counsel for the Respondents is overruled. Though the agreement records a panel of three members but with the consent of the parties Ms. Suparna Mukherjee, Sr. Adv. (Mob. No. 9830093370) is appointed as the sole Arbitrator to adjudicate the disputes and differences that have arisen out of between the parties. 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 fix his remuneration in terms of the Fourth Schedule of the Act or as may be agreed between the parties. A copy of this order shall be communicated to the learned Sole Arbitrator to take necessary steps. It is clarified that all questions relating to the arbitrability of the disputes, the admissibility of the claims, limitation, jurisdiction, 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.) S.A. AR(CR)