IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 924 ARBITRATION APPLICATION NO. 13 OF 2026 RAJU MANSINGH RATHOD VERSUS GOPAL TRILOKCHAND AGARWAL AND ANOTHER ... Mr. M.S. Deshmukh, Advocate h/f Mr. A.B. Deshmukh, Advocate for applicant Mr. Sanjay Jain, Advocate a/w Mr. Sairam Subramanian, Ms. Saloni Shah, Ms. Ruchika Prabhu, Advocates h/f Mr. A.M. Cyril, Advocate for respondent No.1 Mr. Uddhav Momale, Advocate for respondent No.2 ... CORAM : ROHIT W. JOSHI, J. DATE : 01st SEPTEMBER, 2026 ORDER : . Present application is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 invoking arbitration clause incorporated in clause 20 in the Partnership Deed dated 05.12.2020 pertaining to a Partnership Firm viz. M/s. Ramanuj Ventures, of which the applicant and non applicants are partners. There is no dispute between the parties with respect to the Partnership Deed and the arbitration clause contained therein. 2 Respondent No.1 has opposed the application predominantly on the ground that right to invoke arbitration as per clause 20 of the Partnership 2026:BHC-AUG:41236 2 924_ARB_13_2026 Deed is waived by the applicant by filing a suit, being Commercial Suit No.4/2025 before the learned District Judge (Commercial Court) at Aurangabad. Learned Advocate contends that perusal of the notice invoking arbitration will demonstrate that the claim made in the civil suit is also referred in the said notice and, therefore, filing of the earlier civil suit with respect to one of the claims will amount to waiver of right to invoke the arbitration clause in the Partnership Deed. Learned Advocate has placed reliance on Judgment of the Delhi High Court in the matters of Bharti Televentures Ltd. vs. DSS Enterprises Private Limited and others [2005 SCC OnLine Delhi 862], Raj and Associates vs. Videsh Sanchar Nigam Limited and others [2004 (76) DRJ 60] and Booz Allen and Hamilton Inc. vs. SBI Home Finance Limited and others [(2011) 5 SCC 532]. In the case of Bharti Televentures Ltd. (supra) despite the arbitration agreement between the parties, the plaintiff had instituted a civil suit which was not objected by the defendant by filing an application under Section 8 of the Arbitration and Conciliation Act, 1996. Rather the defendant also filed a counter claim in the civil suit. In such circumstances, the Court has held that where a party itself chooses to file a civil suit, it cannot then alter its stand to invoke the arbitration clause for adjudication. The Judgment in the case of Raj and Associates (supra) follows the same principle and lays down that having instituted a civil suit with respect to a claim which could be subjected to 3 924_ARB_13_2026 arbitration, it is not open for the party filing the civil suit to invoke the arbitration clause. In the case of Booz Allen and Hamilton INC (supra) the Hon’ble Supreme Court has held that in case a civil suit is instituted with respect to a matter which could be adjudicated in an arbitration, the defendant must raise an objection to the civil suit by filing an application under Section 8 of the Arbitration and Conciliation Act before submitting first statement on the substance of the dispute. 3 Whereas there cannot be any quarrel, with the legal propositions to which attention is drawn by the learned Advocate for respondent No.1, in the facts of the present case it is found that the prayer in the commercial suit instituted by the applicant is for declaration that a Memorandum of Understanding dated 21.03.2022 executed in between defendant Nos.2 and 3 in the said suit viz. M/s. Siddhi Fibers, a partnership in which the non applicant No.1 is one of the partners and another company named M/s. Wockhardt Ltd. is null and void and not binding on the plaintiff in the said suit. Similarly, declaration is sought that leasehold rights with respect to the suit property vest with the plaintiff. The said claim is made against defendant Nos.2 and 3 in the said suit also. It is obvious that prayers sought in the civil suit cannot be claimed in the arbitration proceeding since defendant Nos.2 and 3 are not parties to the arbitration agreement / 4 924_ARB_13_2026 partnership deed. Institution of the suit, having regard to the prayers made in the suit, as also the parties to the suit, therefore will not be a bar to invoke arbitration clause in the partnership deed for resolution of disputes interse between partners. Although it is stated that the arbitration notice refers to claim in the civil suit as one of the claims in arbitration proceedings to be initiated, it is not in dispute that there are several other claims which are not subject matter of the civil suit. In the event any claim is raised by the applicant which is not arbitrable or is otherwise not maintainable, it will be open for the non applicant to raise objection in this regard before the Arbitral Tribunal. In the considered opinion of this Court the prayer for appointment will have to be allowed. The contention that the arbitration clause ceases to exist or is rendered inoperative in view of the institution of the civil suit, cannot be accepted for the reasons aforesaid. 4 Another objection by the learned Advocate for the non applicant No.1 is that a material fact with respect to institution of the civil suit is suppressed by the applicant and, therefore, the applicant does not deserve any relief at the hands of this Court. I am afraid suppression of a fact which is material in nature only will disentitle from the applicant from seeking relief of appointment of Arbitrator. The alleged suppression is not a suppression of material fact since the subject matter of the suit can never be subject-matter 5 924_ARB_13_2026 of arbitration to be initiated in accordance with arbitration clause in partnership deed for adjudication of disputes interse between the partners of the firm. 5 For the reasons recorded above, the objections raised by the applicant are liable to be rejected. Application for appointment of Arbitrator deserves to be allowed. 6 At the joint request of the parties, Hon’ble Shri. Justice P.V. Hardas, a Former Judge of this Court is appointed as sole Arbitrator for adjudication of disputes between the parties arising out of Partnership Deed dated 05.12.2020. 7 Office is directed to issue a request letter to the learned Arbitrator seeking consent and statement of disclosure as contemplated under Section 12 of the Arbitration and Conciliation Act. 8 The appointment shall be subject to receipt of consent letter and statement of disclosure. 9 All contentions pertaining to maintainability of claim and arbitrability of dispute are kept open. ( ROHIT W. JOSHI, J. ) agd