The Bombay High Court has declined to entertain a petition seeking substitution of an arbitrator in a dispute holding that the plea was prima facie misconceived in light of the parties’ contractual agreement providing for online dispute resolution (ODR).
Justice Somasekhar Sundaresan noted that the governing terms and conditions of the loan contract accessible to the borrower through a provided digital link clearly contained the arbitration agreement and stipulated resolution of disputes through a named Online Dispute Resolution platform. The Court recorded that the petitioner did not deny receipt of intimations issued by the ODR agency, including notices for conciliation and subsequent commencement of arbitration.
Rejecting the contention that there was no consensus on the appointment of the arbitrator, the Court held that such a plea could not be sustained where the parties had expressly agreed, at the contracting stage, to conciliation and arbitration through a pre-designated institutional ODR mechanism. The Court observed that arbitrator appointment carried out in accordance with such agreed digital processes cannot be challenged merely on the ground of an alleged lack of consensus.
While holding that the petition was prima facie misconceived, the Court, upon hearing the parties, recorded their willingness to attempt an amicable settlement to avoid the costs of arbitration. Accordingly, the matter was referred to the Mediation Centre of the Bombay High Court, with directions to the parties to appear before it within the stipulated timeline. The arbitral tribunal was also directed to be informed of the mediation exercise pending resolution.
Appearances:
For the Petitioner: Ms. Sanaya Dadachanji, a/w Resham Vasant Savla, i/b Manilal Kher Ambalal & Co.,
