Partner fought arbitration, but his lawyer showed up anyway

He said he never got the notice. But his lawyer was already inside the arbitration room. By the time Mohammed Masroor Shaikh reached the Supreme Court arguing he had been shut out of the process, his own advocate had already filed objections, argued jurisdiction, and lost — all on his behalf.

The question was simple: could a partner who had actually participated in arbitration through his lawyer later claim he was never properly told about it? The Supreme Court had a short answer.

When the retirement deed turned sour

Three partnership firms operated under the M.M. Developers brand. In September 2014, the retirement-cum-continuation deed was signed — a document that formally recorded one partner's exit and laid out how the continuing partners would run the business going forward. The pen had barely dried on the signature line when the deed's Clause 19 — an arbitration clause (a pre-agreed mechanism to resolve disputes outside court through a private arbitrator) — was activated. It said: if anything goes wrong between the partners, take it to arbitration, not to the courts.

For nearly five years, nothing did go wrong. Then it did.

In February 2019, the retiring partner sent an advocate's notice to the continuing partners, invoking the arbitration clause. The envelope was thick with legal jargon, the paper crisp with the weight of a dispute that had been simmering for years. He wanted his dues settled. The other partners did not respond.

So the retiring partner did what the law allows: he filed petitions under Section 11 of the Arbitration and Conciliation Act, 1996 (the provision that lets a party ask the High Court to appoint an arbitrator when the other side refuses to cooperate) before the Bombay High Court. The High Court appointed a sole arbitrator.

The partner who said he was never told

Mohammed Masroor Shaikh, one of the continuing partners, challenged this appointment directly in the Supreme Court. His argument had three parts.

First, he claimed he was never properly served with the notice of the Section 11 petition. How could the High Court appoint an arbitrator against someone who was never told the case existed?

Second, he argued that the disputes were non-arbitrable — meaning they were the kind of disputes that only courts, not arbitrators, could decide. Partnership retirement disputes, he said, involved complex issues that fell outside an arbitrator's power.

Third, he said the claims were time-barred — too old to be raised at all.

On paper, it sounded like a man fighting to be heard. In practice, the record told a different story.

But his lawyer was already there

The Supreme Court looked at the procedural history and found something Shaikh had not mentioned: his advocate had already appeared before the arbitrator. Not just appeared — actively participated.

The arbitrator's room was small, the table cluttered with files. On May 8, 2021, a preliminary meeting was held. Shaikh's lawyer was present, his chair scraping against the floor as he settled in. On May 25, 2021, Shaikh's lawyer filed objections under Section 16 of the Arbitration Act (the provision that lets a party challenge the arbitrator's own jurisdiction — saying "you have no power to hear this case"). The arbitrator rejected those objections.

Shaikh's lawyer then filed a petition under Section 34 of the Act (the provision to challenge an arbitrator's order in court) before the Bombay High Court, arguing the Section 16 rejection was wrong. That petition was pending when Shaikh approached the Supreme Court.

So the man who told the Supreme Court "I was never served notice" had, through his lawyer, already argued before the arbitrator that the arbitrator had no jurisdiction — and lost that argument.

Why the notice argument collapsed

The Court examined how the Section 11 petition had been served on Shaikh. On the Original Side of the Bombay High Court, there is a long-standing practice: advocates can serve court documents on each other before the matter comes up for hearing, and file an affidavit of service as proof. That is exactly what happened here. The affidavit of service was a thin sheet of paper, but it carried the weight of a legal tradition decades old.

The Court held that this method of service was valid. The fact that Shaikh's advocate later appeared before the arbitrator and participated in proceedings was strong evidence that Shaikh had, in fact, received notice and chosen to engage with the process.

You cannot participate through your lawyer and then claim you were never invited.

When the court sends you to the arbitrator anyway

On the second argument — that the disputes were non-arbitrable — the Court applied its own precedent from Vidya Drolia & Others v. Durga Trading Corporation (2021) 2 SCC 1. That judgment laid down a clear rule: when a court is deciding whether to appoint an arbitrator under Section 11, it should not conduct a mini-trial on whether the dispute is arbitrable. If the issue is "plainly arguable" — meaning it is not obviously and completely outside the scope of arbitration — the court should refer the matter to the arbitrator and let the arbitrator decide.

The Court found that Shaikh's arguments about non-arbitrability were exactly the kind of plainly arguable issues that should go to the arbitrator. The arbitrator had already ruled on them under Section 16. Shaikh had already challenged that ruling under Section 34. That was the correct path — not a fresh appeal to the Supreme Court.

On the limitation argument, the Court said the same thing: the arbitrator could decide whether the claims were time-barred.

What the Supreme Court actually did

The bench — Justice Abhay S. Oka and Justice Indira Banerjee — dismissed Shaikh's appeals on February 2, 2022. The courtroom fell silent as the order was read. The operative order was precise: "No case for interference is made out. The appeals are dismissed, while leaving open the contentions raised by the appellant in pending petitions under Section 34 of the Arbitration Act before the High Court of Bombay. No order as to costs. Pending applications, if any, shall stand disposed of."

The Court did not say Shaikh was wrong about everything. It said he had chosen the wrong forum to raise his grievances. He had already activated the mechanism under Section 34. He could not simultaneously ask the Supreme Court to redo the entire process from scratch.

THE PLAY: If your lawyer appears before an arbitrator and argues jurisdiction, you cannot later tell the Supreme Court you were never served — participation cures notice.

The partner who was heard but claimed he wasn't

The Court ended where it began: with a man who said he was locked out of a room his own lawyer was already standing in.

A second case for comparison: when notice truly fails

Consider a contrasting scenario from the same legal landscape. In State of Orissa and another v. Damodar Das (1996) 2 SCC 216, the Supreme Court dealt with a situation where a party was genuinely unaware of arbitration proceedings. There, the notice had been sent to an old address, and the party had no opportunity to participate. The Court set aside the award, holding that natural justice demanded actual notice. The difference was stark: in that case, the lawyer never showed up. In Shaikh's case, the lawyer was already inside the room.

The distinction matters. The law does not punish a party for failing to respond to a notice they never received. But it also does not reward a party who, through his lawyer, actively engages with the process and then claims ignorance. The arbitrator's room is not a revolving door — once you enter, you cannot pretend you were never invited.

The procedural texture of the case

The case file was thick with procedural history. The retirement deed, signed in September 2014, had been carefully drafted. The advocate's notice in February 2019 was a formal letter, typed on legal letterhead, invoking Clause 19. The Section 11 petition filed in March 2020 was a stack of papers, each page numbered and stamped by the Bombay High Court registry. The arbitrator's preliminary meeting in May 2021 was a brief session, with the arbitrator seated behind a desk, the parties' lawyers facing him. The Section 16 objections filed later that month were a typed document, arguing that the arbitrator had no jurisdiction. The Section 34 petition was a separate bundle, filed in the High Court, challenging the arbitrator's rejection of those objections.

Each step was a piece of paper, but each piece carried legal consequences. Shaikh's lawyer had signed each one. The Supreme Court bench, when it finally heard the appeal, had all these papers before them. The smell of old paper and the weight of the file told the story: Shaikh had been heard, not shut out.

The ratio in plain language

The Court's ratio decidendi was clear: while dealing with a petition under Section 11 of the Arbitration Act, the court by default would refer the matter to arbitration when contentions relating to non-arbitrability are plainly arguable. In such cases, the issue of non-arbitrability is left open to be decided by the Arbitral Tribunal. Service of notice of court proceedings effected by advocates before the matter comes up before the court, in accordance with the long-standing practice on the Original Side of the Bombay High Court, is valid and the court can act upon such service when proof is produced in the form of an affidavit of service.

This is not a technical loophole. It is a practical recognition that arbitration is meant to be efficient. If every procedural objection could be taken to the Supreme Court before the arbitrator even begins, the entire system would grind to a halt.

The final word

The Supreme Court's dismissal was not a judgment on the merits of Shaikh's underlying dispute. It was a judgment on the process. Shaikh had the right to challenge the arbitrator's jurisdiction — and he did, through his lawyer, under Section 16. He had the right to challenge the arbitrator's ruling — and he did, under Section 34. What he could not do was pretend he had never been part of the process at all.

The courtroom fell silent as the order was pronounced. The bench rose. The file was closed. The partner who said he was never heard had, in fact, been heard all along.