- 1 - appeal125.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.125 OF 2011 in ARBITRATION PETITION NO.222 OF 2008 Johnwin Manavalan & anr .. Appellant (Orig.Respt nos. 1 & 2) vs Rajiv Vyas .. Orig.Petitioner & Respt no.3 Mr.F.Divetre Sr.Advocate with Mr.Sham Jagtiani for Appellant Mr.Sudeep Sen for Orig.Petitioner CORAM: D.K.DESHMUKH & ANOOP V.MOHTA, JJ DATE: 25th April, 2011 PER COURT 1. The Appellant in this Appeal makes a grievance against the findings recorded by the learned Single Judge about the existence of the arbitration agreement. 2. Learned counsel appearing for the respondents submits that this Appeal is not maintainable under section 37. He, however submits that in any case the finding about - 2 - appeal125.11 existence of the Arbitration Agreement recorded by the learned Single judge is only a prima facie finding. He submits that the appellant can raise the same issue before the Arbitrator under section 16 of the Arbitration Act and in any case such an issue can be raised under section 16 of the Arbitration agreement. The arbitrator will have to decide that issue on the basis of the material produced before him without being influenced by whatever said on the issue by the learned Single Judge. In our opinion, in view of the submission made by learned counsel for the respondents that the appeal should not be entertained because it is open to the Appellant to raise an objection to the jurisdiction of the arbitrator on the ground that there is no Arbitration Agreement need not be entertained. If such an objection is raised, the Arbitrator will have to decide it - 3 - appeal125.11 without being influenced by the observations made in the order impugned in Appeal. Appeal is therefore, disposed of. 3. It is common ground before us that an order has been made for appointment of an arbitrator under section 11 of the Act based on the findings recorded by the learned Single Judge which is challenged in this Appeal. Obviously therefore, the learned Arbitrator will decide the issue about the existence of the Arbitration Agreement independently of the order made under section 11 of the Act also. Notice of Motion No.1276 of 2011 also stands disposed of. Anoop V.Mohta, J D.K.Deshmukh,J - 4 - appeal125.11