Whether Court should Refer The Parties To Arbitration if There Is A Duality Of Expert Opinion As To The Genuineness Of the arbitration Agreement?

 Whereas, as regards the execution of the Joint Venture Agreement by Mr. Rajendra Parekh, by putting the signatures thereon, there is a duality of opinion. The State Examiner of Documents has opined that the disputed signatures appear to have been written by the person who wrote the specimen signatures. Ms. Nisha Menon, private expert, opined to the contrary.

49. The non-arbitrability of the dispute, in the backdrop of the allegations of fraud, has also been subjected to two tests. First, whether the alleged fraud affects the underlying contract, rendering it void. Two, whether the fraud is restricted to the affairs of the parties, inter se, without any implication in the public domain. To put it in other words, the civil aspect of fraud may legitimately form a subject matter of arbitration. However, the criminal aspect of fraud, which entails penal consequences, can only be adjudicated by a court of law. In contemporary arbitration, the broad proposition that the allegations of fraud are non-arbitrable is not favoured. If an allegation of fraud can be adjudicated upon before a civil court, there is no justifiable reason to exclude such disputes from being resolved through arbitration.

64. In such circumstances, the course adopted by the Supreme Court in the case of Pravin Electricals (Supra) by directing the Arbitrator to first determine as to whether the arbitration agreement exists between the parties in the light of the defence rooted in the fraud and forgery, as a preliminary issue, appears expedient. 

 IN THE HIGH COURT OF BOMBAY

Arbitration Application No. 72 of 2013

Decided On: 06.05.2022

Atul & Arkade Realty (Previously known as Atul Real Estate Holding)  Vs. I.A. & I.C. Private Limited and Ors.

Hon'ble Judges/Coram:

N.J. Jamadar, J.

Citation: MANU/MH/1607/2022

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Whether the Small cause court has jurisdiction to try a claim for recovery of security deposit or damages or is said dispute arbitrable?

As held by this Court in the case of Brainvisa Technologies Pvt. Ltd. (supra) license fee, charges and rent are periodical payments made for use and occupation. A claim for recovery of the same, legitimately falls within the exclusive jurisdiction of the Court of Small Causes. In the case at hand, the respondent professes to withhold the security deposit on the ground that the applicant is liable to pay damages. Such a claim, in my considered view, does not fall within the exclusive jurisdiction of the Court of Small Causes, and is amenable to arbitration. 

{Para 45}

 IN THE HIGH COURT OF BOMBAY

Arbitration Application No. 340 of 2019

Decided On: 05.05.2022

 Bafna Motors Private Limited  Vs.  Amanulla Khan

Hon'ble Judges/Coram:

N.J. Jamadar, J.

Citation: MANU/MH/1583/2022

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Whether Tax invoices containing reference to Arbitration constitute an Arbitration Agreement?

 It is on the basis of the tax invoices, the applicant is before the

Court to contend that there is an arbitration agreement between the parties. Such a contention as urged on behalf of the applicant cannot be accepted as issuance of tax invoice is certainly required to be held to be an unilateral act on the part of the applicant. The contract between the parties is actually born under the purchase orders. The purchase orders do not contain or make any reference to an arbitration agreement between the parties. {Para 3}

4. To accept the applicant’s case that there is an arbitration

agreement between the parties in my opinion, would be in the teeth of Section 7 of the Act which provides as to what would constitute an arbitration agreement. In the present context, it can be clearly held that there is no conscious agreement between the parties to refer the disputes for adjudication in arbitration. Merely because the tax invoices which are in response to the purchase orders provide for an arbitration, certainly such invoices do not bring about an arbitration agreement as contemplated under Section 7 of the Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

ARBITRATION APPLICATION (L.) NO.23207 OF 2021

Concrete Additives and Chemicals Pvt. Ltd Vs. S N Engineering Services Pvt. Ltd.

CORAM : G.S. KULKARNI, J.

DATE : JANUARY 17, 2022.

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Basic concept of habitual residence in International arbitration

V. Factors Considered When Determining "Habitual Residence"

Courts consider a variety of factors when determining a child's habitual residence. The factors can be divided into two broad categories: factors regarding intent and factors regarding acclimatization of the child to the country of residence. A single factor usually is not determinative, and courts often need to weigh conflicting factors. This section will list the factors that have been considered by courts and provide brief commentary about each.

A. Factors Related to Parental Intent

• Parental employment - The employment of one or both parents in a country to which the parents recently moved can be evidence of establishing a new habitual residence. Conversely, leaving one's employment in a country can be evidence of leaving a prior state of habitual residence.

• Purchase of home - Purchase of a home also is evidence of establishing habitual residence. Purchase of a home is more likely to be a basis for such a finding than short-term stays with relatives or in a rental apartment.

• Moving of belongings - The movement of family belonging can establish intent to establish a new habitual residence. However, shipping some belongings while keeping other belongings in the state from which one moved can be evidence of not intending to change habitual residence.

• Location of bank accounts - A parent's decision to maintain bank accounts in a country where the parent had lived, despite spending time in a new country, is evidence of the parent's tie to the original country.

• Obtaining driver's license and professional licenses - Obtaining a driver's license or professional license in a new country (or attempting to obtain such licenses) is evidence of intent establish a new habitual residence.

• Marital instability - If the family is moving at a time of marital instability, that can be viewed as supporting evidence that at least one of the parents did not intend to live at the new location indefinitely, and thus there was not intent to establish a new habitual residence. This is particularly true if the parties agreed the move was for a "trial period."

• Citizenship; immigration status; type of visa - If a parent and child come to a country on a tourist visa and do not seek more permanent residency status, that can lead to a finding that habitual residence in the prior country from which the parent and child came was not abandoned. A court has observed, however, "While an unlawful or precarious immigration status does not preclude one from becoming a habitual resident under the Convention, it prevents one from doing so rapidly."

27. As can be seen from the above decisions, the meaning of the expression 'habitually resident' is similar in meaning to 'ordinary resident'. 

From a reading of all of the above judgments and authorities it is clear that the question of whether a person habitually resides in a country or place may depend on various facts and circumstances. The term 'habitually resides' or similar terms such as 'ordinarily resides' have not been defined and do not have a technical meaning. However, from the above observations there are some factors or tests which are applicable to decide whether a person habitually resides in a particular place or location. Some of the important tests and factors, are as under:

(i) The quality of the residence and not only the duration of the residence.

(ii) The residence must be actual and bona fide and there must be a regular physical presence that must endure for some time. However, the duration of time must be considered in the facts of each case and given the purpose of the residence in a particular place.

(iii) The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period.

(iv) Education, business or profession, employment, health, family or merely love of the place may be common reasons for a choice of regular abode, and there may be others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

(v) Some of the specific factors that may be considered are: location of bank accounts; location of movables; purchase of a house; obtaining of licenses and residential status or visa type of the person in that place.

(vi) The residence in that place must be something more than casual or a flying visit to a place. It is not a requirement that the person is at a particular place for dwelling always or on permanent uninterrupted basis.

31. It is relevant to note that in the case of Mother v. Father, supra, the parties had taken an apartment for rent in New York for only 3 months and the daughter had started speech therapy and this was sufficient in that case for the Court to hold that the child 'habitually resided' in New York. In Sandip Shankarlal Kedia, supra, this Court held that the wife habitually resided in Dubai, inter alia, because she was a Director of three companies in Dubai and has businesses in Dubai.

IN THE HIGH COURT OF BOMBAY

Arbitration Application No. 49, 50 and 51 of 2017

Decided On: 22.02.2019

 Aslam Ismail Khan Deshmukh Vs. Asap Fluids Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

S.J. Kathawalla, J.

Citation: AIR 2019(NOC) 566 Bom

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Whether dispute involving simple allegation of fraud are arbitrable?

 In view of our aforesaid discussions, we are of

the opinion that mere allegation of fraud simplicitor

may not be a ground to nullify the effect of

arbitration agreement between the parties. It is only

in those cases where the Court, while dealing with

Section 8 of the Act, finds that there are very

serious allegations of fraud which make a virtual

case of criminal offence or where allegations of

fraud are so complicated that it becomes absolutely

essential that such complex issues can be decided

only by civil court on the appreciation of the

voluminous evidence that needs to be produced, the

Court can sidetrack the agreement by dismissing

application under Section 8 and proceed with the suit

on merits. It can be so done also in those cases

where there are serious allegations of

forgery/fabrication of documents in support of the

plea of fraud or where fraud is alleged against the

arbitration provision itself or is of such a nature

that permeates the entire contract, including the

agreement to arbitrate, meaning thereby in those

cases where fraud goes to the validity of the

contract itself of the entire contract which contains

the arbitration clause or the validity of the

arbitration clause itself. Reverse position thereof

would be that where there are simple allegations of

fraud touching upon the internal affairs of the party

inter se and it has no implication in the public

domain, the arbitration clause need not be avoided

and the parties can be relegated to arbitration.

While dealing with such an issue in an application

under Section 8 of the Act, the focus of the Court

has to be on the question as to whether jurisdiction

of the Court has been ousted instead of focusing on

the issue as to whether the Court has jurisdiction or

not. It has to be kept in mind that insofar as the

statutory scheme of the Act is concerned, it does not

specifically exclude any category of cases as nonarbitrable.

Such categories of non-arbitrable

subjects are carved out by the Courts, keeping in

mind the principle of common law that certain

disputes which are of public nature, etc. are not

capable of adjudication and settlement by arbitration

and for resolution of such disputes, Courts, i.e.

public fora, are better suited than a private forum

of arbitration. Therefore, the inquiry of the Court,

while dealing with an application under Section 8 of

the Act, should be on the aforesaid aspect, viz.

whether the nature of dispute is such that it cannot

be referred to arbitration, even if there is an

arbitration agreement between the parties. When the

case of fraud is set up by one of the parties and on

that basis that party wants to wriggle out of that

arbitration agreement, a strict and meticulous

inquiry into the allegations of fraud is needed and

only when the Court is satisfied that the allegations

are of serious and complicated nature that it would

be more appropriate for the Court to deal with the

subject matter rather than relegating the parties to

arbitration, then alone such an application under

Section 8 should be rejected.

The principles of law laid down in this appeal make a

distinction between serious allegations of

forgery/fabrication in support of the plea of fraud as

opposed to “simple allegations”. Two working tests laid

down in paragraph 25 are : (1) does this plea permeate the

entire contract and above all, the agreement of arbitration,

rendering it void, or (2) whether the allegations of fraud

touch upon the internal affairs of the parties inter se

having no implication in the public domain.

Judged by these two tests, it is clear that this is a

case which falls on the side of “simple allegations” as

there is no allegation of fraud which would vitiate the

partnership deed as a whole or, in particular, the

arbitration clause concerned in the said deed. Secondly,

all the allegations made which have been relied upon by the

learned counsel appearing on behalf of the respondent,

pertain to the affairs of the partnership and siphoning of

funds therefrom and not to any matter in the public domain.

This being the case, we are of the view that the

disputes raised between the parties are arbitrable and,

hence, a Section 11 application under the Arbitration Act

would be maintainable.

‘REPORTABLE’

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7005 OF 2019

RASHID RAZA Vs  SADAF AKHTAR 

R. F. NARIMAN, J.

Dated:September 04, 2019.

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Whether court has jurisdiction to appoint Arbitrator in dispute relating to National Highways Act, 1956?

The moot question which arises before us is whether the

application under Section 11 of the Arbitration and Conciliation

Act, 1996(hereinafter being referred to as “Act 1996”) is

maintainable in view of Section 3G(5) of the National Highways

Act, 1956 (hereinafter being referred to as “Act 1956”) which

provides for appointment of an Arbitrator by the Central

Government.

 We are also of the considered opinion that in view of the

power being vested exclusively with the Central Government to

appoint an Arbitrator under Section 3G(5) of the Act 1956, being

a special enactment, the application filed under Section 11(6) of

the Act 1996 for appointment of an Arbitrator was not

maintainable and provisions of the Act, 1996 could not be

invoked for the purpose.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 6958-6959

OF 2009

NATIONAL HIGHWAYS AUTHORITY

OF INDIA Vs  SAYEDABAD TEA COMPANY LTD.

Rastogi, J.

Dated:AUGUST 27, 2019.

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Whether arbitrator will be incapable to conduct Arbitration proceeding if he has not given disclosure as per Sixth Schedule of Arbitration Act?

Reading of Section 12(1) of the Act with the Sixth Schedule would clearly demonstrate the importance of the disclosure to be made by the proposed Arbitrator who is approached by the parties with his possible appointment as an Arbitrator. The disclosure is relevant and necessary as independence and impartiality of the Arbitrator are the hallmark of any arbitration proceedings. The amended provision is enacted to identify ‘circumstances’ which give rise to ‘justifiable doubt’ about the independence and impartiality of the Arbitrator.

11. Having appreciated and re-emphasized the importance of the disclosure under Section 12(1) of the Act, the question is whether an improper disclosure, as in the present case would render the Arbitrator so appointed ineligible or de jure incapable of proceeding with the arbitration proceedings. The answer to this, in my opinion, has to be in the negative. The legislature, while emphasizing on the disclosure under Section 12(1) of the Act, has not further stated that the consequence of such non-disclosure would be automatic termination of the mandate of the Arbitrator so appointed. In absence of such a legislative consequences, in my opinion, it would depend on the facts of the given case whether the mandate of the Arbitrator would stand terminated upon non-disclosure or giving a false disclosure under Section 12(1) of the Act.

12. In Pallav Vimalbhai Shah v. Kalpesh Sumatibhai Shah, High Court of Gujarat held as under:—

“38. In this context, the necessity of disclosure envisaged in subsection (1) of Section 12 becomes important. Only when such a disclosure is made, that the parties can judge for themselves, if circumstances exist to give justifiable doubts as to the impartiality of an arbitrator. Upon disclosure being made any one of the following situations may arise. First is, where the parties may agree that no such circumstances giving rise to justifiable doubts as to the impartiality of the arbitrator exist or the parties may despite such circumstances existing, go ahead and appoint him as an arbitrator or in face of disagreement between the parties on this issue, one of them, as per the procedure envisaged in the arbitration clause, may proceed to appoint such a person as an arbitrator. Whatever be the fall out, it cannot be denied that disclosure of existence of any circumstance likely to give rise to justifiable doubts as to independence or impartiality of an arbitrator, would be of great importance. Not making any disclosure even though such circumstances exist, would render the appointment of an arbitrator without following the mandatory procedure. This is not to suggest that even though no such circumstances exist, mere failure to make a disclosure or in a format different from that provided in the Sixth Schedule by itself would be fatal to the appointment of the arbitrator. This is also not to suggest that if a party objecting to appointment of arbitrator is aware about existence of such circumstances before the appointment is made, he could challenge the same at a later time on the ground that disclosure was not made. Such a situation would be clearly covered by sub-section (3) of section 12. This is only to suggest that if circumstances exist and disclosure is not made, appointment of an arbitrator would be wholly non-est. In such a situation a party making appointment of an arbitrator without following such mandatory procedure cannot, by referring to section 13 of the Amending Act, drive the opponent to challenge his appointment before the Arbitrator Tribunal itself and if such a challenge before the Tribunal was unsuccessful, to submit to the jurisdiction of the Arbitral Tribunal and to challenge the award in accordance with Section 34 inter-alia on the ground of incompetence of the arbitrator.”

13. In HRD Corporation v. Gail (India) Limited 2017 SCC OnLine SC 1024, Supreme Court negated an argument challenging the appointment of an Arbitrator on the ground that the Arbitrator had not made a complete disclosure in his disclosure statement. The Supreme Court held as under:—

“29. The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure, in that this disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the Appellant to raise this point at this stage as it was never raised earlier. Obviously, if Justice Doabia did not indicate anything to the contrary, he would be able to devote sufficient time to the arbitration and complete the process within 12 months.”

14. In the present case the Arbitrator has given the disclosure in terms of Section 12(1) of the Act (though not in the form prescribed in the Sixth Schedule) as under:—

“Please be informed that there exist no circumstances that give rise to justifiable doubts as to my independence or impartiality in resolving the disputes referred in this regard.”

15. Though the above disclosure is not in terms of the Sixth Schedule of the Act, the same discloses the most vital aspect of the same. In any case, if the petitioner(s) were not satisfied with the said disclosure they should have made a request to the Arbitrator so appointed for making a proper disclosure or of other circumstances that may give rise to justifiable doubt as to his independence and impartiality. Instead of doing so, the petitioner(s) have filed the present petition(s) under Section 11 of the Act.

In the High Court of Delhi at New Delhi

(Before Navin Chawla, J.)

Manish Anand  v.Fiitjee Ltd

ARB.P. 654/2017 & I.A. No. 11965/2017

Decided on February 21, 2018,

Citation: 2018 SCC OnLine Del 7587

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Whether court can grant interim relief even if arbitration agreement is insufficiently stamped?

1st Question
“Whether a court, under the Arbitration and Conciliation Act,
1996, can entertain and grant any interim or ad-interim relief
in an application under Section 9 of the said Act when a
document containing arbitration clause is unstamped or
insufficiently stamped?”

2nd Question
“Whether, inter alia, in view of Section 11 (6A) of the
Arbitration and Conciliation Act, 1996, inserted by Arbitration
and Conciliation (Amendment) Act, 2016, it would be
necessary for the Court before considering and passing final
orders on an application under Section 11(6) of the Act to
await the adjudication by the stamp authorities, in a case
where the document objected to, is not adequately stamped?
Hence, the above two questions, firstly falling under
Section 9 of the ACA and secondly falling under Section 11 of
the ACA and having common features, namely, as to what is
the effect and consequence of the document being not
sufficiently stamped, when the court is called upon to exercise
jurisdiction under the provisions of Section 9 and Section 11 of
the ACA, are issues falling for consideration of this Bench.

Answer
Taking a overall view of the scheme of the ACA,
judgments delivered by the Supreme Court, we are of the view
that the party need not be put to a disadvantage merely
because an objection has been raised in respect of
insufficiency of the stamp on the agreement presented before
the court. Neither a contesting party could deprive legitimate
rights of a litigant in praying for timely intervention of the
court by praying for appointment of an arbitral tribunal nor for

interim reliefs in the fact situation of a case. That would be
rendering a party without any forum and in a given situation
the outcome would be, at times, catastrophic and disastrous
and the damage could be irreparable one. A balanced
approach, keeping in view the legislative intent and the view
adopted by the Supreme Court, needs to be adopted, so that
the purpose of enacting the provisions of Sections 11 and 9 of
the ACA as amended by the Amendment Act is not defeated.
119. If an application under Section 11 or under Section
9 is required to be postponed till the order of adjudication is
passed by the learned Collector of Stamps with such
uncertainty of the time it would take to decide and the
hierarchy of remedies after such order, as it would be subject
to an appeal or a revision, as the case may be and till such
time no order either under Section 11 of under Section 9
should be passed, then the Legislature would not have
provided for speedy disposal of the applications under Section
11 or under Section 9 of the Act by inserting sub-Section (13)
in Section 11 and sub-Section (2) in Section 9 of the Act.

(L) ANSWERS TO THE QUESTIONS FRAMED :
120. In view of the above deliberation, we answer the
questions as framed by us as follows :-
Sr. No.
Question Answer
1 Whether a court, under the
Arbitration and Conciliation Act,
1996, can entertain and grant any
interim or ad-interim relief in an
application under Section 9 of the
said Act when a document
containing arbitration clause is
unstamped or insufficiently
stamped
In the Affirmative
2 Whether, inter alia, in view of
Section 11 (6A) of the Arbitration
and Conciliation Act, 1996,
inserted by Arbitration and
Conciliation (Amendment) Act,
2016, it would be necessary for
the Court before considering and
passing final orders on an
application under Section 11(6) of
the Act to await the adjudication
by the stamp authorities, in a case
where the document objected to,
is not adequately stamped?
In the Negative
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO.466 OF 2017

Gautam Landscapes Private Limited.  Vs. Shailesh S.Shah 

CORAM : NARESH H. PATIL, CJ.,
R. D. DHANUKA &
G. S. KULKARNI, JJ.

PRONOUNCED ON: APRIL 04, 2019.

JUDGMENT: (PER NARESH H. PATIL,CJ.)
This judgment is held not good law in view of Supreme court Judgment.Please see the link: https://www.lawweb.in/2019/04/sc-court-cant-appoint-arbitrator-when.html

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Whether Article 137 of limitation Act is applicable for appointment of arbitrator?

 It is not in dispute between the parties that Article 137 would apply to application filed under Section 11 of Act, 1996. In Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority, (1998) 2 SCC 338, Supreme Court held that in application for appointment of Arbitrator Article 137 of the Limitation Act will apply.

5. Article 137 of the Limitation Act, 1963 is applicable to applications both under the Civil Procedure Code and under the Special Acts. Article 137 constitutes the residuary Article in regard to applications. The starting point of limitation under Article 137 is the date when "the right to apply arises". Article 137 being a residuary Article to be adopted to different classes of applications, the expression "the right to apply" is expression of a broad common law principle and it has to be interpreted according to the circumstances of each case. In Ramanna v. Nallaparaju, 1995 (2) SCR 936, Supreme Court has held that "the right to apply" means "the right to apply first arises".

6. Under the Arbitration and Conciliation Act, 1996, right to apply to the court having jurisdiction would arise from the date such controversy arises between the parties.

IN THE HIGH COURT OF ALLAHABAD

Arbitration Application No. 69 of 2017

Decided On: 14.09.2017

 Central Electronics Limited Vs.  Friends Cable Industries

Hon'ble Judges/Coram:

Suneet Kumar, J.

Citation: 2017 (125) ALR 588.

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Whether High court should decide issue of res judicata or estoppel while exercising jurisdiction U/S 11 of Arbitration Act?

The question whether
the claims now sought to be raised by the petitioners would be
barred by the principles of Order II Rule 2 of CPC or on the

ground of res judicata or estoppel, in my opinion, are
questions on the merit of the claim of the petitioner and
defence of the respondent. These questions are to be
determined by the Arbitral Tribunal alone on the basis of the
pleadings and/or evidence led by the parties on these issues.
The question whether the claim of the petitioner would
be barred by the principles of res judicata or estoppel or by
Order II Rule 2 of the CPC are not matters to be considered by
this Court while exercising its jurisdiction under Section 11 of
the Act. (Indian Oil Corporation Ltd. vs. SPS Engineering
Ltd. (2011) 3 SCC 507)).
12. The legislature by amending the Act by way of the
Arbitration and Conciliation (Amendment Act) 2015 and the
insertion of Section 11(6A) of the Act has also restricted the
scrutiny of the Court at the stage of adjudicating an application
under Section 11 of the Act only to the existence of the
Arbitration Agreement.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 31.10.2018
 ARB.P. 724/2018 & IA 14999/2018

PARSVNATH DEVELOPERS LIMITED Vs  RAIL LAND DEVELOPMENT AUTHORITY

CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA

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When consortium of companies cannot initiate international commercial arbitration?

Since disputes arose between the parties to the agreement,
various interim claims had been made by the Consortium of M/s
Larsen and Toubro, an Indian company, together with Scomi
Engineering Bhd, a Company incorporated in Malaysia, for
which the Consortium has filed this petition under Section 11 of
the Act to this Court, since according to them, one of the parties
to the Arbitration agreement, being a body corporate,
incorporated in Malaysia, would be a body corporate, which is
incorporated in a country other than India, which would attract
Section 2(1)(f)(ii) of the Act.
 On the other hand, Mr. Shyam Diwan, learned senior
counsel appearing on behalf of MMRDA, the respondent, has
relied upon both the contract dated 09.01.2009 as well as the
actual Consortium Agreement dated 04.06.2008 between the
Indian company and the Malaysian company, which, when read
together, would show that they are really an un-incorporated
association and would, therefore, fall within Section 2(1)(f)(iii) as
being an association or a body of individuals, provided the
central management and control is exercised in any country
other than India. He has also gone on to rely heavily upon the

fact that in the Consortium, the lead partner is the Indian
company, and the Consortium’s office is at Wadala in Mumbai
making it clear, therefore, that sub-Clause (iii) of Section 2(1)(f)
of the Act would not apply as it is clear that the central
management and control, that is envisaged by the said sub-
Clause, would not be exercised in a country outside India but in
India itself.
This being the case, coupled with the fact, as correctly
argued by Shri Diwan, that the Indian company is the lead
partner, and that the Supervisory Board constituted under the
Consortium Agreement makes it clear that the lead partner
really has the determining voice in that it appoints the Chairman
of the said Board (undoubtedly, with the consent of other
members); and the fact that the Consortium’s office is in
Wadala, Mumbai as also that the lead member shall lead the
arbitration proceedings, would all point to the fact that the

central management and control of this Consortium appears to
be exercised in India and not in any foreign nation.
14) This being the case, we dismiss the petition filed under
Section 11 of the Act, as there is no “international commercial
arbitration” as defined under Section 2(1)(f) of the Act for the
petitioner to come to this Court. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
ARBITRATION PETITION (C) No. 28 OF 2017

M/S LARSEN AND TOUBRO LIMITED SCOMI
ENGINEERING BHD 
Vs
MUMBAI METROPOLITAN REGION
DEVELOPMENT AUTHORITY 

Dated:October 3, 2018.

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Whether parties can be denied right to appoint substitute arbitrator?

I find it difficult to concur with the opinion of the Bombay High Court in Ignatius Tony Pereira11, and the Calcutta High Court in Ramjee Power Construction Ltd10, wherein it has been held that, once an arbitrator is appointed by the Chief Justice of the High Court under Section 11, the right of the other party to appoint a substitute arbitrator, in accordance with the agreement, gets extinguished forever. My inability to agree is, firstly, because the rules referred to in Section 15(2), (as held by the Supreme Court in M/s. Yashwith Constructions (P) Ltd7), is the arbitration agreement; secondly, becauseSection 5 of the Act permits judicial intervention only when specifically provided under Part-I of the Act; and there is no specific provision in Part-I of the Act, much less in Section 15 thereof, stipulating that, if the earlier arbitrator is appointed by the High Court under Section 11(4) & (6) of the Act, the substitute arbitrator must also be appointed only by the High Court and not by the party to the agreement. Since the very object of the Act is to minimise the supervisory role of Courts in the arbitral process, and to give primacy to the agreement between the parties, there is no justifiable reason why a party to the arbitration agreement should, forever, be denied his right to appoint a substitute arbitrator, on the mandate of the earlier arbitrator being terminated, merely because he had failed to exercise his right, to appoint an arbitrator, earlier.

The respondent is entitled, in terms of Clause 22-A(iii) of the agreement, to appoint a substitute arbitrator even if they had failed to appoint an arbitrator earlier. On their exercising their right to appoint a substitute arbitrator, no other person can be appointed as an arbitrator, in substitution, by the High Court. It is only if they had failed to appoint a substitute arbitrator, despite being requested to do so by the applicant, would the applicant then have been entitled to invoke the jurisdiction of the High Court, under Section 11(6) of the Act, requesting it to take the necessary measure. As the respondent has appointed Justice C.V. Ramulu as their substitute arbitrator, even before they were called upon by the applicant to do so, the applicant is not entitled to invoke the jurisdiction of the High Court, underSection 11(6) of the Act, seeking appointment of a substitute arbitrator. The application, as filed, is therefore not maintainable.

Andhra High Court

Gamesa Wind Turbines Pvt. Ltd, ... vs Mytrah Energy (India) Ltd on 27 December, 2017

Arbitration Application No.55 of 2015

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Whether arbitrator can be appointed if agree-ment/MoU containing arbitration clause is unstamped?

In view of the dictum of Supreme Court in SMS Tea Estates Pvt. Ltd. (MANU/SC/0836/2011 : 2011 AIR SCW 4484) (supra), the application under Section 11 of the Act of 1996 for seeking reference to the Arbitrator/appointment of the Arbitrator has to be held to be not maintainable if the agree-ment/MoU containing the arbitration clause is unstamped or not duly stamped. 

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Misc. Application (Arbitration) No. 54 of 2015

Decided On: 21.10.2016

 Ansal Properties and Infrastructure Limited
Vs.
Jhamru Chandaram and Ors.

Hon'ble Judges/Coram:Mohammad Rafiq, J.

Citation:AIR 2017 Raj 52

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When high court should refer dispute to arbitration U/S 11 of arbitration Act?

We have heard learned counsel for the parties at some
length. The material facts are not in dispute. That a Service
Provider Agreement was executed between the parties is
admitted. That Article 7 of the said agreement provides for
settlement of the dispute in relation to the agreement by way of
arbitration is also not in dispute. That disputes have actually
arisen between the parties in relation to the agreement is also
evident from the averments made in the pleadings. The only
method for determination of such disputes is by way of
arbitration. Whether or not the petitioner has provided the
services envisaged under the agreement and, if so, whether the
said services were adequate and satisfactory are matters that can
be examined only by the Arbitrator. So also the question whether
the claim made by the petitioner is time barred cannot be

examined in the present proceedings and shall have to be left
open to be raised before the Arbitrator. There is, in that view, no
gainsaying that the present petition under Sections 11(5) and
11(12) shall have to be allowed with appropriate directions,
particularly when this Court is concerned primarily with the
question whether an arbitration agreement exists between the
parties and if so whether the disputes falling within the scope of
the agreement have arisen for determination. Our answer to
both these questions being in the affirmative, the petitioner has
made out a case for appointment of an Arbitrator and for
reference of the disputes for adjudication to him/her.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
ARBITRATION PETITION (CIVIL) NO.19 OF 2015
M/S. WEXFORD FINANCIAL INC. PANAMA 
V
BHARAT HEAVY ELECTRICALS LTD. 
Dated:July 13, 2016

Citation:(2016) 8 SCC267

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Whether misdescription of party will affect application for appointment of arbitrator as per S 11 of arbitration Act?

Such attention, however, has to be focused on the principal objection of the respondent. The same is to the effect that the two of the sub-agreements were between Taiyo Membrane Corporation and the respondent Company whereas one sub-agreement was between Taiyo Membrane Corporation (India) and the respondent. The applicant is Taiyo Membrane Corporation Pty. Ltd. which is not a party to any of the said sub-agreements. Besides, it is contended that invocation of the arbitration clause was by the applicant who is not a party to the agreements. On the said basis, it is urged that there is no valid invocation of the arbitration clause and consequently there is no failure on the part of the respondent to appoint the arbitrator so as to warrant an order from the Court under Section 11(6) of the Act. It is also urged that one of the sub-agreements being between two Indian entities i.e. Taiyo Membrane Corporation (India) and the respondent Company any appointment of an arbitrator would fall outside the jurisdiction of this Court under Section 11(6) of the Act.

4. The above objections of the respondent have been sought to be met by the petitioner by filing a rejoinder affidavit to point out that the Letters of Intent with regard to the works allotted under the sub- agreements were issued in favour of Taiyo Membrane Corporation Pty. Ltd. That apart, several correspondences exchanged between the respondent Company and the Taiyo Membrane Corporation Pty. Ltd. with regard to the works covered by the sub-contracts have also been referred to and relied upon to contend that there is no doubt and ambiguity with regard to the fact that the Taiyo Membrane Corporation Pty. Ltd. and Taiyo Membrane Corporation are one and the same entity. Insofar as the agreements executed by Taiyo Membrane Corporation (India) is concerned, it is urged that the above position has also been clarified by subsequent communications exchanged between the respondent Company and Taiyo Membrane Corporation Pty. Ltd. with respect to the work covered by the agreement in which one of the parties is Taiyo Membrane Corporation (India).

5. While it is correct that there is some confusion with regard to the description of the parties in the sub-agreements; the legal notice(s); and the letter(s) of invocation; the L.O.Is. issued in respect of the works and the correspondences exchanged by and between the parties make it clear that the applicant Taiyo Membrane Corporation Pty. Ltd. and Taiyo Membrane Corporation are one and the same entity and the works under the sub- agreements had been allotted by the respondent to the said entity. In this regard it may also be relevant to note that under the Australian Corporation Act, 2001 (Section 57A) a Corporation includes a Company and a proprietary Company Limited by shares is incorporated as Pty. Ltd.

6. In the above circumstances the alleged mis-description will not affect the maintainability of the present application. As already observed, the Court does not find any ambiguity or inconsistency in the description of parties so as to non-suit the applicant-petitioner by dismissing its application on the above basis. The ambiguity, if any, in the description of the parties having been explained and the respondent Company itself having issued L.O.Is. and having exchanged subsequent correspondences with the applicant with regard to the works under the sub- contracts, though executed in the name of the Taiyo Membrane Corporation and Taiyo Membrane Corporation (India), the applicant's petition cannot be held to be not maintainable as urged on behalf of the respondent.

Non Reportable

Supreme Court of India

Taiyo Membrance Corp.P.Ltd vs Shapoorji Pallonji & Co.Ltd on 9 September, 2015

Bench: Ranjan Gogoi

Citation:(2016)1 SCC 736  

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Whether appointment of arbitrator by SIAC can be challenged U/S 11 of Arbitration Act 1996?

 From the relevant facts of the case, it is also clear that the respondents at one time had suggested the name of a retired judge of the Supreme Court of India as the sole Arbitrator, which was not agreed to by the petitioner, who in turn, was inclined to nominate another learned judge. Be that as it may, in such a situation, the respondents by invoking Arbitration clause 30.2 had approached SIAC for appointment of an Arbitrator. This was on 5th September, 2014 i.e. before the present proceeding was instituted by the petitioner. Though the notice of the said request was served on the petitioner on 11th September, 2014, no steps were taken by the petitioner to pre- empt the appointment of a sole Arbitrator by SIAC. Mr. Steven Y.H. Lim came to be appointed as the sole Arbitrator by the SIAC on 29th September, 2014. The petitioner has submitted to the jurisdiction of Mr. Steven Y.H. Lim. Even if it is held that such participation, being under protest, would not operate as an estoppel, what must be acknowledged is that the appointment of the sole Arbitrator made by SIAC and the partial award on the issue of jurisdiction cannot be questioned and examined in a proceeding under Section 11(6) of the Act which empowers the Chief Justice or his nominee only to appoint an Arbitrator in case the parties fail to do so in accordance with the terms agreed upon by them. To exercise the said power, in the facts and events that has taken place, would really amount to sitting in appeal over the decision of SIAC in appointing Mr. Lim as well as the partial award dated 27th November, 2014 passed by him acting as the sole Arbitrator. Such an exercise would be wholly inappropriate in the context of the jurisdiction under Section 11(6) of the Act, a view already expressed by this Court in a recent decision in Antrix Corp. Ltd. vs. Devas Multimedia P. Ltd. [Arbitration Petition NO.20 of 2011 decided on May 10, 2013, reported in (2013) 6 SCR 453].

Supreme Court of India

Pricol Limited vs Johnson Controls Enterprise Ltd & ... on 16 December, 2014

Bench: Ranjan Gogoi

NON-REPORTABLE

     IN THE SUPREME COURT OF INDIA
     CIVIL ORIGINAL JURISDICTION
    ARBITRATION CASE (CIVIL) NO.30 OF 2014

Citation:AIR 2015 SC(supp)471

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When there will be no arbitrable dispute to exercise power U/S 11 of Arbitration Act?

In the decision rendered in Union of India vs. Master Construction

Co.(2011) 12 SCC 349

 this court observed as under:

“18. In our opinion, there is no rule of the absolute

kind. In a case where the claimant contends that a

discharge voucher or no-claim certificate has been

obtained by fraud, coercion, duress or undue influence

and the other side contests the correctness thereof, the

Chief Justice/his designate must look into this aspect to

find out at least, prima facie, whether or not the dispute

is bona fide and genuine. Where the dispute raised by the

claimant with regard to validity of the discharge voucher

or no-claim certificate or settlement agreement, prima

facie, appears to be lacking in credibility, there may not

be a necessity to refer the dispute for arbitration at all.

19. It cannot be overlooked that the cost of arbitration

is quite huge—most of the time, it runs into six and seven

figures. It may not be proper to burden a party, who

contends that the dispute is not arbitrable on account of

discharge of contract, with huge cost of arbitration

merely because plea of fraud, coercion, duress or undue

influence has been taken by the claimant. A bald plea of

fraud, coercion, duress or undue influence is not enough

and the party who sets up such a plea must prima facie

establish the same by placing material before the Chief

Justice/his designate. If the Chief Justice/his designate

finds some merit in the allegation of fraud, coercion,

duress or undue influence, he may decide the same or

leave it to be decided by the Arbitral Tribunal. On the

other hand, if such plea is found to be an afterthought,

make-believe or lacking in credibility, the matter must be

set at rest then and there.

In our considered view, the plea raised by the respondent is bereft of

any details and particulars, and cannot be anything but a bald assertion.

Given the fact that there was no protest or demur raised around the time or

soon after the letter of subrogation was signed, that the notice dated

31.03.2011 itself was nearly after three weeks and that the financial

condition of the respondent was not so precarious that it was left with no

alternative but to accept the terms as suggested, we are of the firm view that

the discharge in the present case and signing of letter of subrogation were

not because of exercise of any undue influence. Such discharge and signing

of letter of subrogation was voluntary and free from any coercion or undue

influence. In the circumstances, we hold that upon execution of the letter of

subrogation, there was full and final settlement of the claim. Since our

answer to the question, whether there was really accord and satisfaction, is

in the affirmative, in our view no arbitrable dispute existed so as to exercise

power under section 11 of the Act. The High Court was not therefore

justified in exercising power under Section 11 of the Act.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10784 OF 2014 @

SPECIAL LEAVE PETITION (CIVIL) NO.24652 OF 2013

NEW INDIA ASSURANCE COMPANY LTD …. Appellant

Versus

GENUS POWER INFRASTRUCTURE LTD. …. Respondent

Uday U. Lalit, J.

Dated:December 04, 2014

Citation:AIR 2015 SC (SUPP)136

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