Supreme Court: Non- stamping or inadequate stamping of an arbitration agreement is merely a curable defect

Thereafter, the Constitution Bench recorded its conclusions in paragraph 224 as under:

224. The conclusions reached in this judgment are summarised below:

a. Agreements which are not stamped or are inadequately stamped are inadmissible in evidence Under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable;

b. Non-stamping or inadequate stamping is a curable defect;

c. An objection as to stamping does not fall for determination Under Sections 8 or 11 of the Arbitration Act. The Court concerned must examine whether the arbitration agreement prima facie exists;

d. Any objections in relation to the stamping of the agreement fall within the ambit of the Arbitral Tribunal; and

e. The decision in N.N. Global (2)10 and SMS Tea Estates11 are overruled. Paras 22 and 29 of Garware Wall Ropes12 are overruled to that extent.

21. The learned Senior Advocate for the mine owner also urged that relegating the stamping objection to the post- award stage Under Section 34 of the A and C Act would compel the mine owner to endure prolonged and expensive arbitral proceedings merely to vindicate what he characterises as a mandatory fiscal objection going to the root of the agreement, while the remedy available Under Section 34 is too circumscribed to adequately address such a fundamental defect. This Court is unable to accept this submission, as it derives its force only if non-stamping or inadequate stamping of an agreement is treated as a fatal, jurisdictional infirmity that vitiates the agreement at its inception. That premise, however, no longer holds good in law. The Constitution Bench in Re: Interplay (supra), has unequivocally held that non- stamping or inadequate stamping of an arbitration agreement is merely a curable defect. In paragraph 48, it was held as under:

48. Section 35 of the Stamp Act is unambiguous. It stipulates, "No instrument chargeable with duty shall be admitted in evidence..." The term "admitted in evidence" refers to the admissibility of the instrument. Sub-section (2) of Section 42, too, states that an instrument in respect of which stamp-duty is paid and which is endorsed as such will be "admissible in evidence." The effect of not paying duty or paying an inadequate amount renders an instrument inadmissible and not void. Non-stamping or improper stamping does not result in the instrument becoming invalid. The Stamp Act does not render such an instrument void. The non-payment of stamp duty is accurately characterised as a curable defect. The Stamp Act itself provides for the manner in which the defect may be cured and sets out a detailed procedure for it. It bears mentioning that there is no procedure by which a void agreement can be 'cured'.

Hence, this Court drew a careful and fundamental distinction between the admissibility of an instrument in evidence and its validity and enforceability in law, holding that the scheme of the Stamp Act is concerned only with admissibility and mere non-stamping or inadequate stamping does not render an agreement void. The agreement survives non-stamping or insufficient stamping, and the defect can be cured by getting the agreement sufficiently stamped at any stage, whereupon it becomes admissible in the eyes of law. It is the arbitral tribunal that is empowered to deal with this issue in the first instance. The remedy of having the Tribunal satisfy itself on the question of stamping Under Section 16, with the award remaining open to challenge Under Section 34 at a later stage, is not inadequate. The apprehension of the mine owner, therefore, rests on a legal position that stands overruled.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8218 of 2026 

Decided On: 27.05.2026

Tarini Prasad Mohanty Vs. Sunflag Iron and Steel Company Limited

Hon'ble Judges/Coram:

J.K. Maheshwari and A.S. Chandurkar, JJ.

Author: A.S. Chandurkar, J.

 Citation: 2026 INSC 566,MANU/SC/0573/2026

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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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Supreme court: Existence of Arbitration Agreement in Arbitration Act Includes aspect Of Validity Of Agreement

 We now proceed to examine the question, whether the word 'existence' in Section 11 merely refers to contract formation (whether there is an arbitration agreement) and excludes the question of enforcement (validity) and therefore the latter falls outside the jurisdiction of the court at the referral stage. On jurisprudentially and textualism it is possible to differentiate between existence of an arbitration agreement and validity of an arbitration agreement. Such interpretation can draw support from the plain meaning of the word "existence'. However, it is equally possible, jurisprudentially and on contextualism, to hold that an agreement has no existence if it is not enforceable and not binding. Existence of an arbitration agreement presupposes a valid agreement which would be enforced by the court by relegating the parties to arbitration. An agreement evidenced in writing has no meaning unless the parties can be compelled to adhere and abide by the terms. A party cannot sue and claim rights based on an unenforceable document. Thus, there are good reasons to hold that an arbitration agreement exists only when it is valid and legal. A void and unenforceable understanding is no agreement to do anything. Existence of an arbitration agreement means an arbitration agreement that meets and satisfies the statutory requirements of both the Arbitration Act and the Contract Act and when it is enforceable in law.

Existence and validity are intertwined, and arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements. Invalid agreement is no agreement.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2402 of 2019, 

Decided On: 14.12.2020

Vidya Drolia and Ors. Vs.  Durga Trading Corporation and Ors.

Hon'ble Judges/Coram:

N.V. Ramana, Sanjiv Khanna and Krishna Murari, JJ.

Citation: MANU/SC/0939/2020

Read full judgment here: Click here

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Delhi HC: Court may issue interim orders against the third parties to arbitration only in exceptional circumstances

 Undoubtedly, section 9 provides that the court shall have the same powers for making interim orders under section 9 as a civil court has for the purpose of, and in relation to, any proceedings before it, and the powers of a civil court in this regard are very wide. The civil courts as and when required, and deemed appropriate in the facts and circumstances of a particular case have been making interim orders in respect of third parties, such as: interim injunction restraining third party-banks from honouring bank guarantees; attaching defendant's monies/property in hands of third party trustee, debtor, agent etc; restraining third party-subsequent transferee/person claiming rights in suit property from disposing of the same, and the like. As a corollary, the power of the court to issue interim orders under section 9 cannot be confined only to the parties to arbitration agreement. However, a significant parameter inherent in section 9, for exercise of this power against a non-signatory to arbitration agreement, is that the purpose of section 9 is to aid arbitration between the parties thereto, and the interim orders there under have to be with regard to subject matter of arbitration/in connection with the arbitral proceedings. In this context, it is relevant to draw a distinction between orders granting interim relief against a party to the arbitration agreement which incidentally affects a third party, on one hand, and orders granting relief directed against a third party, on the other. While the former is ordinarily acceptable as being within the scope of section 9, the power with respect to the latter should be exercised sparingly. For instance, an order appointing a third party as a receiver or guardian of a minor/person of unsound mind is not an order against the third party, or detrimental to its rights as such. Rather, it is a relief granted to the petitioner in support of the arbitral proceedings and affects the party to the arbitration agreement. Similarly, when a subsequent transferee, or a person claiming title under a party to arbitration is ordered to maintain status quo, or not to dispose of property which is subject matter of arbitration, it is again ancillary to arbitral proceedings in as much, as, it is for protection of the subject matter of arbitration that the order is passed. An injunction, or order of attachment with respect to the properties belonging to/monies owed to a party to arbitration, but in hands of a third party for/on behalf of the said party, is effectively a relief against the said party, which incidentally affects the third party. Pertinently, it is expressly provided in the C.P.C., that attachment before judgment shall not affect the prior existing rights of third parties in the property of the defendant sought to be attached. Injunction against a third party bank from honouring a bank guarantee is consequential to interim relief of restraining a party from encashing the same against the petitioner. To sum up, the court may issue interim orders against the third parties to arbitration only in exceptional circumstances which are such that denial thereof might frustrate the petitioner's rights in arbitration; defeat the very object of arbitration between the parties thereto; render the arbitration proceedings infructuous; lead to gross injustice; and/or, leave the petitioner remediless, depending on facts of each case."

IN THE HIGH COURT OF DELHI

O.M.P. (I) (COMM) No. 35/2020 and I.A. 3251/2020

Decided On: 10.06.2020

Blue Coast Infrastructure Development Pvt. Ltd.  Vs.  Blue Coast Hotels Ltd. and Ors.

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What is distinction between power of court and arbitrator to grant interim relief to party to arbitration against third party?

Reading of Section 9 of the Act as well as the judgments in Value Advisory (supra) and Gatx India (supra) makes it clear that the scope of power of a Court under Section 9 of the Act is not limited to parties to an Arbitration Agreement and the Court can issue interim directions even against a third party. The distinction between the powers under Section 9 of the Act and Section 17 of the Act has a clear rationale. An Arbitrator is a creature of the contract between the parties and therefore cannot venture outside the contract to issue directions to parties who are non-parties to the Arbitration Agreement. This limitation is not applicable to a Court exercising power under Section 9 of the Act.

IN THE HIGH COURT OF DELHI

O.M.P. (I) (COMM) No. 35/2020 and I.A. 3251/2020

Decided On: 10.06.2020

Blue Coast Infrastructure Development Pvt. Ltd.  Vs.  Blue Coast Hotels Ltd. and Ors.

Hon'ble Judges/Coram:

Jyoti Singh, J.

Citation: MANU/DE/1259/2020

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Supreme Court: Court can refer Suit for cancellation of the deed on the ground of fraud U/S 31 of the Specific Relief Act to Arbitration

1) It is submitted that while considering the application

u/s 8 of Arbitration and Conciliation Act, 1996, the court

has to consider an issue that whether there exists any

Arbitration Agreement between the parties. Such right

is certainly vested in Civil Court. The Plaintiff is

challenging the legality of agreement dated 20.05.2006

on the ground that the same is obtained by fraud and

is therefore seeking further declaration that the said

agreement is null and ab initio void. As such, the very

Arbitration clause as contained in the said agreement

is not enforceable. In spite of the fact that Section 16

of the said Act empowers the Arbitral Tribunal to

decide its own jurisdiction in view of particular

circumstances narrated in the plaint, the present

application deserves to be rejected.”

v. By a judgment dated 19.07.2011, the Additional Judge, Small

Causes Court, Pune, after hearing both sides, held as follows:

“11. After perusing the above mentioned cited cases, it

shows that when there is a clause of arbitration it is

mandated on the Civil Court to refer the dispute and

parties for arbitration as per agreement. In present

case the plaintiffs have materially contention about

playing fraud by Defendant No.3 but there is no any

contents in agreement as alleged by plaintiff in plaint

about keeping faith on Defendant No.3. It shows about

signing by Defendant No.3 for agreement dated

20.05.2006 and he was also party to said agreement.

The plaintiff alleged about playing fraud after resigning

by Defendant No.3 from partnership firm of Defendant

No.1 and signing the confirmation deed dated

13.07.2006 but as per Partnership Act remedy is

provided. Moreover, from the documents, it shows that

the confirmation deed dated 13.07.2007 was executed

by Defendant No.3 as Authorized Partner of M/s

Regency Mahavir Properties and another partner Dilip

Jain. The fraud alleged by the plaintiff is in respect of

the documents for which the remedy is also provided.

After considering the arbitration clause I find that the

application is to be allowed and the disputes have to

be referred for arbitration. Hence, I pass the following

order:

1) Application is allowed.

2) The plaintiff is directed to get the alleged dispute

resolved through the process of arbitration by

referring the plaintiff to invoke the process of

arbitration as per the arbitration clause 14

mentioned in the agreement dated 20.05.2006.”

Finding thus, the learned Judge referred the parties to arbitration.

2) High court dismissed writ petition with the result that the

parties stood referred to arbitration.

3) When sections 34 and 35 are seen, the position becomes even

clearer. Unlike section 31, under section 34, any person entitled to

any legal character may institute a suit for a declaration that he is

so entitled. Considering that it is possible to argue on a reading of

this provision that the legal character so declared may be against

the entire world, section 35 follows, making it clear that such

declaration is binding only on the parties to the suit and persons

claiming through them, respectively. This is for the reason that

under section 4 of the Specific Relief Act, specific relief is granted

only for the purpose of enforcing individual civil rights. The principle

contained in section 4 permeates the entire Act, and it would be

most incongruous to say that every other provision of the Specific

Relief Act refers to in personam actions, section 31 alone being out

of step, i.e., referring to in rem actions.

25. The reasoning in the aforesaid judgment would again expose the

incongruous result of section 31 of the Specific Relief Act being

held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non-executant must approach the

Court under section 34 of the Specific Relief Act, 1963.

Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an

executant of the deed, being under section 31, would somehow

convert the suit into a suit being in rem. All these anomalies only

highlight the impossibility of holding that an action instituted under

section 31 of the Specific Relief Act, 1963 is an action in rem.

26. Given this finding of law, it is clear that the judgments of the District

Court and the High Court in this case need no interference. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5147 OF 2016

DECCAN PAPER MILLS CO. LTD. Vs  REGENCY MAHAVIR PROPERTIES 

R.F. Nariman, J.
Dated:August 19, 2020.

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Whether the court can infer an arbitration agreement from invoices/bills, which contained an Arbitration clause?

In Shakti Bhog Food Limited v. Kola Shipping Limited (Supra), it was observed by Supreme Court;

We would want to reiterate that as far as the provision of Section 7 of the Act is concerned, an arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement and furthermore an arbitration is considered to be in writing if it is contained in a document signed by the parties or in a exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement or an exchange of statement of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. So from the provisions of Section 7, it is clear that a charter party agreement need not be in writing signed by both parties and this could as well be made out from the acts of the parties to the agreement by way of their exchange of letters and information through fax, e-mails, etc.

23. In the case in hand, admittedly there had been business transactions between the parties. Respondents have not placed any document with regard to these transactions, On the other hand, appellant has placed various invoices/bills before the Arbitrator, which contained the clause with regard to the arbitration.

24. Clause 5 mentioned on various invoices/bills is an arbitration agreement between the parties. As respondents have themselves admitted in their cross-objections that they had the business dealing with the appellant and have made various payments to the appellant by demand draft after purchasing the goods in question on credit basis. Since respondents admits the purchase of goods in question, it was their duty to have placed on record the invoices/bill through which they had purchased the goods from the appellant. In the absence of any document being placed by the respondents before the Arbitrator, it is apparently clear that respondents received the goods only through the invoices/bills which were filed by the appellant before the Arbitrator. Thus, there was an arbitration agreement between the parties as per Clause 5 of the invoice.

IN THE HIGH COURT OF DELHI

FAO. No. 59/2002

Decided On: 17.11.2009

 Kailash Nath Agarwal  Vs.  Aaren Exports and Ors.

Hon'ble Judges/Coram:

Vidya Bhushan Gupta, J.

Citation: MANU/DE/2916/2009

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Whether civil suit is maintainable to challenge existence or validity of arbitration agreement?

 In the Judgment of this Court, in the case of
Kvaerner Cementation India Limited V. Bajranglal
Agarwal and Another1, this Court has examined the
similar issue and held that any objection with respect
to existence or validity of the arbitration agreement,
can be raised only by way of an application under
Section 16 of the Act and Civil Court cannot have
jurisdiction to go into such question.
14. Having regard to aforesaid judgment of this Court
and various communications between the parties, we are
in agreement with the submission made by the learned
senior counsel for the appellant that, if the first
respondent wants to raise an objection with regard to
existence or validity of the arbitration agreement, it
is open for the first respondent to move an application
before the arbitrator, but with such plea, he cannot
maintain a suit for declaration and injunction. Though
the Trial Court rightly rejected the interim injunction
sought for by the first respondent, the same is
erroneously reversed by the learned Additional District
Judge and such order is confirmed by the High Court, by
the impugned order.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6605 OF 2019

National Aluminium Company Limited Vs  Subhash Infra EngineersPvt. Ltd. 

R. Subhash Reddy, J.
Dated:August 23, 2019

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Whether arbitration agreement not signed by parties is valid?

Reading the provisions it can safely be concluded that an arbitration agreement even though in writing need not be signed by the parties if the record of agreement is provided by exchange of letters, telex, telegrams or other means of telecommunication. Section 7(4)(c) provides there can be an arbitration agreement in the exchange of statements of claims and defence in which the existence of the agreement is alleged by one party and not denied by the other. If it can be prima facie shown that the parties are at ad idem, then mere fact of one party not signing the agreement cannot absolve himself from the liability under the agreement. In the present day of E-commerce, in cases of internet purchases, tele purchases, ticket booking on internet and in standard forms of contract, terms and conditions are agreed upon. In such agreements, if the identity of the parties is established, and there is a record of agreement it becomes an arbitration agreement if there is an arbitration clause showing ad idem between the parties. Therefore, signature is not a formal requirement Under Section 7(4)(b) or 7(4)(c) or under 7(5) of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11438 of 2014 

Decided On: 16.12.2014

 Govind Rubber Ltd.  Vs.  Louids Dreyfus Commodities Asia P. Ltd.

Hon'ble Judges/Coram:

M. Yusuf Eqbal and R. Banumathi, JJ.

Citation: (2015) 13 SCC 477.

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Whether written arbitration agreement can be superseded by any oral demand or agreement?

A perusal of the arbitration clause reveals that the same contemplated the appointment, only of a Sole Arbitrator, by the Respondent. It is indeed strange as to how a three member tribunal came to be constituted by the Respondent. The Respondent appears to have "played safe" in the words of the learned counsel for the Respondent. There is, however, nothing on record to show that the Petitioner indeed demanded for constitution of a three member tribunal. It is nigh possible that the Respondent decided to adopt a fair attitude by appointing a three member tribunal, however, if a three member tribunal had to be appointed, then the same ought to have been done with the consent of the Petitioner and in accordance with the provisions of the Act. The arbitration agreement, as per the 1996 Act, has to be in writing and since the arbitration clause, which is a part of the contract, was in writing, the same could not have been superseded by any oral demand or agreement. The Petitioner may have been clever in orally demanding a three member tribunal but it is clear that the procedure adopted by the Respondent is impermissible.

IN THE HIGH COURT OF DELHI

O.M.P. (COMM) 136/2017

Decided On: 27.08.2018

 Mother Boon Foods Pvt. Ltd. Vs.  Mindscape One Marketing Pvt. Ltd.

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

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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 Arbitration award can be enforced against non signatory to arbitration agreement?

The present case relates to a post award situation. The enforcement of the arbitral award has been sought against the Appellant on the basis that it claims under KCP and is bound by the award. Section 35 of the Arbitration and Conciliation Act 1996 postulates that an arbitral award "shall be final and binding on the parties and persons claiming under them respectively". The expression 'claiming under', in its ordinary meaning, directs attention to the source of the right. The expression includes cases of devolution and assignment of interest (Advanced Law Lexicon by P. Ramanatha Aiyar15 ). The expression "persons claiming under them" in Section 35 widens the net of those whom the arbitral award binds. It does so by reaching out not only to the parties but to those who claim under them, as well. The expression "persons claiming under them" is a legislative recognition of the doctrine that besides the parties, an arbitral award binds every person whose capacity or position is derived from and is the same as a party to the proceedings. Having derived its capacity from a party and being in the same position as a party to the proceedings binds a person who claims under it. The issue in every such a case is whether the person against whom the arbitral award is sought to be enforced is one who claims under a party to the agreement.

22. The submission which was urged on behalf of the Appellant, proceeds on the basis that since the Appellant was not impleaded as a party to the arbitral proceedings, proceedings for the enforcement of the award will not lie against it. This line of submissions clearly misses the central facet of Section 35, which is that a person who claims under a party is bound by the award. The fact that the Appellant was not a party to the arbitral proceedings will not conclude the question as to whether the award can be enforced against it on the ground that it claims under a party. Essentially, the Court is called upon to consider whether the test embodied in Section 35 is fulfilled in the present case, so as to bind the Appellant.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 10025-10026 of 2017

Decided On: 24.04.2018

Cheran Properties Limited  Vs.  Kasturi and Sons Limited and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: (2018) 16 SCC 413

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Whether there can be valid assignment of arbitration agreement?

This Court in the case of Bestech India Private Ltd. v. MGF Developments Ltd.(2009) 161 DLT 282, held that if a Contract is assignable, an Arbitration Clause will follow the Assignment of the Contract. This judgment was followed by the Bombay High Court in DLF Power Limited v. Mangalore Refinery & Petrochemicals Limited 2016 SCC OnLine Bom 5069.

17. Rajasthan High Court in Aerens Goldsouk International Co. Ltd. v. Samit Kavdia2009 (1) R.A.J. 128 (Raj), relying upon Russell on Arbitration held that an Arbitration Agreement will bind not only the actual parties to it, but also an assignee of a Contract containing it.

22. In view of the above, in my opinion, the Assignment Deed transferred all rights, including the right to seek Arbitration, from respondent no. 3 to the petitioner and the Sole Arbitrator has failed to exercise the jurisdiction vested in him under the Arbitration Agreement. The Impugned Award is, therefore, liable to be set aside.

In the High Court of Delhi at New Delhi

(Before Navin Chawla, J.)

Kotak Mahindra Bank v. Mr. S. Nagabhushan 

OMP (COMM) 341/2017

Decided on January 24, 2018,

Citation: 2018 SCC OnLine Del 6832

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Whether arbitration agreement specifying limitation period lesser than statutorily available to raise claim is void?

Based on the aforesaid clause, the High Court had recorded its conclusion as under:

In view of the specific provision in the arbitration clause for raising the claim within the same year and to have it settled by the arbitral Tribunal within the specified time, the above request for arbitration was beyond the period prescribed in the arbitration clause. When the arbitration clause itself prescribes a time limit for raising the disputes by appointing an arbitral Tribunal and to have it settled within 30 days, the same procedure should be followed or adopted within the time specified. The applicant did not make a demand for appointment of an arbitral Tribunal within the stipulated time. The notice itself was issued long after the time stipulated in the arbitration agreement. It appears that the company was closed down and the Company wanted to dispose of the raw materials and the State did not permit as materials had been supplied to the Company at a concessional rate. It was at that time the notice was issued for the arbitration.

Having perused Clause 9 of the supplementary agreement dated 27.10.1988, we are of the view, that the interpretation placed by the High Court on Clause 16, was wholly misconceived. The aforesaid clause, did not postulate the period within which a claim could have been raised by the parties to the contractual agreements. Even otherwise, we are of the view, that in terms of Section 28 of the Indian Contract Act, 1872, such a stipulation in a contractual obligation would not be valid and binding. Section 28 of the Act is reproduced below:

28. Agreements in restraint of legal proceedings, void.--Every agreement,

(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or

(b) which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights,

is void to that extent.

Section 28(b) unequivocally provides, that an agreement which extinguishes the right of a party on the expiry of a specified period, would be void. Therefore, even if a restricted period for raising an arbitral dispute had actually been provided for (as was determined, in the impugned order), the same would have to be treated as void.

IN THE SUPREME COURT OF INDIA

C.A. No. 3180 of 2007

Decided On: 19.04.2017

Grasim Industries Ltd. Vs.  State of Kerala

Hon'ble Judges/Coram:

J.S. Khehar, C.J.I., Dr. D.Y. Chandrachud and Sanjay Kishan Kaul, JJ.

Citation: (2018) 14 SCC 265

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Whether parties can waive forum selection clause in arbitration proceeding?

 The key question which arises for consideration in this case is whether the forum selection clause can be said to be effective and, if so, whether it is binding on the parties. The second aspect of the question may be answered first. Every clause in an agreement between the parties is binding on the parties, but any covenant is also capable of being waived. If the parties have agreed to go to a particular Court, but one party commits breach of such agreement and goes to another Court, unless an objection in such regard is raised at the earliest opportunity by the other party, the Court cannot suo motu enforce the forum selection clause on the parties to the contract. A forum selection clause, just like most other clauses contained in an agreement between two parties, is capable of being waived.

IN THE HIGH COURT OF CALCUTTA

GA 1329 of 2018, APO 163 of 2018 and AP 924 of 2017

Decided On: 06.09.2018

Hirok Chowdhury Vs. Khagendra Nath Mandal and Ors.

Hon'ble Judges/Coram:

Sanjib Banerjee and Abhijit Gangopadhyay, JJ.

Citation: AIR 2018 Cal 272

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Whether application for enforcement of foreign arbitral award can be dismissed if necessary documents were not filed along with application?

 It is relevant to note that there would be no prejudice
caused to the party objecting to the enforcement of the
Award by the non-filing of the arbitration agreement at the
time of the application for enforcement. In addition, the
requirement of filing a copy of the arbitration agreement
under the Model Law which was categorized as a formal
requirement was dispensed with. Section 48 which refers
to the grounds on which the enforcement of a foreign
award may be refused does not include the non-filing of the
documents mentioned in Section 47. An application for
enforcement of the foreign award can be rejected only on
the grounds specified in Section 48. This would also lend
support to the view that the requirement to produce
documents mentioned in Section 47 at the time of
application was not intended to be mandatory.
21. Reading the word “shall” in Section 47 of the Act as
“may” would only mean that a party applying for

enforcement of the award need not necessarily produce
before the Court a document mentioned therein “at the
time of the application”. We make it clear that the said
interpretation of the word “shall” as “may” is restricted
only to the initial stage of the filing of the application and
not thereafter.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No .4834 of 2007

P.E.C. LIMITED Vs AUSTBULK SHIPPING SDN BHD

L. NAGESWARA RAO, J.
Dated:NOVEMBER 14, 2018.
Citation: 2019(4) MHLJ 518

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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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Whether court can refer dispute to arbitration even if non signatory to arbitration agreement is party to suit?

The next contention raised by learned counsel for Respondent Nos. 1 and 2 is about the CIDCO, i.e. Respondent No. 3 herein, not being party to the 'Arbitration Agreement'. Again this contention was not raised before the Trial Court, but then, in order to resolve the dispute, even if this contention is taken up at this stage, as both the parties have argued thereon, the perusal of the plaint clearly goes to show that, Respondent No. 3 - CIDCO is merely a formal party. Only a consequential relief of injunction is claimed against the CIDCO, it being the owner of the said plot.

25. It is pertinent to note that, in the similar facts of the case, in Special Civil Suit No. 252 of 2008, the Trial Court has allowed the 'Reference', under Section 8 of the Arbitration Act, to the 'Arbitrator' and when the said 'Reference' was challenged before this Court in the case of Narayan Shankar Thakur v. Sitabai Sitaram Thakur (Since Deceased), through Legal Heirs, in Writ Petition No. 1882 of 2010, dated 1st August 2013, on the ground that, the CIDCO was a party to the Suit, but was not party to the 'Agreement', it was held by this Court that, as the CIDCO is the owner of the property, it has been joined as necessary and proper party in the Suit. As the specific performance of the 'Agreement of Sale' is sought after obtaining allotment from the CIDCO, it was necessary to include CIDCO as party to the Suit, but as no relief was claimed against the CIDCO and there was specific averment in the plaint that Plaintiff has no claim against it, reference made to the 'Arbitrator' by the Trial Court cannot be set aside. Though the said order of this Court was challenged in Special Leave Petition No. 27231 of 2013, the said Special Leave Petition came to be dismissed.

26. Here in the case, though it is true that, a relief is claimed against the CIDCO, it is merely of an ancillary or of a consequential nature. Such relief can be granted or refused, depending on whether Plaintiff's Suit for specific performance can be decreed or not. As held by another Single Bench of this Court in the case of M/s. Fiza Construction v. Smt. Parvati K. Thakur and Ors., in Writ Petition No. 943 of 2010, dated 10th February 2010, CIDCO being a Statutory Authority, would be required to consent to the transfer, once the Suit is decreed. It is, therefore, a formal party and would abide by the decision of the 'Arbitrator' and the decision of the 'Court'. Like in the said Suit, the main dispute in this case is also between the Petitioner and Respondent No. 1.

IN THE HIGH COURT OF BOMBAY

Civil Writ Petition (Stamp) No. 35221 of 2017

Decided On: 20.03.2018

 Suman Baburao Thapa Vs.  Jigar K. Mehta and Ors.

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Whether Unsigned Arbitration Agreement is valid?

 In addition, we may indicate that the law in this behalf,
in Jugal Kishore Rameshwardas vs. Mrs. Goolbai Hormusji, AIR
1955 SC 812, is that an arbitration agreement needs to be in
writing though it need not be signed. The fact that the
arbitration agreement shall be in writing is continued in the
1996 Act in Section 7(3) thereof. Section 7(4) only further
adds that an arbitration agreement would be found in the
circumstances mentioned in the three sub-clauses that make up
Section 7(4). This does not mean that in all cases an
arbitration agreement needs to be signed. The only prerequisite
is that it be in writing, as has been pointed out in
Section 7(3).
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10800-10801 OF 2018
(Arising out of SLP (C) Nos. 31101-31102/2016)

M/S CARAVEL SHIPPING SERVICES PVT. LTD Vs M/S PREMIER SEA FOODS EXIM PVT. LTD.

Dated:October 29, 2018.
R.F. Nariman, J.

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Whether arbitration appeal filed by third party is maintainable?

Insofar as the submission of the learned counsel for the respondent no. 2 that since the petitioners or the applicants were admittedly not the parties to the arbitration agreement, none of them could be a party to the arbitration proceedings before the learned arbitrator is concerned, there is no dispute about this proposition. However, since the order passed by the learned arbitrator for interim measures at the behest of one of the parties to the arbitration agreement which would prejudice the right, title and interest of a third party, such third party who is not allowed to seek impleadment in the arbitration proceedings or to apply for modification and/or vacating the order of interim reliefs, will have a right of appeal under section 37 of the Arbitration & Conciliation Act, 1996 against such order. I am not inclined to accept the submission made by the learned counsel for the respondent no. 2 that there is any statutory bar against a third party from filing an appeal under section 37 of the Arbitration Act though an order is passed by the arbitral tribunal in the proceedings filed by the parties to the arbitration agreement under the provisions of the Arbitration & Conciliation Act, 1996 would affect the rights of such third party. 

IN THE HIGH COURT OF BOMBAY

Arbitration Petition Nos. 619, 633, 642, 621, 622, 623, 668, 667, 643, 646, 574, 634 and 620 of 2017

Decided On: 31.08.2018

 Prabhat Steel Traders Pvt. Ltd. Vs. Excel Metal Processors Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

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