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Supreme Court, while allowing the present petition, appointed Justice Sanjay Kishan Kaul, Former Judge of the Supreme Court of India, to act as the sole arbitrator.
Punjab and Haryana High Court commented that “Such an approach would defeat the intent and objective behind the incorporation of the Act of 1996, which provides for a speedy and efficacious resolution of disputes.”
The Calcutta High Court emphasised the need for a clear and unequivocal expression of intent to arbitrate.
Bombay High Court held the instant applications under Section 11 of Arbitration Act as non-maintainable and dismissed the said applications.
“The Court observes that the ‘contrary indicia’ is clearly reflected in the present case, because the seat was mentioned as Bikaner and venue was mentioned as New Delhi.”
High Courts are superior Courts of records, and the power to review orders is not restricted by the provisions of the Arbitration and Conciliation Act, 1996.
“The Court exercised the powers conferred under Section 11 of the Arbitration and Conciliation Act, 1996 and appointed, Jai Prakash Narayan Purohit, Retired Additional District Judge, as the sole Arbitrator to adjudicate the dispute between the parties.”
Without questioning the validity and legality of the arbitration clause, the Calcutta High Court appointed an Arbitrator to decide the issues raised by both the parties.
The Court opined that the mere potential or presence of criminal proceedings deriving from the same circumstances would not exclude the issue from being resolved through arbitration.
Delhi High Court granted liberty to the petitioner to file a fresh legal action for the same relief once the moratorium is lifted or varied.
Delhi High Court was of the view that it would be within its right to dismiss the petition at the threshold if the petition is not maintainable, otherwise an unacceptable position of law would arise where despite a petition being not maintainable due to lack of territorial jurisdiction would need to be entertained.
An arbitration agreement that is embedded within a contract would always be considered as a separate and severable clause, and despite a reference being made by the court the arbitrator is free to decide on their jurisdiction including the existence of the arbitration agreement in accordance with the kompetenz-kompetenz principle
Any document in writing exchanged between the parties which provide a record of the agreement and in respect of which there is no denial by the other side, would squarely fall within the ambit of Section 7 of the Arbitration and Conciliation Act, 1996 and would amount to an arbitration clause.
The Court, while exercising powers under Section 11 of the Act, can refuse to refer the parties to arbitration only where “it is manifestly and ex facie certain that the arbitration agreement is nonexistent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny.”
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