1992 (4) TMI 261 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the appeal under Clause 15 of the Letters Patent in light of Section 39 of the Arbitration Act, 1940.
2. Jurisdiction of the High Court to entertain the petition under Section 33 of the Arbitration Act, 1940.
3. Existence and validity of the arbitration agreement between the parties.
4. Balance of convenience and jurisdiction of a foreign court or tribunal.

Issue-wise Detailed Analysis:

1. Maintainability of the Appeal:
The appeal's maintainability was questioned based on Section 39 of the Arbitration Act, 1940, which restricts appeals to specific orders. The court noted that Clause 15 of the Letters Patent allows appeals to the High Court from judgments of a single judge. The court referenced Shah Babulal Khimji v. Jayaben, which clarified that certain provisions of the Code of Civil Procedure apply to Letters Patent Appeals, but the bar in Section 104 of the CPC does not inhibit the appellate jurisdiction under Clause 15 of the Letters Patent. The court also considered the Full Bench decision in Mary Thomas v. Dr. K.E. Thomas, which upheld the Letters Patent jurisdiction despite the creation of exclusive Family Courts. The Supreme Court's judgment in Union of India v. Mahindra Supply Co. was also considered, which held that the Arbitration Act must be construed without assuming it did not intend to alter the law relating to appeals. The court concluded that the appeal should be referred to a Full Bench to determine whether Section 39(1) restricts the court's power under Clause 15 of the Letters Patent.

2. Jurisdiction of the High Court:
The original civil jurisdiction of the High Court was preserved under Clause 12 of the Letters Patent, allowing the court to try suits of every description within its local limits. The court noted that the application under Section 33 of the Arbitration Act is entertained as a suit, and the judgment passed therein attracts appellate jurisdiction under Clause 15 of the Letters Patent. The court discussed the historical context of arbitration proceedings and the consolidation of arbitration laws under the Arbitration Act, 1940. The court also referenced various judgments, including the Supreme Court's decision in Union of India v. Mohindra Supply Co., which clarified that the right to appeal under the Letters Patent is restricted by Section 39 of the Arbitration Act.

3. Existence and Validity of the Arbitration Agreement:
The court considered the petition filed under Section 33 of the Arbitration Act, seeking a declaration that there was no arbitration agreement between the parties. The single judge dismissed the petition, finding that the correspondence between the parties established the terms of the contract, including the arbitration clause. The court noted that the Arbitration Act does not require the arbitration agreement to be signed by the parties, as long as the terms are reduced to writing and the agreement is established. The court referenced several Supreme Court judgments, including Jugal Kishore v. Goolbai and Banarsi Das v. Cane Commissioner, U.P., which held that an arbitration agreement in writing does not need to be signed by the parties.

4. Balance of Convenience and Jurisdiction of Foreign Court or Tribunal:
The court considered the Indian Company's contention that it would face hardship and inconvenience if the arbitration were conducted in a foreign country. The court referenced various judgments, including Black Sea State Steamship Line v. Minerals and Metals Trading Corporation of India Ltd. and Far East Steamship Line v. Union of India, which held that the enforcement of foreign jurisdiction clauses depends on the balance of convenience and the ends of justice. The court noted that the discretion to enforce such clauses should be exercised judicially, considering factors such as the location of evidence, the proper law governing the contract, and the connection of the parties to the foreign jurisdiction.

Conclusion:
The court concluded that the single judge failed to consider the provisions of Section 33 of the Arbitration Act properly and did not provide adequate opportunity for the parties to present evidence. The court allowed the appeal, set aside the single judge's order, and remitted the matter for fresh consideration, allowing the parties to adduce evidence and considering the principles evolved by various judicial pronouncements. The court also rejected an oral prayer for a certificate for leave to appeal to the Supreme Court, finding no question of law or public importance that had not already been decided by the Supreme Court.