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TMI Blog2000 (9) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the nature of the powers that are exercised under section 11(6). In this view of the matter, I do not think it would be possible to accede to the defence raised by the respondent. Keeping open all questions raised in this case, I think it would be appropriate to refer the matter to arbitration - ARBITRATION PETITION NOS. 19 TO 21 OF 2000 - - - Dated:- 27-9-2000 - S. RAJENDRA BABU, J. Dr. A.M. Singhvi, A.K. Chitale, S.Y. Chitale, J. Desai, A.P. Medh, Sandeep Sethi, Ms. Pratiba M. Singh, Maninder Singh, Niraj Sharma, M. Mannan, Yashank Adhyaru, Ashish Wad, Manoj Wad and Ms. Niharika Bahl for the Appearing Parties. JUDGMENT Rajendra Babu, J. - These three petitions have been filed under section 11(5) of the Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters of credit for ensuring payment of the balance quantity of about 80 tons of Ferro Vanadium. There was some correspondence between the parties subsequently. The respondent, on 25-2-1999, denied the liability to make payment and the very existence of the sales contract dated 20-8-1998 purportedly entered into between the parties on the basis that the sales contract has not been signed by it or on its behalf and thereafter stated that the sales contract, having not been signed, there existed no dispute and hence no arbitration would be accepted. The petitioner contends that the fact that the respondent opened a letters of credit for 20 tons of Ferro Vanadium itself would indicate that the respondent had acted upon the terms of the sales c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitral Tribunal to rule on its own as well as on objection with regard to the existence or validity of the arbitration agreement while diametrically opposite stand is taken by the other side. 4. In this case from the pleadings raised by the parties, prima facie, it appears to me that the parties are not total strangers. There has been some correspondence between them in regard to sale and supply of different quantities of Ferro Vanadium on different dates. Prima facie examination reveals that it cannot be a case of there being no transaction between the parties in regard to sale and supply of the goods in question. Whether that transaction fructified into a contract with an arbitration clause is a moot point to be decided. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecide a question as to the existence or otherwise of the arbitration agreement but when the correspondence or exchange of documents between the parties are not clear as to the existence or non-existence of an arbitration agreement, in terms of section 7 of the Act the appropriate course would be that the arbitrator should decide such a question under section 16 rather the Chief Justice of India or his nominee under section 11 of the Act. 7. I take this view because the power that is exercised by the nominee of the Chief Justice of India under section 11 is in the nature of an administrative order. In such a case, unless the Chief Justice of India or his nominee can be absolutely sure that there exists no arbitration agreement between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s anxiety to see that the arbitral process is set in motion. This being the legislative intent, it would be proper for the Chief Justice or his nominee just to appoint an arbitrator without wasting any time or without entertaining any contentious issues at that stage, by a party objecting to the appointment of an arbitrator. If this approach is adhered to, then there would be no grievance of any party and in the arbitral proceeding, it would be open to raise any objection, as provided under the Act. But certain contingencies may arise where the Chief Justice or his nominee refuses to make an appointment or an arbitrator and in such a case a party seeking appointment of arbitrator cannot be said to be without any remedy." 9. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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