9911796707
TMI Blog2001 (7) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... d but eh plaint is written upon paper insufficiently stamped and fourthly where the suit appears from the statement in the plaint to be barred by any law. 3. Section 45 of the Arbitration and Conciliation Act, 1996 (in short 'Act') is of mandatory nature and casts/obligation upon the judicial authority when seized of an action in a matter in respect of which an arbitration agreement subsists to refer parties to arbitration. It provides as under:- 45. Power of judicial authority to refer parties to arbitration:- Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, which seized of an action in a matter in respect of which the parties have made an agreement refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and naked eye view, signatures of the partner on this fax message and the signatures appearing on the plaint appear to be different. Even if it is assumed that the aforesaid fax was dispatched by the plaintiff but the fact remains that plaintiff has disputed not only the fax emphatically but also its signatures thereon. 6. Now the question arises whether Part II Chapter I of Section 45 pertaining to Enforcement of Certain Foreign Awards New York Convention Awards, bar the suit filed by the plaintiff or not. Section 44 of Part II provides as under:- 44. Definition:- In this Chapter, unless the context otherwise requires, foreign award means an arbitral award on differences between persons arising out of legal relationships, whether c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h respect to the existence or validity of the arbitration agreement and for that purpose an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contact, is applicable to the proceedings under Section 45 of the Act. I am afraid this contentionin holds no water as it is applicable only where place of arbitration is in India and to make it applicable in respect of foreign awards which would be upsetting the statute itself. 10. However, in the instant case, neither of the aforesaid ingredients or elements has been pleaded by the plaintiff. The defense of the plaintiff is simpliciter that there exists no agreement of arbitration and the fax message relied upon by the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff. 14. In view of the aforesaid reasons, I do not find any merit in the application and dismiss the same. 15. However, the pleas raised by the defendant in the application shall be treated as preliminary objection as to the maintainability of the suit and accordingly an issue will be framed in this regard. 16. Similarly the contention of learned counsel for the defendant that plea raised by the plaintiff in para (A) of the reply to application namely that the defendant company is being wound up requires the plaintiff to obtain permission from the proper court in italy to proceed further with the suit and therfore, till such time this permission is obtained, the suit continues to be barred by law shall also be taken into considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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