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TMI Blog2021 (6) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ot exist. This matter can be referred to arbitration. The parties are at loggerheads since 2006 onwards and have probably approached every judicial forum to seek reliefs. We see that during the process some parties have left for heavenly abode, some have reached super-senior/senior citizen status and those recently getting involved in this unending litigation, are young generation, who should walk the road of living peaceful life rather than wasting time, energy and money on litigations, which can be resolved amicably. The parties are referred to arbitration as prayed for in the application. - Company Application No. 553/2020 in Company Petition No. 144/2016 - - - Dated:- 31-5-2021 - Dr. Deepti Mukesh, Member (J) And Hemant Kumar Sarangi, Member (T) For the Appellant : Jay Savla, Sr. Advocate, Anand Mishra and Rishi Sood, Advocates For the Respondents : Deepak Khosla, Advocate ORDER 1. Present Application is filed by Mr. Vikram Bakshi who is respondent No. 2, in the above mentioned petition. CP No. 144/2016 which is filed by the respondents herein/petitioners under Sections 241-242 of The Companies Act, 2013. The present application invokes provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er disposal of the CP No. 114/2007 on 07.02.2020, this petition was taken up for hearing, in which before filing reply, the respondent No. 2 has filed present application under Section 8 of Arbitration and Conciliation Act, 1996 (as amended) seeking, to refer the parties to arbitration. Both the sides were heard and liberty was granted to file written submissions. 6. It is argued by the applicant as follows: I. (i) That Memorandum of Understanding dated 21.12.2005 (for brevity the said MoU ) and thereafter Definitive Agreement dated 31.03.2006 (for brevity the said DA ) are valid and subsisting as on date, has not been cancelled or repudiated by any parties, to these above mentioned agreements. In pursuance to Clause 29 of the said DA specifically requires the parties to be sent for Arbitration. For ready reference Clause 29 is reproduced hereunder:- a) All disputes or differences which shall at any time arise between the parties whether during the term or afterwards, touching or concerning this agreement or its construction or effect or the rights, duties or liabilities of the parties under, or by virtue of it, or otherwise, or any other matter in any way connected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.] (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof: 2 [Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.] (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal proceedings are pending for acts of fraud. Mayavati Trading Pvt. Ltd. Vs. Pradyuat Deb Burman (2019) (8) SCC 714. 7. The non-applicant/petitioner filed written submissions (by way of demurrer) in present application, for dismissal of the application as under:- (i) That such application is a criminal contempt of Court, in view of the orders passed by Hon'ble National Company Law Appellate Tribunal dated 22.12.2016 and 12.04.2017, as these orders were passed on the premise that if Tribunal finds that the reliefs, the company petition seeks, are statutory reliefs (opposed to contractual relief), then such statutory relief cannot be granted by Arbitral Tribunal and therefore present application under Section 8 of Arbitration and Conciliation Act is not maintainable. (ii) That the principles of res judicata applies as Hon'ble National Company Law Appellate Tribunal, in its orders dated 22.12.2016 and 12.04.2017, delivered findings that reliefs sought, are of statutory nature (in CP No. 114/2007). This non-applicant admits that the question of law agitated in previous disposed of CP No. 114/2007 and present CP No. 144/2016 are same. Once party acquiesce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated by fraud and was executed on misrepresentation and fraud hence as per judicial precedents the application be dismissed in limine. (vii) That when adjudication of the disputes between the parties involve adjudication of allegations relating to fraud, forgery, cheating, criminal breach of trust, etc., then Arbitral Tribunal's jurisdiction would stand ousted. Here, applicants have already been proceeded against and two different summoning orders are passed, hence application is not maintainable, as per judicial precedents relied below:- A. Ayyasamy Vs. V Paramasivam - 2016 10 SCC 386 Abdul Kadir Shamsuddin Bubere Vs. Madhav Prabhakar Oak and Another- AIR 1962 SC 406 Core-2019 (6) Arb LR 12 (SC) Gannon Dunkerley and Co. Vs. Union Carbide (India) Ltd.- AIR 1962 Cal 360. (viii) That Arbitral Agreement dated 31.03.2006 itself is void-ab-initio as if non-est and such prayer is already sought in company petition to be declared by this Tribunal. Hence this application is premature and be rejected, supported with following citations:- Ashbury Railway Carriage and Iron Company Limited Vs. Riche, (1875) L. R. 7 H. L. 653. Life Insura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that CA No. 731/2020 was rejected vide order dated 11.02.2021 by this Bench, which according to non-applicant, only carry consistent logical force that present application is also rejected. 9. In view of the latest judgment passed by the Hon'ble Apex Court further clarifying the issues with respect to reference to Arbitration under Section 8, additional written submissions are filed by the applicant citing latest judgment passed by Hon'ble Apex Court in M/s. N.N. Global Mercantile Private Limited Versus M/s. Indo Unique Flame Limited Others on 11.01.2021. The issue of stamping of arbitration agreement was decided in detail and it is laid down that the contention, that the non-payment of stamp duty on commercial content would invalidate even the arbitration agreement and render it non-existent in law and unenforceable, is not the correct position in law. 10. After hearing both the sides at length and perusing the documents on record, we are of following views as supported by various findings and decisions of the Hon'ble Apex Court. Firstly, it is very essential to understand the legislative intent behind the amendment in the year 2015, of the Arb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the Hon'ble Apex Court, the objects of amendment in Section 8 of Arbitration and Conciliation Act, 1996 can be analysed and understood better. It can be inferred that the law of arbitration has evolved dramatically, widening horizons of the types of disputes, making it more inclusive, to make arbitration user-friendly, cost-effective and expeditious method of dispute resolution. As per foot note-1 of UNCITRAL Model Law, 'Commercial' term should be given a wide interpretation, to cover all matters arising from all relationships of a commercial nature, whether contractual or not. Commercial disputes are referable to arbitration. Commercial should be construed broadly having regard to mani-fold activity which are integral part of international trade today. This is also supported by the judgements of Hon'ble Apex Court in R.M. Investments Trading Company Vs. Boeing Company dated 10.02.1994 Harendra Mehta Vs. Mukesh Mehta. i. Matters which are not arbitrable are specifically categorised as per the Hon'ble Supreme Court judgment in the Booz-Allen Hamilton INC Vs. SBI Home Finance Limited Others which are listed as under:- Suit fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne M/s. N.N. Global Mercantile Private Limited, clear the clouds of doubts with respect to each aspect and ingredient of Section 8 of Arbitration and Conciliation Act to finally decide the arbitrability of an agreement. H. The defence raised by non-applicant for dismissal of the application mainly on the ground of fraud played, while executing the agreement is covered by the Apex Court clearly observing that in spite of fraud or misrepresentation while executing of agreement or even when the criminal proceedings are pending, the whole gamut of issues can be decided by arbitrator or Arbitral Tribunal. It is important to mention that the Hon'ble Apex Court have also ruled that whether the arbitrator has powers to arbitrate the dispute or not, is also arbitrable by the same arbitrator. Thus, there is no space left to undermine the powers and jurisdiction of an arbitrator. I. During the arguments, the non-applicant/petitioner has argued (though not included in written submissions) that the agreement is not properly stamped as required under the law. Hence, this Bench should impound the agreement and send it for proper adjudication to appropriate authority for fixing the l ..... 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