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TMI Blog2016 (7) TMI 1648X X X X Extracts X X X X X X X X Extracts X X X X ..... cases having trans-national implications. It is clear that the doctrine of forum non conveniens is only available when a Court has the jurisdiction but the respondent is able to establish the existence of another competent court. The finding of the learned single Judge that the arbitration agreement in the present case is incapable of performance or inoperative because of the pendency of the proceedings in the Company Law Board is clearly out of line. As pointed out above, while discussing the World Sport Group (supra) decision, it was specifically noted that the mere existence of the multiple proceedings (proceedings before the Company Law Board and those before the arbitral tribunal) is not sufficient to render the arbitration agreement inoperative or incapable of being performed - In any event, the subject matter of the proceedings before the Company Law Board fell within the ambit of the alleged oppression and mismanagement whereas the subject matter of the dispute before the arbitral tribunal related to the termination of the JVA and the rights flowing therefrom. The learned single Judge was of the view that there was a waiver or abandonment of the arbitration clause by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase may be, of the 1996 Act - Application disposed off. - FAO (OS) 9/2015 and CM No. 326/2015 - - - Dated:- 21-7-2016 - MR BADAR DURREZ AHMED AND MR SANJEEV SACHDEVA For the Appellant : Mr Harish Salve Mr Rajiv Nayar, Sr Advocates, Mr Rahul P. Dave, Mr Amit Dhingra, Mr Sumit Chopra, Mr Sahil Dhawan, Mr Rahul Narayan and Mr Rohit Tripathy For the Respondent Nos. 1 2 : Mr C. A. Sundaram Mr A.S. Chandhiok, Senior Advocates with Mr Rishi Sood JUDGMENT The present appeal has been preferred against the judgment dated 22.12.2014 delivered by a learned Single Judge of this Court in IA 6207/2014 which was an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908. In the said application, the respondent Nos. 1 and 2 (plaintiffs) had prayed for an ad interim injunction against the arbitration proceedings initiated by the appellant (defendant No.1) before the London Court of International Arbitration at London, U.K. The said application had been filed in CS(OS) 962/2014 in which the respondent Nos. 1 and 2 (plaintiffs) had sought, inter alia, a declaration that there is no arbitration agreement between the plaintiffs (respondent Nos. 1 and 2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings by the defendants, when the company petition was pending before the Company Law Board, was oppressive and vexatious. 3. The appellant has challenged the impugned judgment by way of this appeal. At the outset, we may point out that the observations of the learned Single Judge with regard to the forum non-conveniens argument are not correct in law. When we posed this question before Mr Aryama Sundaram, the learned senior counsel who appeared on behalf of the respondents, he submitted that he is not pressing the case on the basis of the submissions made on forum non-conveniens and would not rely on the observations of the learned Single Judge with regard to the forum non-conveniens argument. We are making it clear that the forum non-conveniens argument was, therefore, not stressed before us by the respondents nor could they have because the observations of the learned Single Judge on this aspect of the matter are contrary to law and, therefore, would not hold good. In order to substantiate this, some comment on the forum non conveniens principle would be necessary. Forum non conveniens 4. To clarify the position with regard to forum non conveniens, a slight digressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of forum non conveniens, namely, that the court was satisfied that there was another court in which the action ought to be tried as being more convenient for all the parties, and more suitable for the ends of justice. (underlining added) 5. In Mayar (H.K.) Ltd v. Owners Parties, Vessel M.V. Fortune Express: (2006) 3 SCC 100, the Supreme Court quoted with approval the explanation of the ambit of the principle of forum non conveniens for issuing an order of stay as given by the House of Lords in Spiliada Maritime Corpn. V. Cansulex Ltd: (1986) All ER 843 which was to the following effect: (1) The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in which the case could be tried more suitably for the interests of all the parties and for the ends of justice . (2) In the case of an application for a stay of English proceedings the burden of proof lay on the defendant to show that the court should exercise its discretion to grant a stay. Moreover, the defendant wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awn with a necessary generality and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment. A plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself. 9. From the above discussion, it is clear that the doctrine of forum non conveniens can only be invoked where the court deciding not to exercise jurisdiction, has jurisdiction in the strict sense, but comes to the conclusion that some other court, which also has jurisdiction, would be the more convenient forum. It must also be kept in mind that the doctrine of forum non conveniens is essentially a common law doctrine originating from admiralty cases having trans-national implications. It is clear that the doctrine of forum non conveniens is only available when a Court has the jurisdiction but the respondent is able to establish the existence of another competent court. 10. Clearly, the principle applies when there are competing courts, each of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is another court at place B which also has jurisdiction and would be more convenient. The Code of Civil Procedure, 1908 does not permit it. The court in which a suit is initiated, if it has jurisdiction, has to proceed with the suit even if there is another court where also the suit could have been instituted. The provision of stay of suit under Section 10 CPC also does not contemplate a forum non conveniens situation. Neither does the provision of Order 7 Rule 10 (Return of the plaint) where the court returns a plaint for want of jurisdiction. But, if there are two courts of competent jurisdiction, then, if the suit is instituted in one court, which is inconvenient to the defendant, the latter could invoke the provisions of Section 24 CPC or Section 25 CPC as the case may be. Therefore, in India, the statute provides for situations where the common law equitable principles of forum non conveniens and the like would be applicable. 13. Thus, the arguments addressed before us proceeded on aspects other than the forum non-conveniens argument. Principally, the arguments were on the issues as to whether the court could at all interfere in the course of an arbitral proceeding and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (3) he discharges the responsibilities of management of JV Company in a competent and faithful manner; (4) he is not in breach of any term of this Agreement or any other agreement between the JV Parties or their affiliates or subsidiaries. xxxx xxxx xxxx xxxx 32. McDonald's Option to Purchase Shares . McDonald's, any of its wholly-owned subsidiaries or affiliates as designated by McDonald's, or any person or entity designated by McDonald's, may purchase all of the shares of JV Company owned or controlled by Partner at a purchase price determined in accordance with Paragraph 26 above if any of the following events shall occur: (a) Partner personally fails to maintain his principal residence in the National Capital Region of Delhi or fails to devote his full business time and best efforts to JV Company; (b) Partner terminates or suffers the termination of his relationship as Managing Director of JV Company, other than by reason of his death or incapacity. In the event of Partner's death or incapacity, Paragraph 29(d) shall govern; or (c) upon expiration or termination of this Agreement. xxxx xxxx xxxx xxxx 35. Termination by Non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 45 or 46 or representations or warranties therein are found to be untrue; (f) Repeated delays or failures to make delivery of the reports required by Paragraph 14; (g) Any Operating License Agreement shall be terminated by reason of default by JV Company. In the event of such material default, McDonald s shall give written notice of default to Partner, and may terminate this Agreement if the event of default remains unremedied sixty (60) days after the date of such notice; provided, however, that no such remedy period shall be required if the default involves Paragraph 36 (d). 37. Effect of Termination. Upon termination of this Agreement: (a) McDonald s or a designee may elect either to purchase all shares owned and controlled by Partner in JV Company at a purchase price determined as of the date of notice of termination in accordance with Paragraph 26 above or, (b) McDonald s may elect not to purchase all shares owned by Partner in JV Company, and in that event, the JV Parties agree that: (i) the Operating License Agreements shall be terminated or assigned as directed by McDonald s; (ii) the JV Parties agree to vote promptly in a General Meeting of Share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al tribunal for resolution. The arbitrators shall have the right to award or include in their award any relief which they deem proper in the circumstances, including without limitation, money damages (with interest on unpaid amounts from date due), specific performance, injunctive relief, legal fees and costs. The award and decision of the arbitrators shall be conclusive and binding upon the JV Parties and judgment upon the award may be entered in any court of competent jurisdiction. Partner and McDonald s waive any right to contest the validity or enforceability of such award. The JV Parties further agree to be bound by the provisions of any applicable limitation on the period of time in which claims must be brought. xxxx xxxx xxxx xxxx 15. Thereafter, on 29.06.1995, the respondent No.3 (Connaught Plaza Restaurants Private Limited) was incorporated pursuant to the JVA to operate McDonald s restaurants on a non-exclusive basis in the NCR of Delhi. In the respondent No.3 company, MIPL held Rs 14.56 crores equity share capital. In addition, MIPL also held preference share capital to the extent of Rs 177.30 crores and also licensed the respondent No.3 to use the McDonald s bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Company Petition under Section 45 of the said Act seeking a reference of the respondent Nos. 1 and 2 s claims to arbitration in view of the arbitration agreement contained in the JVA. 21. On 28.11.2013, MIPL terminated the JVA by a notice of termination in which it, inter alia, alleged that covenants contained in the JVA had been broken by VB and that the good faith and mutual confidence between MIPL and VB had been irrevocably lost. It was also alleged that VB through his express words and conduct had also repudiated the JVA. MIPL also elected, in view of paragraph 37(a) of the JVA, to purchase all the shares held by VB, directly or indirectly through the respondent No. 2, in the respondent No. 3 company upon the termination of the JVA. 22. On the very next day, that is, on 29.11.2013, MIPL invoked the arbitration agreement by its request for arbitration and instituted arbitration proceedings in the London Court of International Arbitration. Shortly thereafter, on 02.12.2013, MIPL filed a petition under Section 9 of the said Act before this Court seeking interim reliefs in aid of the arbitration proceedings. By an order dated 02.12.2013 passed in the said Section 9 applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 29.03.2014, approximately four months after the arbitration proceedings had commenced, VB and the respondent No. 2 filed the said suit [CS(OS) 962/2014] before this Court. Along with the said suit, the said IA 6207/2014 under Order 39 Rules 1 and 2 seeking ad interim stay of the arbitration proceedings was also filed. 26. On 03.04.2014, VB and the respondent No. 2 deposited an amount of GBP 30,000 with the London Court of International Arbitration by way of an initial advance towards the expenses of the arbitration proceedings. On 30.04.2014, after hearing detailed submissions on IA 6207/2014, the learned Single Judge reserved orders. On 18.07.2014, MIPL filed its written statement in the suit without prejudice to its application seeking rejection of the plaint which it had filed on 14.04.2014 under Order 7 Rule 11 CPC. On 09.06.2014, MIPL filed its statement of case before the London Court of International Arbitration setting out its separate and distinct claims relating to the termination of the JVA. This was followed, on 04.08.2014 by the statement of defence filed by VB and the respondent No.2 in the said arbitration proceedings subject to its jurisdictional objections. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o their share-holding in respondent No.3 till such time interim directions / orders are issued in the arbitral proceedings. This was, however, without prejudice to the issue of arbitrability which had been raised by VB and Respondent No.2 before the Arbitral Tribunal. The order clearly records that the statement of the said respondents was taken on record and that they would be bound by it. From this, it appears that VB and respondent No.2 conceded that the question of arbitrability as also the competence of the arbitral tribunal was to be decided by the arbitral tribunal itself and that the interim order passed by the learned single Judge would continue to operate till other or further directions / orders were issued in the arbitral proceedings. 5) VB and Respondent No.2 sought to challenge the termination of the JVA in the pending company petition before the Company Law Board and sought stay of the arbitral proceedings. This was declined by the Company Law Board by a reasoned order. Apparently, an appeal was filed against the order declining stay, but the same was not pursued by VB and Respondent No.2 on the purported ground that since the Section 45 application had been withd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng suits in a foreign court whenever the circumstances of the case make such an interposition necessary or proper. Specifically, it was noted that the jurisdiction would be exercised whenever there is vexation or oppression. The Supreme Court observed and held as under:- 27. If the venue of the arbitration proceedings had been in India and if the provisions of the Arbitration Act of 1940, had been applicable, the suit and the arbitration proceedings could not have been allowed to go on simultaneously and either the suit would have been stayed under Section 34 or if it was not stayed, and the arbitrators were notified about the pendency of the suit, they would have had to stay the arbitration proceedings because under Section 35 such proceedings would become invalid if there was identity between the subject-matter of the reference and the suit . In the present case, when the suit is not being stayed under Section 34 of the Act it would be contrary to the principle underlying Section 35 not to grant an injunction restraining the Russian Firm from proceeding with the arbitration at Moscow. The principle essentially is that the arbitrators should not proceed with the arbitration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings because, otherwise under Section 35 of the 1940 Act, such proceedings before the arbitrators would become invalid if there was identity between the subject matter of the reference and the suit. The Supreme Court clearly spelt out the applicable principle in terms of the provisions of the 1940 Act to be that the arbitrator should not proceed with the arbitration side by side in rivalry or in competition as if it were a civil court. This pronouncement of the Supreme Court was based, as already mentioned above, on the provisions of the 1940 Act and, in particular, the interplay between the provisions of Sections 34 and 35 thereof. But, in the present case, we are concerned with the Arbitration and Conciliation Act, 1996 and not the Arbitration Act, 1940, which stands repealed. Under the 1996 Act, whether Part I thereof or Part II is applicable, the focus seems to have shifted towards directing the parties to arbitration rather than deciding the same subject matter as a civil suit. This is clearly discernible from Section 8 of the 1996 Act as also Section 45 thereof. In both eventualities, in an action which is brought before a court and which also happens to be the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision pertaining to anti-suit injunctions. The Supreme Court, in Modi Entertainment Network (supra), laid down the following principles governing an anti-suit injunction:- 1. In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects:- (a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court; (b) if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of comity - respect for the court in which the commencement or continuance of action / proceeding is sought to be restrained - must be borne in mind; 2. In a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (Forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexations or in a forum non-conveniens; 3. Where a jurisdiction of a Court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and prove the same. 37. It is important to note that the present case pertains to an anti-arbitration injunction and the principles governing the present case cannot be the same as one governing a case of an anti-suit injunction. This is so because of the principles of autonomy of arbitration and the competence-competence (Kompetenz-kompetenz) principle. For the present, it is necessary to note point numbers 6 and 7 in the extract from the Supreme Court decision in Modi Entertainment Network (supra). It has been observed that when one of the parties to a contract containing a jurisdiction clause approaches the court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that court cannot per se be treated as vexatious or oppressive. Furthermore, the burden of establishing that the proceedings in the forum of choice are oppressive or vexatious would be on the party so contending to aver and prove the same. 38. The only principle on which the respondents case is based is that the arbitration proceedings at London would be vexatious or oppressive. But, as pointed out in Modi Entertainment Network (supra), merely because an arbitration is proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were neither vexatious nor oppressive. In any event, this decision is not of any help to the respondents as it does not deal with the case of an anti-arbitration injunction. 41. In another decision referred to by the respondents, which was of a learned single Judge of the High Court in Calcutta in the case of the Board of Trustees of the Port of Kolkata v. Louis Dreyfus Armatures SAS Others: G.A. No.1997/2014 in CS No.220/2014, the circumstances under which an anti-arbitration injunction could be granted were summarised as under:- (i) If an issue is raised whether there is any valid arbitration agreement between the parties and the Court is of the view that no agreement exists between the parties. (ii) If the arbitration agreement is null and void, inoperative or incapable of being performed. (iii) Continuation of foreign arbitration proceeding might be oppressive or vexatious or unconscionable. 42. It would be noticed straightaway that the points (i) and (ii) extracted above are essentially taken from Section 45 of the 1996 Act. The only addition being point No. (iii) where it was submitted that an anti-arbitration injunction could be granted if the continuatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument called the Joint Venture Agreement. A dispute had been raised with regard to the JVA being a forgery. The court below had granted an injunction mainly because there would be limited scope for the arbitrators to proceed with the arbitration till the authenticity of the JVA had been decided and it would be oppressive for Mr Albon who had limited funds to be required to fight a battle on two fronts and it would not be long before the question of authenticity would be decided by the court. It was also noted in paragraph 2 of the said decision that it had been agreed that the question of authenticity was to be determined finally by the English Courts. The Court of Appeal noted, inter alia, that there was a good arguable case that not only Mr Albon s signature on the JVA had been forged but that the forgery was brought into existence after Mr Albon issued his proceedings and in order to stop the English proceedings in their tracks. It was further noted that the English Court was to be the final Judge on the question of authenticity of the JVA and that as such the question of authenticity could not be determined by the Arbitrators. It is in these circumstances that it was observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had already been properly brought in England. The case at hand is entirely different. 46. The decision in Excalibur Venture LLC v. Texas Keystone Inc Others: 2011 EWHC 1624 (Comm) was also referred to by the learned counsel for the respondents as another instance of an anti-arbitration injunction. One of the issues, which arose for consideration in Excalibur (supra) was whether the court had jurisdiction to grant an injunction restraining Excalibur (supra) from proceeding with the arbitration proceedings against the Gulf defendants. It was observed in paragraph 54 of the said decision that English Courts clearly had jurisdiction under Section 37 of the Senior Courts Act, 1981 (more or less equivalent to Section 151 of the Code of Civil Procedure 1908) to grant injunctions restraining arbitrations where the seat of arbitration is in a foreign jurisdiction, although that power is only to be exercised in exceptional cases and with caution. In paragraph 55, it was noted that an English court would be particularly slow to restrain arbitration proceedings where there is an agreement for the arbitration to have its seat in a foreign jurisdiction and the parties have unquestionably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply to an anti-arbitration injunction. It is further important to note that the exceptional cases where arbitrations could be injuncted upon holding that the arbitration proceedings would be oppressive or unconscionable were regarded as those circumstances which would include the situation where the very issue was whether or not the parties had consented to the arbitration or where there was an allegation that the arbitration agreement was a forgery just as in the case of Albon (supra). It is clear that none of these exceptional circumstances arise in the present case. 49. It is also important to note that although the competence-competence principle was applicable and the arbitral tribunal had the requisite competence to determine its own jurisdiction, the courts in England retained the jurisdiction to determine the issue as to whether there was ever an agreement to arbitrate. In our view, the same principle would apply insofar as the courts in India are concerned. The courts in India would certainly have the jurisdiction to determine the question as to whether an arbitration agreement was void or a nullity. But, that is not the case here. Jurisdiction of the Civil Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chatterjee Petrochem (supra) and World Sport Group (supra) were diametrically opposed to each other. We do not think that that is the correct view. In any event, the decision in World Sport Group (supra), which was also relied upon by the appellant, does not, in any manner, hamper the case of the appellant or advance the case of the respondents. The decision in World Sport Group (supra) was clearly dealing with an agreement for arbitration to which the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 applied. Consequently, sections 44 and 45 of the 1996 Act were referred to and relied upon. The said provisions read 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 contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960- (a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and (b) in one of such territories as the Central Government, being satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various authorities in order to ascertain the meaning of the expressions null and void , inoperative and incapable of being performed . The relevant paragraphs of the said decision are set out hereinbelow:- 33. Mr. Gopal Subramanium's contention, however, is also that the arbitration agreement was inoperative or incapable of being performed as allegations of fraud could be enquired into by the court and not by the arbitrator. The authorities on the meaning of the words inoperative or incapable of being performed do not support this contention of Mr. Subramanium. The words inoperative or incapable of being performed in Section 45 of the Act have been taken from Article II (3) of the New York Convention as set out in para 22 of this judgment. Redfern and Hunter on International Arbitration (5th Ed.) published by the Oxford University Press has explained the meaning of these words inoperative or incapable of being performed used in the New York Convention at page 148, thus: At first sight it is difficult to see a distinction between the terms 'inoperative' and 'incapable of being performed'. However, an arbitration clause is inoperative where it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asked to refer the parties to arbitration. For example, the arbitration agreement ceases to have effect if there has already been an arbitral award or a court decision with res judicata effect concerning the same subject matter and parties. However, the mere existence of multiple proceedings is not sufficient to render the arbitration agreement inoperative. Additionally, the arbitration agreement can cease to have effect if the time limit for initiating the arbitration or rendering the award has expired, provided that it was the parties' intent no longer to be bound by the arbitration agreement due to the expiration of this time-limit. Finally, several authorities have held that the arbitration agreement ceases to have effect if the parties waive arbitration. There are many possible ways of waiving a right to arbitrate. Most commonly, a party will waive the right to arbitrate if, in a court proceeding, it fails to properly invoke the arbitration agreement or if it actively pursues claims covered by the arbitration agreement. (emphasis in original) 36. Thus, the arbitration agreement does not become inoperative or incapable of being performed where allegations of fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud have been made by the parties which can only be enquired into by the court and not by the arbitrator. Clearly, the Supreme Court held that in the case of arbitrations covered by the New York Convention, the court could decline to make a reference of a dispute covered by the arbitration agreement only if it came to the conclusion that the arbitration agreement was null and void, inoperative or incapable of being performed and not on the ground that the allegations of fraud or misrepresentation had to be enquired into while deciding the dispute between the parties. It is, therefore, clear from the observations of the Supreme Court in World Sport Group (supra) that the rule is for a reference to arbitration under Section 45 unless the court comes to the clear conclusion that the arbitration agreement is null and void, inoperative or incapable of being performed. This principle would also apply in the case of a party seeking an anti-arbitration injunction in respect of an agreement under the New York Convention. In other words, unless and until a party seeking an anti-arbitration injunction can demonstrably show that the arbitration agreement is null and void, inoperative or inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on filed under Section 9 of the 1996 Act by the appellant was also not pressed. This is clearly not correct. We have already referred to the order passed on the Section 9 application (OMP 1196/2013) by a learned single Judge of this court on 02.12.2013 where, clearly, the learned counsel for VB and Respondent No.2 had stated, on instructions, though without prejudice to their contentions in the Company Law Board regarding the arbitrability of the disputes, that status quo would be maintained as regards the share-holding of the said respondents in Respondent No.3 as well as in the share-holding pattern of respondent No.2, till such time, interim directions / orders are issued in the arbitral proceedings, if any. The order passed by the learned single Judge specifically indicated that the said statement of the respondents was taken on record and would bind them. Thus, as an interim measure, the appellant had succeeded in getting a limited protection in the said Section 9 application. Therefore, the finding of the learned single Judge that the application was not pressed is contrary to the record. The observations of the learned single Judge contained in paragraph 68 to the effect tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective effect from 23.10.2015 to read as under:- 8. Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement 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. xxxx xxxx xxxx xxxx xxxx 58. Thus, there is now a mandate to refer the parties to arbitration unless the court finds that prima faice no valid arbitration agreement exists. This is clearly not the case here. Therefore, in any eventuality, in the facts and circumstances of the case and applying the principles, as indicated above, the learned single Judge could not have restrained the appellant from pursuing the arbitration proceedings before the arbitral tribunal. 59. There is a very interesting observation in paragraph 7.01 of Redfern an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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