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TMI Blog2017 (7) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitration clause aforesaid in the Agreement would be deemed to have been incorporated in the Sale Deed - Mere absence of an arbitration clause in the Sale Deed cannot be variance with the terms and conditions of the Agreement dated 9th February, 2012 for it to be said that the arbitration clause in the Agreement dated 9th February, 2012 stands novated. In fact from the admission of the counsel for the petitioner / plaintiff that the clauses aforesaid are capable of being interpreted, as have been done by the learned Additional District Judge, the jurisdiction under Article 227 is excluded inasmuch as the said jurisdiction is not intended to interfere with a possible interpretation of the Courts below. The second argument of the counsel for the petitioner / plaintiff is that the Agreement dated 9th February, 2012 was imposed upon the petitioner / plaintiff and the petitioner / plaintiff was compelled to sign the same owing to having made all the payments to the respondent / defendant. The counsel states that an application had also been filed in the suit for seeking production of the original Arbitration Agreement and for amendment of the plaint to seek a declaration in this regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Punjab and Haryana in (i) Ashok Kumar Jain Vs. Haryana Iron Steel Rolling Mill, Hisar 2009 SCC OnLine P H 7823; (ii) Pushpinder Kumar Vs. Joginder Pal 2010 SCC OnLine P H 6413; (iii) Lovely Obsessions Pvt. Ltd., Gurgaon Vs. Sahara India Commercial Corporation Ltd., Gurgaon 2012 SCC OnLine P H 11449 ; (iv) Inam Vs. Shri Ram City Union Finance Ltd. 2013 SCC OnLine P H 14192; and, (v) Munish Singal Vs. B.S.N.L. 2012 SCC OnLine P H 8903 and the High Court of Kerala in K. Sanil Vs. Bharath Sanchar Nigam Limited 2016 SCC OnLine Ker 33517 and the Bombay High Court in Sudam Singh Vs. S.K. Builders 2014 SCC OnLine Bom 2266 to have entertained petitions under Article 227 of the Constitution of India against the orders of the District Court on applications under Section 8 of the Arbitration Act but in none of the said judgments has the question of very maintainability of the petition been discussed. The said judgments cannot thus be said to be judgments laying down that a petition under Article 227 of the Constitution of India lies against the order of the District Court on an application under Section 8 of the Arbitration Act. 7. Before I proceed to discuss this aspect further, noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he party applying for reference to arbitration under subsection (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 pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. The impact of the said amendment will also be discussed hereinafter. 9. Owing to the language of Section 37(1) providing that an appeal shall lie against the orders mentioned thereunder and from no others, the Division Bench of this Court in Canbank Financial Services Ltd. Vs. Haryana Petrochemicals Ltd. 2008 (104) DRJ 59 (DB) held that the embargo on appeals in Section 37 is an absolute and categorical embargo and even an appeal under Clause 10 of Letters Patent would not be maintainable against an order referring the parties to arbitration. The same view has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vishwanath Talwar Vs. Meshreq Bank, PSC ILR (2003) II Del 392, Tandav Films Entertainment P. Ltd. Vs. Four Frames Pictures 2009 SCC OnLine Del 3292, Saipem Triune Engineering Pvt. Ltd. Vs. Indian Oil Petronas Pvt. Ltd. 2011 SCC OnLine Del 1104 (DB) and in Havels India Ltd. Vs. Electrium Sales Ltd. 2013 SCC OnLine Del 1474 held that the view taken under Section 8 of the Arbitration Act is a prima facie view. Thus, an order under Section 8 referring the parties to arbitration does not come in the way of any of the said parties before the Arbitral Tribunal setting-up of a plea under Section 16 of the Arbitration Act qua the existence or validity of the arbitration agreement and which finding is assailable under Section 34 of the Act. Section 8 of the Arbitration Act as amended w.e.f. 23rd October, 2015 also requires the Court to only return a prima facie view about the existence of the arbitration agreement. 11. Notice in this regard may also be taken of SBP and Company Vs. Patel Engineering Ltd. (2005) 8 SCC 618 holding that there is no warrant for approach of some of the High Courts holding that any order passed by the Arbitral Tribunal during arbitration would be capable of being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r allowing an application under Section 8 of the Act and an order refusing an application under Section 8 of the Act. While in the case of the former, the existence and opportunity of challenge to the existence and validity of the arbitration agreement is available before the Arbitral Tribunal also, in the case of latter, the rights and obligations of the parties would then be determined by the Civil Court instead of by arbitration agreed upon between the parties and the order has a sense, in that context, of finality. It is perhaps for this reason that vide amendment w.e.f. 23rd October, 2015 the order refusing to refer the parties to arbitration under Section 8 has been made appealable and not the order referring the parties to arbitration. Thus merely because in Pinkcity Midway Petroleums supra the Supreme set-aside the order of the High Court dismissing the Revision Petition does not lead me to hold in favour of maintainability of the Revision Petition or a petition under Article 227 of Constitution of India. 14. Be that as it may, on a reading of the paper book I am of the prima facie view that there is no merit in the challenge to the impugned order otherwise also. Thus, de h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner / plaintiff has firstly argued that since there is no arbitration clause in the Sale Deed, the same would be treated as variance with the terms and conditions in the Agreement dated 9th February, 2012 and the arbitration clause contained in the Agreement dated 9th February, 2012 has thus been novated by virtue of Section 62 of the Indian Contract Act, 1872. 18. I am unable to agree. 19. The only reasonable way to interpret clause 5(j) aforesaid is that unless there is anything in the Sale Deed dated 8th January, 2014 to suggest that the resolution of disputes between the parties would not be by way of arbitration as provided in the Agreement dated 9th February, 2012, the arbitration clause aforesaid in the Agreement would be deemed to have been incorporated in the Sale Deed. 20. The counsel for the petitioner / plaintiff has not drawn attention to any clause in the Sale Deed which can be said to be at variance with the arbitration clause in the Agreement or which can said to be negating the agreement of the parties of resolution of disputes by arbitration. Mere absence of an arbitration clause in the Sale Deed cannot be variance with the terms and conditions of the Agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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