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TMI Blog2021 (11) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... he Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'Act') has been allowed. 2. This matter came up for hearing before this Court on 11th December, 2018 when notice was issued. Subsequently an application for early hearing was filed on behalf of the petitioner which was allowed by this Court on 9th September, 2021. The respondent has filed a reply and the petitioner has also filed a rejoinder. 3. The brief facts leading to the filing of the present petition are set out hereinafter: 3.1 On 20th October, 2019, a Letter of Intent was issued by the respondent to the petitioner for supply, installation and commissioning of electric works at the District Hospital Project at Gurgaon, Bhiwani and Hissar in Haryana. Letter of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. (iv) Petitioner has nowhere denied the existence of arbitration agreement contained in the documents annexed with the Letter of Intent. (v) In a similar matter being CS(COMM) 601/2017 titled as A.S. Nutech Electrical Pvt. Ltd. v. M/s. Larsen & Toubro Ltd., this Court has already referred the matter for arbitration and the petitioner is one of the directors in the said plaintiff company. (vi) The petitioner had deliberately withheld the proceedings in CS(COMM) 601/2017 as well as the complete documents that were annexures to the Letter of Intent. (vii) Judgment of this Court in Fenner India Ltd. V. Bhramputra Valley Fertilizer Corporation Ltd., 227 (2016) DLT 285 is not applicable to the facts of the case as there is no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory for the courts to refer the parties to arbitration in terms of the arbitration agreement. The counsel for the respondent further contends that whether the documents as sought by the respondent from the petitioner vide email dated 10th November, 2016 were supplied by the petitioner to the respondent is to be decided by the Arbitrator in the Arbitration Proceedings. 7. Coming first to the maintainability of the present petition, counsel for the respondent has rightly placed reliance on the judgment of this Court in Asha Saini (supra) wherein it has been observed that though Article 227 is a constitutional remedy and is not barred by a prohibition contained in statute, ordinarily the High Court would refrain from exercising this jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Section 8 of the Act. 9. The Division Bench of this Court in Black Dimond Track Parts Private Limited vs. Black Diamond Motors Parts Private Limited 2021 SCC Online Del 2630 (of which I was a part), applying the ratio of the Supreme Court in Deep Industries Ltd. (supra) observed that jurisdiction under Article 227 of the Constitution of India has to be sparingly exercised in respect of orders passed by the commercial court so that the legislative intent and purpose behind the Commercial Courts Act of expeditious disposal of commercial suits is not defeated. 10. In view of the aforesaid position of law, the present petition under Article 227 of the Constitution of India against the impugned order allowing the Section 8 application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is admitted. If that be so, in view of the mandatory language of Section 8 of the Act, the courts below ought to have referred the dispute to arbitration. xxx xxx xxx 16. It is clear from the language of the section, as interpreted by the Constitution Bench judgment in Konkan Rly. [(2002) 2 SCC 388] that if there is any objection as to the applicability of the arbitration clause to the facts of the case, the same will have to be raised before the Arbitral Tribunal concerned. Therefore, in our opinion, in this case the courts below ought not to have proceeded to examine the applicability of the arbitration clause to the facts of the case in hand but ought to have left that issue to be determined by the Arbitral Tribunal as contemplated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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