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TMI Blog2020 (7) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... and would relate to right in personam and not right in rem. If the arbitral tribunal would have held that it had no jurisdiction in the matter and would have dismissed the claim of the respondent, the respondent would not have any remedy at all. In the proceedings before the CCI, whatever may be the outcome, the respondent would not be able to get any effective relief or decree or award directing the petitioner herein to pay the particular amount to the respondent. The arbitral tribunal rightly held that the respondent had certain rights under the 2015 SLA and thus it must also have remedy for enforcement of such rights. If the challenge to the jurisdiction of the tribunal by the respondent is upheld, it would result in dismissal of the claim without adjudication of the merits and without granting any relief to him. The tribunal accordingly rightly held that wherever there is right, there is a remedy or where there is no wrong without remedy. Does the Competition Act apply to the 2015 Sub- license Agreement? - HELD THAT:- The arbitral tribunal held that it was clear that the question whether or not Competition Act, 2002 applies to 2015 SLA can and is to be decided only by the CCI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount awarded by the arbitral tribunal or on the merit of the claim decided by the arbitral tribunal in the impugned award but addressed only on the issue of jurisdiction of the arbitral tribunal. Reliance placed on Section 17 of the Arbitration Act in support of the submission that the arbitral tribunal is empowered to suspend the arbitral proceedings is misplaced. Under Section 17, the arbitral tribunal is empowered to grant interim measures on the grounds and the circumstances set out in the said provision. Section 17 does not empower the arbitral tribunal to suspend the arbitral proceedings. It is thus clear beyond reasonable doubt that the arbitral tribunal could neither terminate nor suspend the arbitral proceedings before the CCI under the provisions of the Competition Act nor could refuse to deal with the monetary claims arising out of the 2015 SLA merely on the ground that the issue of validity of the 2015 SLA by the Central Government by filing a reference or in view of the information filed by the petitioner before the CCI under provisions of the Competition Act is pending before the CCI - there is no substance in the submission made by the learned senior counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner before the CCI. The judgment of Supreme Court in case of Mahavir J. Patil [ 2009 (4) TMI 1067 - SUPREME COURT] relied upon by the learned senior counsel for the petitioner is clearly distinguishable in the facts of this case. Supreme Court in the said judgment had considered Section 12 of the Resettlement Act, 1976 and held that it was the clear legislative intent as Section 12 of the Resettlement Act clearly stipulated that any transfer by way of sale, partition, etc after the date of notification under Section 11 would be void. It is held that where the statue itself is against a transfer, it is the statue which will pre-dominate vis-a-vis the other consideration. The said judgment would not apply to the facts of this case even remotedly. A perusal of the award clearly indicates that the arbitral tribunal has rightly allowed the monetary claims made by the respondent after considering the pleadings, evidence, oral and written arguments advanced by the parties. In so far as the merit of the claim is concerned, the petitioner did not raise any dispute on the quantification nor agitated any submission across the bar while arguing the arbitration petition at length ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Adarsh Ramanujan, Ms. Heenal Desai, Ms. Mansi Chheda i/by M/s. Dhru & Co., for the Respondent in CARBP/738/2019. Mr. Pravin Samdani, Senior Advocate along with Mr. Sharan Jagtiani, Mr. Nirman Sharma, Mr. Shriraj Dhruv, Mr. Rishi Aggarwal, Mr. Karan Luthra, Mr. Shantanu Aggarwal, Mr. Adarsh Ramanujan, Ms. Heenal Desai, Ms. Mansi Chheda i/by M/s. Dhru & Co., for the Respondent in CARBP/892/2019. JUDGMENT: 1. By Arbitration Petition No.737 of 2019 filed under section 34 of the Arbitration and Conciliation Act, 1996, the petitioner has impugned the majority arbitral award dated 16th January,2019 and order dated 11th May, 2017 passed by the Arbitral Tribunal under section 16 of the Act dismissing the said application. 2. By Arbitration Petition No.738 of 2019, the petitioner has impugned the arbitral award dated 16th January,2019 and the order dated 11th May, 2017 passed by the Arbitral Tribunal under section 16 of the Act dismissing the said application. 3. Commercial Arbitration Petition No.892 of 2019 is filed by the petitioner under section 34 of the Arbitration and Conciliation Act, 1996 inter alia praying for setting aside the impugned award dated 30th March,2019 rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id two agreements, the respondent was liable to pay to the petitioner and has paid one time non-refundable fee of Rs. 50 lakhs. The respondent was also required to pay the amount as and by way of royalty fees/trait fees/ trait value on every 450gm packet of Bt.Cotton seeds of the proprietary varieties of the petitioner sold every year. 8. It was the case of the petitioner that since the year 2006-2007, the trait value charged and collected by the respondent had been subject to the various State Government Price Control Notifications. Since the year 2016, the said trait value was being regulated by the Central Government under the Cotton Seeds Price (Control) Order 2015. There were MRTP Proceedings filed against the respondent. Several interventions were made by the State Government in the interest of farmers. The petitioner along with other domestic seed producing companies issued letters to the respondent requesting the respondent to charge the trait value commensurate with the State Government Price Control Notifications as opposed to the contractual trait value under the 2015 SLA and for refund of excess trait value paid during 2010 to 2014 over the State Government Price Contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore levied a monetary penalty upon the respondent and its other group companies. On 28th June, 2018, the Director General submitted a Investigation Report before the said CCI. By letter dated 12th March,2019, the said CCI directed the parties including 18 officials of the respondent and Monsanto group companies under section 48 of the Companies Act to collect non-confidential Investigation Report by filing an undertaking that the Investigation Report would not be used for any purpose other than those provided under the Competition Act and Rules thereunder. 13. On 18th February,2016, the respondent and its group companies filed an infringement suit before the Delhi High Court i.e. C.S. (Comm.) No.132 of 2016 alleging that pursuant to the termination of the 2015 SLA, the petitioner had infringed the patent rights of the respondent by selling cotton seeds with Bt. trait. The petitioner filed a counter claim in the said suit inter alia praying for invocation of the patent of the respondent on the ground that the plants, plant varieties, seeds, essentially biological processes etc. and the seed production activities of the petitioner were excluded subject matter under the Patents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Tribunal is also impugned by the petitioner in this petition along with arbitral award. 17. The Arbitral Tribunal framed about 16 points for determination. Both the parties led oral as well as documentary evidence before the Arbitral Tribunal. The witness examined by the respective party was cross examined by the other party. Both the parties also filed written submissions before the Arbitral Tribunal in the application filed under section 16 as well as after conclusion of the oral submissions. Two of the arbitrators made an arbitral award dated 16th January,2019 allowing the claim of the respondent partly and directed that the respondent (original claimant) is entitled to and the petitioner (original respondent) is liable to pay to the respondent herein a sum of Rs. 117.46 crores towards trait value for sales between 1st April, 2015 and 14th November,2015 under Sub-Licence Agreement, 2015 along with interest at the rate of 6% per annum from the date of invocation of the arbitration i.e. 23rd February,2016 till the date of the award and interest at the rate of 12% per annum from the date of the award till the date of payment/realization. 18. The arbitral Tribunal reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r counsel invited my attention to paragraphs 16 to 20, 24 and 26 of the order passed by the CCI making various prima facie findings against the respondent. Learned senior counsel invited my attention to various points for determination framed by the Arbitral Tribunal and the findings rendered thereon by the Arbitral Tribunal. 22. It is submitted by the learned senior counsel that the dispute between the parties referred to the Arbitral Tribunal arose from a Sub- Licence Agreement dated 10th March, 2015 which was a renewal of Sub-Licence Agreement dated 21st February, 2004. Under the said 2015 SLA, the petitioner was required to pay to the respondent the royalty "Trait Value" or trait fee to the respondent which was to be computed based on the quantity of hybrid cotton seeds containing the Bt. genes sold by the petitioner. The respondent had made a claim before the Arbitral Tribunal for recovery of trait value for the period of 1st April,2015 to 14th November,2015 of which the petitioner had paid Rs. 13.24 crores to the respondent leaving a balance of Rs. 117.46 crores. 23. It is submitted by the learned senior counsel that the respondent was abusing its dominance by charging an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o all seed companies. 26. It is submitted by the learned senior counsel that the petitioner and its group companies filed information under section 19(1)(a) of the Competition Act with the CCI placing on record various violations of the provisions of the Competition Act allegedly committed by the respondent. Learned senior counsel invited my attention to the order dated 10th February,2016 passed by the Investigation Officer on the said information filed by the petitioner and the reference filed by the Government of India making various prima facie observations against the respondent and holding that the conduct of the respondent prima facie appears to be in violation of section 4 of the Act. He submits that the respondent had invoked arbitration clause on 23rd February,2016 only after such prima facie findings were rendered by the said CCI by order dated 10th February,2016 against the respondent. 27. Learned senior counsel submits that on 13th April,2016, the said CCI passed an order under section 33 of the Competition Act holding that the provisions of SLA which required the petitioner to destroy its entire seed, parent lines and germplasm on termination of the SLA were prima fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent to the said application before the Arbitral Tribunal and would submit that the dispute before the Arbitral Tribunal and the said CCI were interlinked. He submits that the scheme of the Competition Act expressly and impliedly excludes adjudication of competition law disputes through arbitration. 31. After inviting my attention to various provisions of the said Competition Act already referred to aforesaid, learned senior counsel would submit that the provision of the Competition Act vests vast and plenary powers upon the CCI and empowers to pass various orders/grant reliefs which a civil court or Arbitral Tribunal cannot grant. He relied upon section 27 of the Competition Act and would submit that once the CCI is satisfied that there has been a contravention of sections 3 and 4 of the Competition Act, it may direct that the contract in question "shall stand modified to the extent and in the manner as may be specified" by it. He submits that under section 28, CCI is empowered to pass an order of division of an enterprise enjoying a dominant position to ensure that it does not abuse its dominant position. CCI is empowered to issue interim orders restraining a party from cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have to be found within that statutory code itself. Since sufficient and adequate remedies are provided under the Competition Act for deciding disputes relating to violation of the provisions of the Competition Act, the remedy to enforce those statutory provisions lies exclusively within the Competition Act and the jurisdiction of an Arbitral Tribunal to decide such disputes is barred. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of Fuerst Day Lawson vs. Jindal Exports Limited, (2011) 8 SCC 333 and in particular paragraphs 84, 88 and 89, judgment of Supreme Court in case of Vimal Kishor Shah vs. Jayesh Dinesh Shah, (2016) 8 SCC 788 and in particular paragraphs 50, 51 and 53 and judgment of this court in case of Dinesh Jaya Poojary vs. M/s.Malvika Chits India Pvt. Ltd., 2019 SCC Online Bom 1121 and in particular paragraphs 28 to 35 and 37 to 39. 35. It is submitted by the learned senior counsel that since the validity of the said 2015 SLA itself is under challenge under the Competition Act, the Arbitral Tribunal can only order recovery of contractual dues under such contract after the CCI first rules on the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in case of Telefonaktiebolaget LM Ericsson (PUPL) vs. Competition Commission of India, (2016) SCC Online Delhi 1591. 39. The next submission of the learned senior counsel for the petitioner is that the proceedings before the CCI were pending even prior to the date of the respondent invoking arbitration agreement relating to the validity of the said 2015 SLA and thus the Arbitral Tribunal ought to have awaited the decision of the said CCI regarding the validity of the said 2015 SLA under the provisions of the Competition Act. The monetary claim made by the respondent under the said 2015 SLA was totally dependent upon the issue of the validity of the said 2015 SLA which was pending before the CCI. The said issue was jurisdictional fact. The existence of the said SLA was a sine qua non for the exercise of the jurisdiction by the Arbitral Tribunal. 40. It is submitted that if the said CCI declares the said 2015 SLA as void under section 3 of the Competition Act, such agreement would not be an enforceable contract. In that event, the respondent could not have made any monetary claim arising under such agreement. The Arbitral Tribunal could not have conferred the jurisdiction upon it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned senior counsel placed reliance on paragraphs 46, 47, 51 and 52 of the order dated 11th May, 2017 passed by the Arbitral Tribunal. He submits that it is thus clear that the Arbitral Tribunal accepted the position that it could not proceed with the arbitration without finally deciding the issue of jurisdiction. 44. Learned senior counsel invited my attention to the issue nos. 2, 3, 3(a) to 3(f) framed by the Arbitral Tribunal for determination. He submits that the Arbitral Tribunal does not even purport to determine the plea of jurisdiction raised by the petitioner. Such plea of jurisdiction was not a stand alone plea. It is weeded inextricably to the defence, since the very enforceability and validity of the said agreement depends on it. The case of the petitioner before the Arbitral Tribunal was that the Tribunal had no jurisdiction to adjudicate upon the claim i.e. the dispute and not merely the plea of lack of jurisdiction etc. Reply to the issue nos. 3(a) to 3(f) by the Arbitral Tribunal are not in any way a determination of the plea of the petitioner as to the jurisdiction of the Arbitral Tribunal. 45. Learned senior counsel invited my attention to the findings rendered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned senior counsel invited my attention to the findings rendered by the learned Arbitral Tribunal in paragraphs 78 to 86 of the impugned award rejecting the jurisdictional objection raised by the petitioner by merely stating that the reliefs sought by the respondent only relates to the alleged breaches of the said 2015 SLA and therefore the Arbitral Tribunal had jurisdiction to deal with the same. The Tribunal completely ignored the fact that the jurisdictional plea raised by the petitioner pertained entirely to the enforceability of the claim itself and involved matters relating to the Competition Act which could only be adjudicated by the CCI. 48. It is submitted by the learned senior counsel that even in a civil suit, where a question of jurisdiction is raised, it can either be decided on a demurrer or as an issue in the proceedings. If it is decided on a demurrer, it is to be decided taking the statements contained in the plaint to be correct. However, where the objection is decided as an issue in the proceedings, it would have to be decided after giving the parties an opportunity to lead evidence. He submits that the Arbitral Tribunal could not have decided issue nos. 2 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the parties are at variance and desirous of obtaining a decision of the court. He relied upon the judgment of the Supreme Court in case of Indian Farmers Fertilizer Co-operative Ltd. vs. Bhadra Products, (2018) 2 SCC 534 and in particular paragraph 18 and in case of Gangai Vinayagar Temple vs. Meenakshi Ammal, (2009) 9 SCC 757 and in particular paragraph 53. 52. It is submitted by the learned senior counsel that the Arbitral Tribunal has permitted the recovery of the trait value in excess of that prescribed under statutory price control notifications issued by the various State Governments from the petitioner. Various State Governments had introduced legislation to inter alia regulate the maximum sale price including the trait value charged for the Bt. cotton seed. He relied upon the Andhra Pradesh Cotton Seeds (Regulation pf Supply Distribution, Sale and Fixation of Sale Price) Act, 2007 and the Maharashtra Cotton Seeds (Regulation of Supply, Distribution, Sale and Fixation of Sale Price) Act, 2009. He relied upon A.P. Act and the explanatory statement thereto and would submit that the State Government had clearly intended on fixing the maximum sale price of the Bt. hybrid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with Indian law. 56. Learned senior counsel invited my attention to the order passed by the Division Bench of the Delhi High Court against the said order passed by the learned Single Judge and would submit that the Division Bench of the Delhi High Court dismissed the appeal filed by the respondent bearing appeal no.FAO (OS) (Comm.) No. 76 of 2016. The petitioner had also filed a separate appeal being FAO (OS) (Comm.) No.86 of 2016 challenging the directions passed by the learned Single Judge. On 11th April, 2018, the Division Bench allowed the appeal filed by the petitioner and revoked the patent of the respondent over Bt.cotton seeds. 57. The respondent filed Special Leave Petition before the Hon'ble Supreme Court which was converted as Civil Appeal Nos. 4616-4617 of 2018. He submits that the respondent did not challenge the order of dismissal of the appeal filed by the respondent. The Division Bench of the Delhi High Court accepted the finding of the learned Single Judge on the issue of wrongful termination of the said 2015 SLA and the modification of the same in terms of the trait value fixed under the price control modification. 58. Learned senior counsel invited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of its patent. In support of this submission, learned senior counsel relied upon Articles 1.24, 1.25, 1.32, 2.01, 2.05(k), 2.05(l), 3.01, 9.02(b)(i), 9.04 and 9.06 of the said 2015 SLA. He submits that the petitioner had urged before the Arbitral Tribunal that the patent of the respondent was invalid in view of section 3(j) of the Patents Act, 1970 which expressly prohibits the patenting of plants, in whole or part thereof including seeds, varieties and essential biological processes. 62. It is submitted that the rights of the respondent if any in respect of its technology could only be protected under the Protection of Plant Varieties and Farmers Rights Act, 2001 (for short PPVFR Act) which is a sui generis legislation for the protection of plant varieties, farmers rights and breeders' rights. The respondent could not have a valid patent in respect of such technology purportedly licensed under the said 2015 SLA. The said rights claimed by the respondent under the said 2015 SLA are forbidden by law. The said 2015 SLA was void and thus no payment was required to be made by the petitioner to the respondent under the said agreement. 63. It is submitted by the learned senior couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shyam, (1971) 1 SCC 619 and in particular paragraphs 6 and 8 which judgment is relied upon by the Arbitral Tribunal to hold that the benefit sharing mechanism under section 26 of the PPVFR Act is a personal benefit available to the petitioner and therefore the petitioner could have waived such personal benefit by electing to enter into the SLA. He submits that this view of the Arbitral Tribunal is totally erroneous and contrary to the provisions of the PPVFR Act. The petitioner could not have waived the benefit, if any available to its under the said PPVFR Act. 67. Learned senior counsel strongly placed reliance on section 92 of the PPVFR Act and would submit that the said provision gives the Act overriding effect over any law or "instrument" inconsistent with its provisions. He submits that a contract, including the SLA, would be covered under the word 'instrument' used in section 92 and thus the said Act has overriding effect on the said 2015 SLA. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Vishnu Pratap Sugar Works (P) Ltd. vs. Chief Inspector of Stamps (U.P.), AIR 1968 SC 102 and in particular paragraph 3. He also placed reliance on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Delhi High Court and if the respondent's patent was ultimately revoked, then there would be a complete failure of consideration under the said 2015 SLA. 71. Learned senior counsel for the petitioner submits that various findings rendered by the Arbitral Tribunal were based on the factually incorrect premise. Section 2(3) of the Arbitration Act has to be read with sections 60 and 61 of the Competition Act. Section 60 of the Competition Act clearly provides that the provisions of the said Act would have effect notwithstanding anything thereof contacting any other law for the time being in force. The Arbitral Tribunal ought to have interpreted sections 60 to 62 of the Competition Act harmoniously. Arbitral Tribunal could not have read section 62 in such a way as to render the mandate of sections 60 and 62 of the Competition Act nugatory. 72. Mr. Iqbal Chagla, learned senior counsel for the respondent on the other hand invited my attention to the various paragraphs of the pleadings, documents forming part of the record before the Arbitral Tribunal, evidence led by the parties, various orders passed by the Delhi High Court and the Supreme Court in the infringement suit, order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at one of the components of maximum selling price of cotton seeds is trait value itself. He submits that the petitioner has already paid approximately Rs. 14 crores under the said 2015 SLA till June 2015. The petitioner however started raising dispute regarding the quantum of trait value thereafter and stopped making payments to the respondent. The petitioner had also deposited TDS amount with the authorities in favour of the respondent on 24th July, 2015 and 16th May, 2016 without making the payment of the balance amount to the respondent. He submits that the petitioner did not raise any dispute with regard to the quantum/quantification of the amounts due by the petitioner to the respondent before the arbitral tribunal and even before this court. The contractual rate had been arrived at after extensive negotiations and under legal advice as recorded in Article 11.10 of the 2015 SLA for almost 9 months, with full knowledge of the State Government Notifications. 76. It is submitted that the petitioner and its associate companies were fully aware that the State Government Notifications did not fix the trait value payable by them to the respondent but fixed only the maximum selling p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G-I cotton seeds costing Rs. 750/- per packet for the period 2006-2008 onwards and Rs. 266/- per packet of BG-II cotton seeds costing Rs. 950/- per packet for the period 2007-2008 onwards. On 8th May, 2007, in view of the settlement, the State of Andhra Pradesh filed an additional affidavit before the MRTPC bringing on record the (1) Settlement and Release of Claims Agreement and (2) Supplementary and Amendment Agreement executed by and between the parties on 25th January, 2007 and prayed that the matter before the MRTPC had become infructuous. He submits that on 25th May, 2007, the second amendment agreement was executed between the parties under the trait value for BG-II further reducing the amount to Rs. 225/- per packet for a packet costing upto Rs. 950/- per packet. 79. It is submitted by the learned senior counsel that on 11th June, 2008, the Andhra Pradesh Cotton Seeds (Regulation of Supply, Distribution, Sale and Fixation of Sale Price) Act, 2007 was enacted. Section 11 thereof provides for fixation of the maximum sale price after taking into consideration various factors including trait value of a cotton seed. The Maharashtra Cotton Seeds (Regulation of Supply, Distributi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the notice after deducting Rs. 9,49,03,263/- already paid by the petitioner to the respondent. Delhi High Court recorded in the said order that the petitioner had agreed to pay the amount claimed in the termination notice dated 19th November, 2009 within the time period stipulated in it. Delhi High Court accordingly disposed of the said arbitration petition having become infrutuous keeping all the rights and contentions of both the parties left open. 82. In the Writ Petition No.6802 of 2010 filed by the respondent before the Andhra Pradesh High Court challenging the prospective action of the State Government to fix trait value, the State of Andhra Pradesh stated that neither the 1st nor 2nd respondent expressed any intention/desire to determine/fix trait value. Andhra Pradesh High Court in the said order dated 20th April, 2010 held that after coming into force of the said legislation in terms of the legislative mandate under section 11 of the said Act, the Government fixed the maximum sale price of the several categories of cotton seeds at various rates in the year 2008-2009 duly taking into account the trait value charged which in the opinion of the Government is reasonable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etation by this Court under Section 34 of the Arbitration Act. 86. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of McDermott International Inc v/s. Burn Standard Co. Ltd., (2006) 11 SCC 181 and in particular paragraph 111 and judgment of this Court in case of Fermenta Biotech Limited v/s. KR Patel in Arbitration Petition No. 545 of 2017 and in particular paragraph 10. He also placed reliance on the judgment of this Court in Arbitration Petition No. 1714 of 2014 in case of JSW Steel Limited v/s. ICICI Lombard General Insurance Company Limited and in particular paragraphs 16 and 17. Learned senior counsel also placed reliance on the judgment of the Supreme Court in case of Associate Builders v/s. Delhi Development Authority, (2015) 3 SCC 49 and in particular paragraphs 15, 22, 41 and 42 and in case of Ssangyong Engineering & Construction Company Limited v/s. National Highways Authority of India, (2019) SCC OnLine SC 677 and in particular paragraphs 33 to 41 in support of a submission that scope of interference with the Arbitral Award under Section 34 of the Arbitration Act is extremely narrow. 87. It is submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondent before the arbitral tribunal were within the jurisdiction of the arbitral tribunal and could not be ousted. The petitioner had never challenged the said 2015 SLA as void ab-initio before the said CCI. On the contrary, the petitioner had prayed for specific performance of the said 2015 SLA before the said CCI. He submits that the proceedings before the said CCI predominantly dealt with post-termination obligations. The interim order passed by the said CCI on 13th April, 2016 also was confined itself only with post-termination obligations of the parties. 90. It is submitted by the learned senior counsel that for deciding the issue of jurisdiction, triple test under Section 16 of the Arbitration Act applies only to three things: (1) whether there is in existence a valid arbitration agreement, (2) whether the arbitral tribunal is properly constituted and (3) whether the matters submitted to arbitration are within the scope of the arbitration agreement. He submits that in this case such triple test of initial jurisdiction is completely satisfied. The petitioner has not disputed the existence of validity of arbitration agreement. It is not the case of the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kataswamy, (1976) 2 APLJ 28 and in particular paragraphs 1, 3 and 6. 94. Learned senior counsel distinguished the judgments of the Supreme Court in case of A. Ayyasamy (supra) and paragraphs of the judgment in case of Vimal Kishore Shah (supra) relied upon by the petitioner and judgment of this Court in case of Dinesh Jaya Poojary (supra) on the ground that the Supreme Court and this Court in those judgments has held that the claims made by the claimant himself were non-arbitrable in the fact situation of those matters. He submits that those judgments are clearly distinguishable in the facts of this case. 95. Learned senior counsel invited my attention to Section 61 of the Competition Act and would submit that the jurisdiction of the arbitral tribunal is ousted only in respect of any matter which the commission or the appellate tribunal is empowered by or under the Competition Act to determine. If any matter is incapable of being determined under the Competition Act, such a matter is not excluded under Section 61 of the Competition Act to be ousted by the arbitral tribunal. The petitioner has already conceded this position in law during the course of the arguments. 96. It is sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ims. 98. In support of the aforesaid submissions, learned senior counsel placed reliance on the following Judgments :- (a) Judgment of Supreme Court in case of Saurabh Prakash v/s. DLF Universal Limited, (2007) 1 SCC 228 and in particular paragraphs 34 and 35. (b) Judgment of Supreme Court in case of Pawan Hans Limited v/s. Union of India, (2003) 5 SCC 71 and in particular paragraph 9. (c) Judgment of Delhi High Court in case of Telefonaktiebolaget LM Ericson (PUBL) v/s. CCI, (2016) SCC OnLine Del 1951 and in particular paragraphs 153, 154, 168, 173, 175, 176 and 180 to 182. (d) Judgment of Supreme Court in case of Balawaa v/s. Hasanabi, (2000) 9 SCC 272 and in particular paragraphs 7 and 8. (e) Judgment of Supreme Court in case of Girnar Traders v/s. State of Maharashtra, (2011) 3 SCC 1 and in particular paragraphs 79 &d 80. 99. It is submitted by the learned senior counsel that the said 2015 SLA has not been admittedly declared to be void till date. The petitioner in the said proceedings before the said CCI has sought a continuation of the said 2015 SLA and not for declaration of the said agreement as void. In the infringement proceedings filed by the respondent befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar paragraphs 7, 27, 28, 34 and 50. 102. In so far as the reliance placed by the learned senior counsel for the petitioner on the order dated 10th February, 2016 passed by the said CCI is concerned, it is submitted by the learned senior counsel for the respondent that the said order has been challenged by the respondent in Writ Petition No. 1776 of 2016. By an order dated 29th February, 2016, the Delhi High Court has directed that no final order should be passed by the said CCI and that any interim order under Section 33 shall not be given effect to without the leave of the Delhi High Court. The said Writ Petition filed by the respondent is still pending before the High Court. 103. It is submitted that the said order passed under Section 26(1) of the Competition Act is merely an administrative direction which is internally issued without any adjudicatory process and it does not effectively determine any right or obligation of the parties. Such order does not entail any civil consequences. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of CCI v/s. SAIL, (2010) 10 SCC 744 and in particular paragraph 38. He also placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular paragraphs 2 and 16 to 20. He submits that if the arbitral tribunal would have rendered a decision on issue nos. 2 and 3, it would have clearly exceeded its jurisdiction and such award would have been set aside under Section 34(2)(b)(i) of the Arbitration Act. In support of this submission, learned senior counsel placed reliance on the judgment of this Court in case of Union of India v/s. Sarthi Enterprises, (2015) SCC OnLine Bom 1511 and in particular paragraph 27. The said judgment of learned Single Judge has been upheld by the Division Bench in case of Sarthi Enterprises v/s. Union of India, (2016) 6 MHLJ 598. 107. It is submitted by the learned senior counsel that whilst deciding its jurisdiction as well as whilst deciding on the exclusion of its jurisdiction, the arbitral tribunal also considered the defence raised by the petitioner that raises issue of competition law and rightly held that those issue cannot be determined by the arbitral tribunal but can be determined by the said CCI under the competition law. The arbitral tribunal rightly did not express any opinion on issue nos. 2 and 3 and ensured that the proceedings of the petitioner before the said CCI coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al tribunal could have adopted i.e. (a) to dismiss the entire claim of the respondent. The respondent in that event should initiate arbitration after a final order in its favour under the Competition Act is passed by the said CCI or (b) to stay the arbitral proceedings under Section 9 and/or Section 17 of the Arbitration Act and (c) to seek a indefinite extension of time under Section 29A of the Arbitration Act. 111. It is submitted by the learned senior counsel for the respondent that the option (a) suggested by the learned senior counsel for the petitioner is untenable in law on the ground that the claim of the respondent was arbitrable and was not capable of being granted by the said CCI, (ii) claim of the respondent would be extinguished by the law of limitation if the respondent were to await the final order of the CCI. In so far as the suggestion of the learned senior counsel for the petitioner that the arbitral proceedings were liable to be stayed under Section 9 and/or Section 17 of the Arbitration Act is concerned, it is submitted by the learned senior counsel that the said contention raised by the petitioner is untenable. There is no provision in the Arbitration Act to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patents. It is submitted that no other arguments regarding Patent Act was argued during the course of arguments by the learned senior counsel for the petitioner and are therefore deemed to have been given up. The petitioner has simplicitor raised a plea that the said 2015 SLA is forbidden by Section 3(j) of the Patents Act and thus is void under Section 23 of the Indian Contract Act, 1872. He submits that this argument of the petitioner is totally untenable. Section 3(j) of the Patents Act does not prohibit any type of agreement or declare any type of agreement void. 115. It is submitted that the claim of the respondent in the arbitral proceedings were not for recovery of patent fees but was for recovery of contractual payment of trait fees. Unless the patent of the respondent is set aside, the respondent has right to claim under the said patent of the respondent. Learned senior counsel invited my attention to the findings rendered by the arbitral tribunal in paragraphs 159 and 161 of the arbitral award and would submit that the arbitral tribunal has clearly recorded a finding that the claims made by the respondent were not based on the patent right. Such findings of fact in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radesh High Court in a writ petition by filing an affidavit that it did not intent to fix the trait value/license fee. State of Telangana had also fixed Maximum Sales Price under the AP Cotton Seeds Act. The Andhra Pradesh High Court has stayed the Government notification issued by the State of Andhra Pradesh. On 31st March, 2016, the said notification issued by the State of Andhra Pradesh has lapsed. On 20th April, 2016, a Division Bench of the Andhra Pradesh High Court stayed the operation of the judgment delivered by the learned single Judge but made it clear that stay order would not affect the arbitrations. 120. Learned senior counsel invited my attention to various findings rendered by the arbitral tribunal in the majority award in paragraphs 204, 210, 211, 213 and 215 and would submit that these findings of fact being not perverse cannot be interfered with by this Court. The arbitral tribunal has not followed the orders passed by the Delhi High Court. The Delhi High Court has considered the notifications issued by the Central Government on 1st April, 2016 whereas in this case the respondent had made a claim only upto 14th October, 2015. The said judgment delivered by the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Supreme Court or not is concerned, learned senior counsel for the respondent invited my attention to the minutes of meeting dated 16th January, 2019 on page 531 of the Convenient Compilation No.II of the documents. No prejudice of any nature was caused to the petitioner. The arguments were already concluded between the parties before the arbitral tribunal when such request was made by the petitioner. 125. In so far as the issue nos. 2 and 3 framed by the arbitral tribunal is concerned, it is submitted that the arbitral tribunal could not have gone into and decided whether the said 2015 SLA was void or not based on the provisions of the Competition Act. He submits that the petitioner has not challenged the amounts awarded by the arbitral tribunal on merits in the arbitration petition. In so far as the alleged concession made by the respondent before the Supreme Court recorded in paragraph 10 of the order dated 1st January, 2019 passed by the Supreme Court is concerned, it is submitted by the learned senior counsel that the said alleged concession was specifically qualified by the phrase 'at this stage' which demonstrates that it was a statement applicable at the interim stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the arbitral tribunal to adjourn the arbitral proceedings sine die. The powers of Writ Court cannot be compared with the powers of the arbitral tribunal. 128. Learned senior counsel for the respondent distinguished the judgment of Supreme Court in case of Fuerst Day Lawson Ltd. (supra) on the ground that the Supreme Court in that judgment had considered the issue whether the appeal was maintainable under Section 50 of the Arbitration Act by exercising powers under Letters Patent. In that context, the Supreme Court held that the provisions of Arbitration and Conciliation Act, 1996 being a self-contained code the Letters Patent Appeal would be excluded. He submits that the said judgment would infact support the case of the respondent and not the petitioner on the issue that the Arbitration and Conciliation Act is a self-contained code. He submits that the claim that cannot be entertained by the Competition Act but only by the arbitral tribunal, the arbitral tribunal only has exclusive jurisdiction to consider and grant monetary relief in favour of the respondent. There is no provisions in the Competition Act provide for adjudication of contractual disputes/civil action in personam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion agreement. 132. Learned senior counsel distinguished the judgment of this Court in case of Dinesh Jaya Poojary (supra). He invited my attention to the paragraphs 3, 28, 33, 34, 37, 38 and 39 of the said judgment and would submit that admittedly the CCI is not empowered to adjudicate upon the contractual claim of the respondent for unpaid trait value. The claimant in that case had approached the arbitral tribunal for a claim which should have been filed before the Registrar under the Chit Funds Act. The dispute raised and the relief claimed in the statement of claim fell exclusively within four corners of the said Act as it was touching the management of a chit business. 133. Learned senior counsel distinguished the judgment of this Court in case of Kingfisher Airlines Ltd. (supra) on the ground that this Court had dealt with a claim for unpaid wages. The dispute for recovery of unclaimed wages was an industrial dispute for which exclusive remedies were provided under the Industrial Disputes Act and thus non-arbitrable. In this case, admittedly monetary claim cannot be awarded by the CCI and could be dealt with and considered exclusively by the arbitral tribunal. 134. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India (supra) relied upon by the learned senior counsel on the ground that the said judgment support the case of the respondent and not the petitioner. It was held by the Supreme Court in the said judgment that an order under Section 26(1) of the Competition Act is only akin to a departmental function and does not affect rights and liabilities of parties. He submits that while the Court has imposed restrictions on the CCI while passing interim orders under Section 33 of the Competition Act, that would not convert an interim order into an order of a final nature. The interim orders passed by the CCI was even otherwise not binding on the arbitral tribunal and does not constitute res-judicata in the arbitral proceedings. 137. Learned senior counsel distinguished the judgment of Supreme Court in case of Gangai Vinayagar Temple and Ors. (supra) on the ground that the provisions of Order XLI Rule 1 of Code of Civil Procedure, 1908 does not apply to arbitrations. Even if issues are framed by the arbitral tribunal, the arbitral tribunal does not decide every such issues. If a particular issue is incapable of decision, the arbitral tribunal will not decide such issue. 138. Learned senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said judgment has been set aside by the Division Bench of this Court reported in 2019 SCC Online Bom 2915. The Special Leave Petition filed against the said judgment of the Division Bench of this Court has been dismissed. The judgment of the learned Single Judge thus cannot be relied upon by the petitioner. 142. Learned senior counsel distinguished the judgment of Delhi High Court in case of Telefonaktiebola get LM Ericsson (supra) on the ground that the said judgment is not applicable to the facts of this case since the claim of the respondent was referred to arbitration and did not involve enforcement of right or any obligation under the Patent Act. He submits that on the contrary, the said judgment supports the case of the respondent since it holds that the Competition Act does not oust the jurisdiction of other forum/bodies on other matters relegated to other forum/body, even if the issues are related. He submits that the provisions of Arbitration and Conciliation Act, 1996 and the Competition Act must be read in their respective context and both the schemes must be given effect to. The said judgment was delivered by a learned Single Judge of Delhi High Court is under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the said CCI, the arbitral tribunal could not have proceeded on the premise that there was a valid agreement between the parties and based thereon could not have awarded any reliefs in favour of the respondent. Learned senior counsel invited my attention to the paragraph 5 of the judgment of Supreme Court in case of Vallabhdas v/ s. Dr. Madanlal, (1970) 1 SCC 761 and submits that the arbitral tribunal ought to have considered whether there was a jural relationship between the petitioner and the respondent or not, before granting any relief in favour of the respondent. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of Prabhakaran and Ors. v/s. M. Azhagiri Pillai (Dead) by LRs. and Ors., (2006) 4 SCC 484 and in particular paragraph 20. 146. Learned senior counsel invited my attention to the findings rendered by the arbitral tribunal in paragraph 51 of the arbitral award holding that the jurisdiction of the arbitral tribunal has to be considered only on the basis of the averments made in the statement of claim and not in the written statement. He relied under Sections 21, 23(3), 34(2) (iv) and 34(2)(b)(i) of the Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the difference. The Competition Commission of India has already taken a prima-facie view on the issue of validity of the said 2015 SLA against the respondent and in favour of the petitioner herein. 149. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Man Roland Druckimachinen AG v/s. Multicolour Offset Ltd. and Anr., 2004 (7) SCC 447 and in particular paragraphs 18 and 46, in support of submission that issue of jurisdiction can be either taken by way of demurrer or at the time of trial. The arbitral tribunal in this case had not decided the issue of jurisdiction under Section 16 of the Arbitration Act immediately on demurrer but had postponed the said issue and decided the same finally in the impugned award only on the basis of the averments made in the statement of claim. 150. Learned senior counsel distinguished the judgment of Supreme Court in case of Indian Farmers Fertiziler Cooperative Limited (supra) on the ground that the jurisdictional issue under Section 10 has to be decided based on the issues raised by both the parties and not only on the basis of the averments made and the contentions raised in the statement of claim by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the petitioner cited judgment of Supreme court in case of Tarsem Singh v/s. Sukhminder Singh, 1998 (3) SCC 471 and in particular paragraphs 30 to 33 and would submit that since the said 2015 SLA itself was void since inception, no relief could have been granted by the arbitral tribunal arising out of the said 2015 SLA. The arbitral tribunal could not have awarded any monetary relief under the said 2015 SLA unless the said agreement was found legally enforceable and valid agreement by the said CCI. 156. Learned senior counsel for the petitioner distinguished the judgment of Supreme Court in case of Piloo Dhuinshaw Sidhwa (supra) on the ground that the Supreme Court in the said judgment had considered a claim for compensation under Section 70 of the Contract Act on the basis of quantum meruit. In this case the arbitral tribunal has not allowed the claims made by the respondent on the basis of quantum meruit under Section 70 of the Contract Act but has allowed the said claim on the basis of the said 2015 SLA as enforceable in law. 157. Learned senior counsel for the petitioner distinguish the judgment of Supreme Court in case of Hansraj Gupta & Co. vs. Union of India, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent did not make any complaint against the petitioner for supply of seeds. The petitioner did not apply for declaration of the said 2015 SLA as void before the said CCI but had applied for modification of the said agreement. The said CCI can still declare the said 2015 SLA as void. The petitioner had applied for relief before the said CCI not to terminate the said 2015 SLA but had prayed for stay of termination. Learned senior counsel did not dispute that the petitioner is not register under the PPVFR Act. He submits that the provisions of the said Act are also self-contained. The respondent had not taken action against the petitioner for not registering itself under the said Act. 161. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Mahavir J. Patil vs. Director of Resettlement and others, 2009 (12) SCC 625 and in particular paragraphs 6 and 9 and would submit that the principles of law laid down by the Supreme Court in the said judgment would apply to the facts of this case. Learned senior counsel invited my attention to the averments made in paragraph 21 at page 119 of the convenient compilation no.1 and would submit that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned senior counsel distinguished the judgment of Supreme Court in case of Prabhakaran and Ors. (supra) and would submit that the said judgment explains the meaning of "jural relationship" between the parties which would mean the rights and obligations of both against each other in the context of Section 29 of the Limitation Act. The jural relationship between the parties is undisputed and was subject matter of the arbitral proceedings. 166. Learned senior counsel distinguished the judgment of Supreme Court in case of State of Goa v/s. Praveen Enterprises (supra) on the ground that the said judgment lays down the proposition that the counter claim ought to be considered by the arbitral tribunal if raised by the respondent in the arbitration proceedings, even though the same does not form the part of notice invoking arbitration agreement. The said judgment does not lay down a law that the defence of the respondent is a part of the reference to the arbitral tribunal. 167. Learned senior counsel distinguished the judgment of Supreme Court in case of Ram Singh and Ors. (supra) on the ground that the claim of the plaintiff in that case itself pertained to "shamlet de" land. The Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 27 of the Competition Act including modification of the agreement. He relied upon paragraphs 32 of the said judgment and would submit that the Supreme Court infact rejected the argument that Section 65 of the Contract Act was not applicable to void contracts. He relied upon the judgment of Supreme Court in case of Mahindra and Mahindra Limited v/s. Union of India, (1979) 2 SCC 529 and judgment in case of Passmore v/s. Morland, (1999) 1 CMLR 1129 holding that voidness under Competition Law is transient or temporal and is therefore curable. Facts and Submissions in Commercial Arbitration Petition No. 738 of 2019 :- 170. The petitioner in this case has impugned the order dated 11th May, 2017 passed by the arbitral tribunal dismissing the application filed by the petitioner under Section 16 of the Arbitration Act and the impugned award dated 16th January, 2019 allowing some of the claims made by the respondent. Some of the relevant facts for the purpose of deciding this petition are as under:- 171. It is the case of the petitioner that on 9th March, 2004, a Special Licence Agreement (for short "2004 SLA") was executed between the petitioner and the respondent wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 737 of 2019 filed an Information before the said CCI against the respondent and its group companies challenging several alleged anti-competing clauses and alleged abusive conduct of the respondent including charge of high trait value over the State Government Price Control Notifications. On 10th February, 2016, the said CCI passed an order holding that there is then existed a prima- facie case of contravention of the provisions of Section 3(4) and Section 4 of the Competition Act by the respondent and its group of companies and directed the Director General to investigate into the matter. 175. The said CCI also passed an interim order on 13th April, 2016 thereby restraining the respondent from enforcing post termination obligation against the petitioner in this Commercial Arbitration Petition and also against others. The Director General thereafter submitted a report on 28th January, 2008 before the said CCI. The said CCI by a letter dated 12th March, 2019 directed the parties including 18 official of the respondent to collect the non-confidential Investigation Report by filing undertaking that the investigation report would not be used for any purpose other than those provided un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, learned senior counsel for the respondent on the other hand adopted the submission made by Mr. I. M. Chagla, learned senior counsel for the respondent in Commercial Arbitration Petition No. 737 of 2019 and made additional submissions. He submitted that trait value claimed by the respondent in the arbitration petition has already been collected by the petitioner from the farmers and has been retained by the petitioner. The petitioner did not seek any interim stay against the respondent from enforcing any claim for money or stay of the trait value clause under Article 3.01 of the said 2015 SLA. The claim for recovery of money under the said 2015 SLA made by the respondent was for recovery of contractual dues in view of the petitioner being in breach of the said 2015 SLA. There was no dispute with regard to the quantum of dues under the invoices raised by the respondent on the submission. 181. Learned senior counsel invited my attention to paragraph 52 of the statement of defence filed by the petitioner and would submit that it was the case of the petitioner that if the issue "whether the agreement is violative of Sections 3 and 4 of the Competition Act can only be decided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner did not challenge the validity of the said 2015 SLA as void and prayed that the respondent shall not terminate the said 2015 SLA. 184. It is submitted by the learned senior counsel that the arbitral tribunal is not bound to wait for outcome of the proceedings under Section 3 of the Competition Act and to stay the arbitral proceedings during the pendency of the said proceedings under Section 3 of the Competition Act before the said CCI. Facts and Submissions in Commercial Arbitration Petition No. 892 of 2019 :- 185. The petitioner has impugned the order dated 11th October, 2017 passed by the learned arbitrator rejecting his application filed under Section 16 of the Arbitration and Conciliation Act, 1996 filed by the petitioner and also has impugned the arbitral award dated 30th March, 2011 passed by the learned arbitrator allowing part of the claims made by the respondent. Some of the relevant facts for the purpose of deciding this Commercial Arbitration Petition are as under :- 186. On 9th March, 2004, the petitioner and the respondent entered into a Special Licence Agreement ("2004 SLA") wherein the respondent gave 50 Cotton seeds with Bt. trait to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government Price Control Notifications. 189. It is the case of the petitioner that on 10th February, 2016, the said CCI passed an order after hearing the parties holding that there existed a prima-facie contravention of provisions of Section 3(4) and Section 4 of the Competition Act by the respondent and its group companies and directed the Director General to investigate into the matter. On 18th February, 2016, the respondent and its group companies filed an infringement suit before the Delhi High Court bearing No. 132 of 2016 inter-alia alleging that pursuant to the termination of the said 2015 SLA, the petitioner's sale of all cotton seeds with Bt. trait infringed its patent rights in the said proceedings. 190. The petitioner filed a counter claim for revocation of the patent of the respondent in the said suit. The said suit is still pending before the Delhi High Court. On 23rd February, 2016, the respondent invoked the arbitration agreement recorded in the said 2015 SLA for settling the dispute by way of arbitration. In the month of April, 2016, CCI passed an order restraining the respondent from enforcing post termination obligation against the petitioner and its group c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. cotton seeds charged by the respondent and others. The petitioner had filed an information under Section 19(1)(a) of the Competition Act with the CCI against the respondent alleging violation of the Competition Act on various grounds. The investigation officer submitted a report and recorded that the CCI was of a view there exist a prima-facie case of contravention under Sections 3 and 4 of the Competition Act by the respondent and thus was a fit case for investigation by the Director General to conduct the investigation. 194. It is submitted that only after such investigation order was passed by the CCI, the respondent invoked the arbitration agreement recorded under Article 11.02 of the said 2015 SLA to recover the trait value allegedly due from the petitioner to it. He relied upon the interim order passed by the said CCI on 13th April, 2016 under Section 33 of the Competition Act thereby restraining the respondent from enforcing certain post termination obligation under the said 2015 SLA. The Director General submitted its investigation report with the said CCI on 28th June, 2018. 195. In support of his submission that the dispute pertaining to competition are non arbitrabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion to the findings rendered by the learned arbitrator in paragraph 58 of the impugned award and would submit that the finding of the learned arbitrator that the learned arbitrator did not have jurisdiction is fallacious, erroneous and requires to be rejected. Learned senior counsel placed reliance on Section 61 of the Competition Act and would submit that the said provisions expressly oust the jurisdiction of the Civil Court to entertain any proceedings in respect of any matter which the CCI was empowered to determine. He relied upon the judgment of Supreme Court in case of Dhulabhai v/s. State of Madhya Pradesh (supra) and in particular paragraph 35 in support of the submission that since there was a ouster of the jurisdiction of the Special Court to entertain any proceedings in support of any matter which the CCI was empowered to determine under Section 61, the Civil Court or the learned arbitrator had no jurisdiction to decide the claims made by the respondent. 199. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Booz Allen Hamilton Inc. v/s. SBI Home Finance Limited, (2011) 5 SCC 532 and in particular paragraphs 35, in support of his submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through their association or trade association. Under Section 27(d) of the Competition Act, CCI may even direct that the contract in question stands modified to the extent and in the manner as may be specified by it. 202. In support of the submission that the Competition Act is a complete self-contained code providing the statutory right of protection and remedies against anti-competitive conduct, learned senior counsel placed reliance on the judgment of Delhi High Court in case of Jindal Steel & Power Ltd. v/s. Union of India, 2012 (127) DRJ 285 and in particular paragraphs 24. 203. Learned senior counsel for the petitioner placed reliance on Section 2(3) of the Competition Act which provides that the part 1 shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to the arbitration. He submits that if Sections 60 and 61 of the Competition Act and Section 2(3) of the Competition Act are read together, it is clear that jurisdiction of the arbitral tribunal is ousted while dispute pertaining to Competition Law arising between the parties is concerned. 204. Learned senior counsel for the petitioner submits that there can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have decided in favour of the respondent, the respondent could have always invoked arbitration after its final order would have been passed by the said CCI. 207. Mr. Pravin Samdhani, learned senior counsel for the respondent on the other hand adopts the submission made by the Mr. Chagla, learned senior counsel for the respondent in Commercial Arbitration Petition No. 737 of 2019 and Mr. Dwarkadas, learned senior counsel for the respondent in Commercial Arbitration Petition No. 738 of 2019 and made additional submissions. The facts in Commercial Arbitration Petition No. 892 of 2019 are identical to the facts in other two matters. The petitioner had not disputed the existence of the 2015 SLA. The petitioner has also not raised any dispute about the quantum and the trait value under the said 2015 SLA. He submits that the petitioner had made a counter claim against the respondent under 2004 SLA which was rejected by the arbitral tribunal. The petitioner has challenged the said part of the award. 208. It is submitted that the only remedy available to the respondent in law for recovery of the amount payable under the said 2015 SLA was by invoking the arbitration agreement and not by fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy of a complaint before the said CCI by the petitioner cannot result in either a declaration of voidness under Section 3 or the passing of an order under Section 27 of the Competition Act, 2002. The said 2015 SLA is accordingly deemed to be valid and enforceable unless expressly declared to be void. 211. It is submitted by the learned senior counsel that the stand of the petitioner that in view of the pendency of the complaint filed by the petitioner against the respondent under the provisions of the Competition Act, 2002, such allegations cannot be looked into by the learned arbitrator and on that ground itself the monetary claim made by the respondent ought to have rejected is concerned, he submits that this stand is dishonest, absurd and baseless. The entire defence of the petitioner is based on assumption that the said 2015 SLA is void. No such declaration has been rendered by the said CCI till date. 212. It is submitted by the learned senior counsel that the entire award must be read as a whole and the exercise of cherry picking stray observation in one of the paragraphs of the different context cannot be adopted to challenge an arbitral award. He submits that it is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned arbitrator is a plausible view on the facts and in law and thus cannot be interfered with by this Court in this Commercial Arbitration Petition filed under Section 34 of the Arbitration Act. Learned senior counsel invited my attention to paragraphs 47, 48, 57, 59, 63, 68 to 71, 74, 78 and 190 of the impugned award and would submit that various findings of fact rendered by the learned arbitrator being not perverse cannot be interfered with by this Court. Learned senior counsel distinguished the judgment of Supreme Court in case of A. Ayyasamy (supra). He relied upon the judgment of Supreme Court in case of National Institute of Mental health and Neuro Science v/s. C. Parameshwara, 2005 (2) SCC 256 and in particular paragraphs 8 to 10. Learned senior counsel relied upon paragraph 48 of the judgment of Supreme Court in case of Vimal Kishore Shah (supra) and would submit that the Supreme Court has considered the principles of general applicability in the said judgment. 216. Mr. N. H. Seervai, learned senior counsel for the petitioner in rejoinder submits that the learned arbitrator ought to have dismissed the claims made by the respondent in view of the pending enquiry before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he balance amount of trait value and raised frivolous issues by letter dated 19th July, 2015 thereby refusing to make payment of the trait value. 220. It was contended by the petitioner that the petitioner was entitled to challenge the trait fee recovered by the respondent from the petitioner as specified under Article 3 of the respective SLA statutorily modified in the light of the Andhra Pradesh, Gujarat and Maharashtra Cotton Seeds (Regulation of Supply Distribution, Sale and Fixation of Sale Price) Act along with notification thereunder and that the respondent should have challenged the trait fee accordingly since 2010. Prior to issuance of the said letter dated 19th July, 2015, several proceedings had been filed by various Seed Associations of which the petitioner or its group companies were members challenging those Cotton Seeds Act and notifications in various fora. It was the case of the respondent that various seed companies including the petitioner and/or the NSL Group had unequivocably accepted that the trait value payable by the seed companies including the petitioner to the respondent was a matter of contract. After failing in their challenge, the petitioner and the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue against the petitioner for the sales between 1st April, 2015 and 31st October, 2015 and a sum of Rs. 690,249/- as and by way of trait value on 1st November, 2015 and 14th November, 2015 under the 2015 Sub-Licence Agreement. The said claim was resisted by the petitioner by filing written statement. Alongwith the said written statement, the petitioner had also filed a counter claim against the respondent inter alia praying for refund of the total amount of Rs. 14,29,39,990/- paid by the petitioner to the respondent from 1st April, 2015 till the date of the filing of the said counter claim alongwith a sum of Rs. 52205858/- for interest. 225. The petitioner also filed an application under section 16 of the Arbitration Act before the arbitral tribunal on 21st February, 2017 contending that the arbitral tribunal did not have jurisdiction to determine the claim and prayed for dismissal of the claim of the respondent for want of jurisdiction. In prayer clause (b) of the said application, without prejudice to and in the alternate to prayer (a) for the dismissal for want of jurisdiction, the petitioner prayed for suspension of the arbitral proceedings till the final adjudication of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the said Act. Arbitral tribunal held that section 62 clarifies that the provisions of the Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. 229. The arbitral tribunal rejected the contention of the learned counsel for the petitioner that the CCI had found prima facie case in favour of the petitioner and had directed enquiry under section 26 and that all those questions can be decided by the CCI alone and not by any authority or forum. The arbitral tribunal rightly held that section 61 is expressly clear that it excludes the jurisdiction of the civil Court in entertaining any suit or proceeding in respect of any matter which the Commission or the Appellate Tribunal is empowered by or under the Act to determine. It is held by the tribunal that insofar as the dispute before the arbitral tribunal was concerned, it relates to right and liability of the parties and performance of reciprocal promises under 2015 SLA. 230. It is held that by resolving decision or adjudicating such dispute or differences, the arbitral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emedy. 233. In paragraph 85 of the impugned award, the arbitral tribunal rightly held that the tribunal has jurisdiction to entirely deal with and decide the dispute raised by the respondent against the petitioner. In paragraph 86 of the impugned award, the arbitral tribunal rightly held that apart from the dispute by the respondent against the petitioner under 2015 SLA, the petitioner had also raised some disputes against the respondent arising out or in connection with 2015 SLA by challenging the termination thereof Agreement by the respondent by letter dated 14th November, 2015 and has claimed the damages in the counter claim to the tune of Rs. 2,500 crores, subsequently reduced to Rs. 56.90 crores. 234. The petitioner has also claimed refund of trait value of Rs. 19.59 crores paid by the petitioner to the respondent under the said 2015 SLA. Those counter claims also could not have been decided by the CCI and were rightly filed before the arbitral tribunal. The arbitral tribunal interpreted the said SLA and has rightly held that the said SLA contained the arbitration clause of wide amplitude which required the aggrieved party to refer its dispute to the arbitral tribunal. 235 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r not Competition Act, 2002 applies to 2015 SLA can and is to be decided only by the CCI. It is rightly held that once the CCI is empowered to determine the said question, section 61 of the Competition Act bars the arbitral tribunal from considering the said question and also the supplemental or consequential question is embedded in issue nos. 3(A) to 3(F) which also the CCI is empowered to determine. After adverting to section 61 of the Competition Act and after noticing the admitted facts that the CCI is still investigating the matter and no orders have yet been passed by the CCI under Section 26 or under Section 27, the arbitral tribunal rightly held that that issue will be decided by the CCI. Accordingly, insofar as the issue nos. 3A to 3F are concerned, in view of the findings rendered by the arbitral tribunal on issue no.2, the arbitral tribunal rightly did not express any opinion on those issues. 238. I shall first deal with the rival submissions made by the learned senior counsel for the parties on issue nos. 1 to 3 together. Mr. Darius Khambata, learned senior counsel for the petitioner could not dispute that the CCI does not have jurisdiction to allow any monetary claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established under sub- section(1) of section 7. Section (3) deals with 'anti-competitive agreements.' The said provision prohibits any enterprise or association of enterprises or person or association of persons from entering into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. 242. Section 3(2) provides that any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void. Section 7 provides for establishment of commission. Section 19 of the Act empowers the commission to enquire into any alleged contravention of the provisions of section 3(1) or section 4(1) either on its own motion or on receipt of any information or a reference made to it by the Central Government or a State Government or a statutory authority. It further provides for various other powers of the commission while dealing with the issues whether there was any alleged contravention of the provisions of the section 3(1) or 4(1) of the Act. 243. Section 26 of the Competition Act provides that on receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the period 2007-08 onwards. There are proceedings filed before the different High Courts including MRTPC wherein the State of Andhra Pradesh filed an additional affidavit bringing on record (i) Settlement and Release of Claims Agreement and (ii) Supplementary and Amendment Agreement executed by and between the parties on 25th January, 2007. The second Amendment Agreement was executed between the parties under the trait value for BG-II further reducing the amount to Rs. 225/- per packet for a packet costing upto Rs. 950/- per packet. 247. It is not in dispute that the respondent had issued a notice of termination of SLA 2004 by notice dated 19th November, 2009 and demanded the outstanding payment of Rs. 89.52 crores approximately under the said 2004 SLA. A dispute had arisen between the parties also under the said agreement. However, in view of the Amendment Agreement having been executed, nothing survived in the reference made before the Competition Appellate Tribunal. 248. The petitioner did not dispute before this Court that the said 2015 SLA was executed after detailed negotiations held by the petitioner with full independent legal advice received by the petitioner of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned senior counsel for the petitioner did not dispute that one year prior to the claim period, the Bt. cotton seeds business of the petitioner was 69.73% i.e. approximately 70% of their total business. The total revenue of the petitioner for the Financial Year 2015-16 was Rs. 1054 crores as is apparent from the affidavit in reply dated 20th February,2019 filed by the petitioner in the petition filed by the respondent under Section 9 of the Arbitration Act in this Court. The net profit of the petitioner for the Financial Year 2015-16 even according to the petitioner was Rs. 1054 crores as reflected in the said affidavit. 253. Learned senior counsel also did not dispute that under the said 2015 SLA, on the sale of seed packets worth upto Rs. 930/-, the petitioner was liable to pay to the respondent approximately Rs. 163.28/- per packet exclusive of taxes. Learned senior counsel could not dispute that the petitioner and its associate companies have already collected the amount claimed by the respondent from the farmers on the sale of those seeds. The averments made by the petitioner in paragraph 5.4 of the affidavit in reply dated 20th February, 2019 filed by the petitioner in Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement, (2) whether the arbitral tribunal is properly constituted or not and (3) whether the matters submitted to arbitration are submitted within the scope of the arbitration agreement or not. The only question thus remains for consideration of this Court is whether the monetary claims made by the respondent before the arbitral tribunal were arbitrable or not. 256. The submission of the learned senior counsel for the petitioner before this Court is that though CCI has no jurisdiction to award any monetary claim under the provisions of the Competition Act, the monetary claims made by the respondent before the arbitral tribunal however, could not have been granted in violation of the provisions of the Competition Act. In my view, since CCI did not have jurisdiction to grant any monetary claim for the sale of seeds under the 2015 SLA in favour of the respondent, the claims made by the respondent before the arbitral tribunal being an action in personam, exclusive jurisdiction to entertain such claim in the nature of an action in personam would vest only with the Civil Court or with the arbitral tribunal, as the case may be. There being an existence of arbitration agreement between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 9 of the Arbitration Act in support of the submission that the Court has ample power to suspend the arbitral proceedings under the said provision is concerned, under the said provision, the arbitral tribunal empowers to grant interim measures on various grounds and circumstances specifically set out therein. None of those grounds and circumstances set out therein would include the power to suspend the arbitral proceedings by the Court under Section 9. There is thus no merit in this submission of the learned senior counsel for the petitioner. 261. Reliance placed on Section 17 of the Arbitration Act in support of the submission that the arbitral tribunal is empowered to suspend the arbitral proceedings is misplaced. Under Section 17, the arbitral tribunal is empowered to grant interim measures on the grounds and the circumstances set out in the said provision. In my view, Section 17 does not empower the arbitral tribunal to suspend the arbitral proceedings. 262. In my view, there is no merit in the submission of the learned senior counsel for the petitioner that the arbitral tribunal after dismissal of the monetary claim made by the respondent in view of pendency of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to in sub-section (1) is caused to numerous persons having the same interest, one or more of such persons may, with the permission of the Appellate Tribunal, make an application under that sub-section for and on behalf of, or for the benefit of, the persons so interested, and thereupon, the provisions of rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to the application before the Appellate Tribunal and the order of the Appellate Tribunal thereon. Explanation. - For the removal of doubts, it is hereby declared that - (a) an application may be made for compensation before the Appellate Tribunal only after either the Commission or the Appellate Tribunal on appeal under clause (a) of sub-section (1) of section 53A of the Act, has determined in a proceeding before it that violation of the provisions of the Act has taken place, or if provisions of section 42A or sub-section (2) of section 53Q of the Act are attracted. (b) Enquiry to be conducted under sub-section (3) shall be for the purpose of determining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eervai, learned senior counsel for the petitioner in Commercial Arbitration Petition No.892 of 2019 and Mr. Rohan Kadam, learned counsel for the petitioner in Commercial Arbitration Petition No.738 of 2019 could not demonstrate before this Court that even if the amount awarded by the arbitral tribunal if paid by the petitioner to the respondent and if the petitioner ultimately succeeds in the proceedings before the CCI, the petitioner would not be able to seek any compensation by filing an application under Sections 53N(3) and 53N(4) of the Competition Act read with explanation thereto. 267. In my view, there is no substance in the submission made by the learned senior counsel for the petitioner that the arbitral tribunal ought to have awaited for the outcome of the pending proceedings before the CCI and could not have made an arbitral award though admittedly there was no dispute on the merits of the claim. There is no substance in the submission that the issues in the arbitral proceedings being related to the issues pending before the CCI and thus even if the part of the claims were arbitrable and other part was not arbitrable, the entire proceedings before the arbitral tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in a dominant position or had committed the abuse of dominant position contemplated under Section 27 of the Competition Act. The arbitral tribunal in the impugned award has recorded a finding that the arbitral tribunal has jurisdiction in the matter, Subject-Agreement is neither void nor voidable under the Contract Act, 1872 and on the facts of the case, the respondent had not avoided the agreement. It is held that the petitioner was not entitled to withhold or refuse payment of the trait value payable under the Subject-Agreement and was liable to make such payment. The respondent was entitled to demand the trait value from the petitioner. 271. While dealing with issue nos.3(a) to 3(f) which deal with the issue of alleged violation of various provisions of the Competition Act alleged to have been committed by the respondent which were framed on the basis of the pleadings filed by the petitioner, the arbiral tribunal has clarified that the question whether or not the Competition Act applies to the 2015 SLA is to be decided by the CCI. The arbitral tribunal has thus rightly held that once the CCI empowers to decide that question, Section 61 of the Competition Act bars the arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent for seeking enforcement thereof while seeking monetary claim is misplaced in the facts of this case. The issue as to whether any part of 2015 SLA is void or not or is contrary to any of the provisions of the Competition Act or not, is the issue pending before the CCI. The petitioner will have a remedy under Section 53N of the Competition Act, if the petitioner succeeds in those proceedings before the CCI to seek adequate compensation based on such findings if rendered by the CCI or the Appellate Tribunal, as the case may be. 275. In so far as the submission of Mr. Khambata, learned senior counsel for the petitioner that the arbitral tribunal has decided the issue nos.2 and 3 ignoring the statement of defence filed by the petitioner and has considered only the averments made in the statement of claim is concerned, in my view the arbitral tribunal has not only considered the statement of claim but has also dealt with the objection raised by the petitioner in the statement of defence as well as the application filed under Section 16 of the Arbitration Act in the impugned award as well as in the order passed under Section 16. However, in paragraphs 51 and 54 of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though it decided wrong it would not be doing something which it had no jurisdiction to do. It had jurisdiction over the subject matter, it had the jurisdiction over the party and therefore merely because it made an error in deciding a vital issue in the suit, it cannot be said that it had acted beyond its jurisdiction. It is held that the Courts have jurisdiction to decide right or to decide wrong even tough they decide wrong, the decree is rendered by them cannot be treated as nullities. 279. Supreme Court has adverted to the judgment of privy council in case of Maqbul Ahmad v/s. Onkar Pratap Narain Singh, AIR 1935 PC 85 which did not say that where the Court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. In my view, principles of law laid down by the Supreme Court in the case of Indian Farmers Fertiziler Cooperative Limited (supra) applies to the facts of this case. The respondent has clearly satisfied all the ingredients of kompetenz principles in this case. I am respectfully bound by the said judgment. Merely because th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 282. A full Bench of Andhra Pradesh High Court in case of Sangnbhotla Venkatramaiah (supra) has held that where the subject matter of the suit falls outside the exclusive jurisdiction of the special tribunal or where the reliefs sought in the suit is one which the special tribunal is incapable of granting, the jurisdiction of the Civil Court is not ousted merely because the question which has to be incidentally but necessarily decided is a question within the competence of the special tribunal. The forum has to be determined by the plaint. If the allegations in the plaint and the reliefs sought did not bring the action within the jurisdiction of the special tribunal, there is no reason to exclude the Civil Court from taking the action merely because the defence putforth involves the adjudication of matters within the competence of special tribunal. 283. In my view, merely because the petitioner had raised an issue that the 2015 SLA was void or anti-competitive or that the respondent no.1 had abused the dominant position and those issues could be decided only by the CCI, it would not preclude the arbitral tribunal from deciding the monetary claims made before it which were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Court to pass a decree for recovery in case at hand before the Delhi High Court. Delhi High Court rejected the contention of the respondent that there was bar under the provisions of SEBI Act against the Civil Court from dealing with a monetary claim by enforcing a contractual obligation. The principles laid down by the Delhi High Court in case of M/s. Shoes East Limited (supra) apply to the facts of this case. I am in respectful agreement with the views expressed by the Delhi High Court in the said judgment. 286. In this case also since the respondent had filed the claim before the arbitral tribunal for recovery of monetary claim by seeking enforcement of contractual obligation under the said 2015 SLA, the jurisdiction of the arbitral tribunal was not ousted to decide such monetary claim under Section 61 of the Competition Act. This Court in case of Asha Kataria (supra) after considering the provisions of Section 20A and 15Y of SEBI Act and Section 22E of the Securities Contracts (Regulation) Act held that none of those provisions would enable either of the authorities such as adjudicating officers, securities Appellate Tribunal and the Board to resolve the dispute regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted parallelly and does not oust the jurisdiction of each other in respect of the issues which can be exclusively decided by each of this forum. 289. In that context, in my view, Mr. Chagla, learned senior counsel for the respondent is right in his submission that the Competition Act is not a self-contained code. Supreme Court in case of Saurabh Prakash (supra) dealt with the issue of jurisdiction of Monopolies and Restrictive Trade Practices Commission and held that the power of MRTP Commission to award compensation is restricted to a case where a loss or damage had been caused as a result of the monopolistic or unfair trade practices. It had no jurisdiction where damages was claimed for mere breach of contract. It is held that the power of the commission is not in addition to the power of the Civil Court. The principles laid down by the Supreme Court in case of Saurabh Prakash (supra) applies to the facts of this case. The monetary claim filed by the respondent before the arbitral tribunal alleging the breach of the contract committed by the petitioner by refusing to pay the contractual dues under the said 2015 SLA could not have been gone into by the CCI. I am respectfull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce/claims of the persons affected by enforcement of the provisions of the Act, preferably, including an appellate forum within the frame work of the Act. In another words, the Act in itself should be a panacea to all facets arising from the implementation of the Act itself. The principles of law laid down by the Supreme Court in case of Girnar Traders (supra) applies to the facts of this case. 293. Learned senior counsel for the petitioner could not point out any provision under the Competition Act providing for a remedy to recover monetary claim arising out of a contractual obligation under an agreement. Thus, the provisions of the Competition Act cannot be considered as a self-contained code in so far as the remedy of recovery of monetary claim for enforcement of contractual obligation is concerned. In my view, the arbitral tribunal was thus not bound to suspend the proceedings or could not have rejected the monetary claim merely on the ground that the complaint filed by the Central Government as well as the information filed by the petitioner were pending before the CCI. 294. In my view Mr. Chagla, learned senior counsel for the respondent is right in his submission that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th February, 2016 passed by the Delhi High Court and is even otherwise an interim order and did not determine the rights of the parties and would not operate as res-judicata or issue estopple in the matter. Supreme Court in case of Amrish Tewari (supra) has held that interim orders were passed before any order or statements had been recorded and were passed only on the basis of the contentions of the parties. It is held that the interim orders even though they may have been confirmed by the higher Courts, never bind and do not prevent passing of contrary order at the stage of final hearing. In my view, the principles laid down by the Supreme Court in the said case clearly applies to the facts of this case. The reliance placed by the learned senior counsel for the petitioner on various interim orders thus passed by the CCI were neither binding on the arbitral tribunal nor are binding on this court as the same were subject to the final orders as may be passed by the CCI. 298. The Supreme Court in case of State of Assam v/s. Barak Upatyaka D.U. Karmachari Sanstha, (supra) has held that an interim order which does not finally and conclusively decide an issue cannot be a precedent. Any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in case of Harsha Constructions (supra) has held that if a non-arbitrable dispute is referred to an arbitrator and even if an issue is framed by the arbitrator in relation to such a dispute, there cannot be a presumption or a conclusion to the effect that the parties had agreed to refer the issue to the arbitrator. In that matter, the respondent had raised an objection relating to the arbitrability of the issue before the arbitrator and yet the arbitrator has rendered his decision on the said "excepted" dispute. It is held by the Supreme Court that the arbitrator could not have decided the said "excepted" dispute. It was not open to the arbitrator to decide the issues which were not arbitrable and the award, so far as it relates to disputes relating to the arbitrability is bad in law and is accordingly quashed. 302. A perusal of the impugned award clearly indicates that the arbitral tribunal has not rendered any finding on the non-arbitrable issue i.e. issue nos. 3(A) to 3(F). It is not the case of the arbitral tribunal deciding those issues but is clear case of the arbitral tribunal not deciding those issues in view of those issues being capable of being adjudicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right of the party to claim compensation in case of breach of the contract under section 70 of the Contract Act applies to the fats of this case. 304. In my view, there is no substance in the submission of the learned senior counsel for the petitioner that the parties to the arbitral proceedings also could have sought an indefinite extension of time under section 29A of the Arbitration Act during the pendency of the complaint filed by the Central Government and the information filed by the petitioner before the CCI. The legislative intent for inserting section 29A clearly mandates that the arbitral proceedings have to be disposed of expeditiously and if for any reason set out in the said provision the proceedings are not disposed of within the time prescribed, the application for extension of time can be made under section 29A(4). The court in that event is empowered to grant further extension of time to complete the arbitral proceedings subject to various safeguards provided therein. 305. The court is also empowered to order the reduction of fees of the arbitrator(s) in the event of the court finding that the proceedings have been delayed for the reasons attributable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs are specifically prescribed under one of those provisions set out aforesaid. 308. In view of the limited judicial intervention prescribed under section 5 of the Arbitration Act, the arbitral tribunal or this Court could not have either terminate or suspend the arbitral proceedings in view of there being no such power available or prescribed under the Arbitration Act for either termination of the arbitral proceedings or for suspension thereof in view of the pendency of the complaint filed by the Central Government or the information filed by the petitioner before the CCI. 309. Insofar as the submission of the learned senior counsel for the petitioner that the arbitral tribunal did not have jurisdiction to decide the claim of the respondent on the ground that the issue of patentability of the technology of the respondent is pending adjudication before the Delhi High Court is concerned, it is not in dispute that the patent of the respondent which is subject matter of the said suit before the Delhi High Court is not revoked in the said proceedings or in any of the proceedings so far and is valid and enforceable. The arbitral tribunal thus even otherwise could not have assumed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned senior counsel for the petitioner also could not dispute before this court that the entire amount claimed by the respondent before the arbitral tribunal for recovery of trait fees which amount was part of the maximum sales price was already recovered by the petitioner from the farmers who were sold the seeds and other items. The finding rendered by the arbitral tribunal on this issue in paragraph 212 of the arbitral award being not perverse and not showing any patent illegality, cannot be interferred with by this court. Similar findings rendered by the arbitral tribunal in paragraphs 204, 210, 211, 213 and 215 also being not perverse and do not disclose any patent illegality, cannot be interfered with by this court. 313. A perusal of the record further indicates that the said suit filed by the respondent against the petitioner before Delhi High Court alleging infringement of the patents right of the respondent was initially dismissed by the Delhi High Court. The said judgment of the Delhi High Court was set aside by the Division Bench of the Delhi High Court. Supreme Court by a judgment has set aside the order passed by the Division Bench of the Delhi High Court and restored ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l tribunal. 315. In my view, the judgment of Delhi High Court in case of Jindal Steel & Power Ltd. (supra) would not assist the case of the petitioner on the ground that the MOU which was challenged before the Delhi High Court in the writ petition was executed before the Competition Act came into force. The said party had also filed a parallel proceedings before the CCI after the said Competition Act came into force for the same relief. Delhi High Court accordingly adjourned the writ proceedings awaiting the decision of the CCI on the basis that the writ petitioner could achieve full relief before the CCI. It is clear that however in this case, the proceedings filed before the arbitral tribunal and before the CCI have been filed by two opposite parties. The CCI has no power to grant monetary relief in favour of the respondent admittedly. In my view, there is no power granted to the arbitral tribunal to adjourn the arbitral proceedings sine-die. The powers of Writ Court cannot be compared with the powers of the arbitral tribunal. The judgment of Delhi High Court in case of Jindal Steel & Power Ltd. (supra) thus is clearly distinguishable in the facts of this case and would not assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f which certain disputes may not be submitted to arbitration." It is held that complaints filed under Consumer Protection Act can also be proceeded with despite there being an arbitration agreement between the parties. 319. The judgment of this Court in case of Dinesh Jaya Poojary (supra) also would not assist the case of the petitioner on the ground that the CCI before whom a complaint filed by the Central Government and the information filed by the petitioner is pending, is not empowered to adjudicate upon the contractual claims made by the respondent for unpaid trait value. In my view, the disputes raised by the respondent in the statement of claim before the arbitral tribunal were exclusively within the four corners of the Arbitration Act and did not seek any adjudication of the issues which are subject matter of the said complaint and the information filed by the Central Government and the petitioner respectively before the CCI. 320. The judgment of this Court in case of Kingfisher Airlines Ltd. (supra) is also distinguishable on the ground that the issue before this Court in the said judgment was in respect of a claim for unpaid wages and whether such unclaimed wages disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a contract is an arbitrable dispute by itself on merits and is not a jurisdictional fact. The question as to whether a contract is void or not is not a jurisdictional fact. 324. The judgment of Supreme Court in case of Competition Commissioner of India (supra) relied upon by the learned senior counsel for the petitioner is clearly distinguishable in the facts of this case on the ground that in that judgment an order under Section 26(1) of the Competition Act was held akin to a departmental function and did not affect the rights and liabilities of parties. The interim order passed by the CCI under Section 33 of the Competition Act cannot be converted into an order of a final nature by this Court. 325. Judgment of Supreme Court in case of Gangai Vinayagar Temple and Ors. (supra) is distinguishable on the ground that the provisions considered by the Supreme Court in the said judgment under Order XLI Rule 1 of the Code of Civil Procedure does not apply to arbitration proceedings even though the issues were framed by the arbitral tribunal. Arbitral tribunal has no jurisdiction to decide every such issue itself if such issues were not within the jurisdiction of arbitral tribunal or suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial Leave Petition filed against the said judgment of Division Bench of this Court has been already dismissed. Judgment of Delhi High Court in case of Telefonaktiebola get LM Ericsson (supra) is also distinguishable on the ground that in this case the respondent had applied for recovery of monetary claim and such dispute did not involve enforcement of right or obligation under the Patents Act. Delhi High Court in the said judgment has clearly held that the Competition Act does not oust the jurisdiction of other forum/body on other matters relegated to other forum/body even if the issues are related. The view taken by the Delhi High Court about the jurisdiction of CCI and the jurisdiction of other forum/body to deal with the issue of enforcement of a right or other obligation under the Patents Act would support the case of the respondent and not the petitioner. 330. In my view, Mr. Chagla, learned senior counsel for the respondent is right in his submission that the provisions of the Arbitration and Conciliation Act, 1996 and the Competition Act must be read in their respective context and both the schemes must be given effect to accordingly. A Division Bench of Delhi High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of Supreme Court in case of Prabhakaran and Ors. (supra) relied upon by the learned senior counsel for the petitioner is distinguishable on the ground that the facts before the Supreme Court in the said judgment were totally different. No such plea of lack of jural relationship between the parties was raised by the petitioner before the arbitral tribunal nor was demonstrated by the petitioner either before the arbitral tribunal even before this Court. The learned senior counsel could not dispute the existence of the arbitration agreement, existence of the said 2015 SLA between the parties and the fact that under the same agreement substantial amount of the payment of trait fees was already paid by the petitioner to the respondent. The petitioner itself had made counter claim under the same agreement. In my view, there is thus no substance in the submission of the learned senior counsel for the petitioner that there was no jural relationship between the petitioner and the respondent. 334. The judgment of Supreme Court in case of State of Goa v/s. Praveen Enterprises (supra) relied upon by the learned senior counsel for the petitioner would not assist the case of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document comprising of arbitral agreement would not be enforceable in law. In my view, this judgment of the Supreme Court would not apply to the facts of this case at all. The arbitral tribunal has not decided any issue which were exclusively within the domain of the CCI. 338. In so far as the reliance placed by the learned senior counsel on Section 3(2) and Section 27 of the Competition Act is concerned, there is no dispute that in appropriate cases, the CCI has power to modify the agreement and that under Section 3(2) of the Competition Act, an agreement would be void falling under the said provisions unless saved by modification. It is however not in dispute that so far the said 2015 SLA has not been declared as void under Section 3(2) or under any other provisions of the said Competition Act nor has been modified till date. 339. Learned senior counsel for the petitioner could not distinguish the principles of law laid down by the Court of Appeal (Civil Division) in case of David John Passmore (supra). The principles laid down by the Court of Appeal in the said judgment would assist the case of the respondent. Learned senior counsel also could not distinguish the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent would squarely apply to the facts of this case. The petitioner had availed of various benefits under the said 2015 SLA and had recovered the amount from its customers i.e. farmers for supply of seeds. The arbitral tribunal rightly rejected the counter claims made by the petitioner for refund of various amounts. Mr. Khambata, learned senior counsel for the petitioner could not distinguish the said judgment in case of Hansraj Gupta & Co. (supra). 343. In so far as the judgment of this Court in case of Maharashtra State Electricity Board (supra) relied upon by the learned senior counsel for the petitioner in support of the submission that the Court has ample power under Section 9 of the Arbitration Act to suspend the arbitral proceedings is concerned, the said judgment would not assist the case of the petitioner. The order passed by the arbitral tribunal under Section 17 of the Arbitration Act was not complied with by the respondent in the arbitral proceedings before the arbitral tribunal. In paragraph 50 of the said judgment, it is held by this Court that the arbitral tribunal does not have the power to suspend the arbitral proceedings before it as a step in add of an execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shree Tirupathi Udyog (supra). 346. In so far as the issue raised by the learned senior counsel for the petitioner that the claims made by the respondent before the arbitral tribunal was based on the patent rights of the respondent or that such facts are allegedly admitted by the respondent in the pleading filed before the arbitral tribunal is concerned, there is no merit in this submission of the learned senior counsel. A perusal of the pleadings filed by the respondent before the arbitral tribunal clearly indicates that the respondent had not filed a monetary claim for enforcement of any patent rights. The respondent has already filed a separate proceedings before Delhi High Court which are pending. Learned senior counsel urged across the bar at the stage of rejoinder that the petitioner did not apply for declaration of 2015 SLA as void before the CCI but had applied for modification of the said agreement. In my view, the submission made by the learned senior counsel on behalf of the petitioner across the bar as well as before the arbitral tribunal and his client before the CCI are inconsistent, contradictory and are self- destructive. 347. In my view, the judgment of Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am respectfully bound by the said judgments. In my view, no case is thus made out by the petitioner for intervention with the impugned award in Commercial Arbitration Petition No. 737 of 2019 and thus the said petition deserves to be dismissed. REASONS AND CONCLUSIONS IN COMMERCIAL ARBITRATION PETITION NO. 738 OF 2019 :- 350. The facts and the legal submissions made by the parties in this0 case are identical to the facts to the facts and submission in Commercial Arbitration Petition No. 737 of 2019. Mr. Rohan Kadam, learned counsel for the petitioner adopted all the submissions made by Mr. Khambata, learned senior counsel for the petitioner in Commercial Arbitration Petition No. 737 of 2019 such submissions are already dealt with by this Court at length in the earlier paragraphs of this judgment. The reasons recorded by this Court while dismissing the Commercial Arbitration Petition No. 737 of 2019 would apply to the Commercial Arbitration Petition No. 738 of 2019. 351. Mr. Dwarkadas, learned senior counsel for the respondent adopted the submissions made by Mr. Chagla, learned senior counsel for the respondent in Commercial Arbitration Petition No. 737 o 2019 and made additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The issue as to whether the said 2015 SLA was void under Sections 3 and 4 of the Competition Act or not or that whether the said agreement contravened the provisions of the Competition Act or not is pending before the CCI. In this case, the arbitral award is rendered by the sole arbitrator. 355. The claim made by the respondent was for an amount of Rs. 13,20,79,537/- towards trait value for sales between 1st April, 2015 and 31st October, 2015 and the sum of Rs. 2,89,688/- for the period between 1st Novembers, 2015 and 14th November, 2015 under the said 2015 SLA. The arbitral tribunal has awarded a sum of Rs. 13,23,39,225/- in favour of the respondent with interest @ 18% p.a. from the date of termination of contract till date of payment. The arbitral tribunal had framed about 18 issues for determination. In that matter also the petitioner had filed an application under Section 16 of the Arbitration Act and had also filed counter claim before the learned arbitrator. 356. The learned arbitrator by an order dated 11th October, 2017 dismissed the application filed by the petitioner under Section 16 by recording detail reasons, however kept all the objections available to the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anated from a commercial contract between the two parties and concerning rights in personam and not in rem and thus arbitrable. Section 61 does not prohibit an arbitral tribunal from determining contractual disputes under an arbitration agreement. In my view, learned arbitrator rightly held that in any event the disputes fell for determination by the arbitral tribunal and the CCI were distinct and did not overlap. The respondent had made its claims based on the contract in the arbitral proceedings whereas the petitioner has alleged abuse of dominance against the respondent before the CCI. 360. In the operative part of the award, the learned arbitrator clarified that in the event the CCI has views disparate or irreconcilable to that of the arbitral tribunal, it will create a legal nodus which the appropriate forum will have to unravel. In my view, this clarification and safeguard provided by the learned arbitrator would sufficiently protect the interest of the petitioner. As already held by this Court in the earlier paragraphs of this judgment that petitioner would have a right to claim compensation under Section 53N of the Competition Act, in the event of the petitioner succeeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and has not decided any issues which would fall exclusively within the domain of the CCI. 363. In so far as the judgment of Supreme Court in case of Competition Commission of India v/s. Bharti Airtel Ltd. (supra) relied upon by the learned senior counsel for the petitioner is concerned, the said judgment is clearly distinguishable in the facts of this case. The petitioner in this case had already raised an issue of arbitrability even in the correspondence at the stage of the respondent invoking arbitration agreement. It is not the case of the petitioner that the learned arbitrator has decided the issues which would exclusively fall within the domain of the CCI in the impugned award. 364. In my view, Mr. Samdani, learned senior counsel for the respondent is right in his submission that the monetary claim made by the respondent does not fall within the jurisdiction of the CCI under Section 61 of the Competition Act. The learned arbitrator has rightly exercised its jurisdiction to entertain the monetary claims made by the respondent and has not exceeded his jurisdiction. The learned arbitrator has only directed the petitioner to pay the contractual dues of the respondent arising o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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