9911796707
TMI Blog2025 (3) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... ation has been filed for condonation of delay of eighty nine (89) days. 2. Keeping in view the averments in the application, the same is allowed. Accordingly, the application stands disposed of. LPA 505/2024 & CM APPL. 35527/2024, CM APPL. 35529/2024 3. Present appeal has been filed challenging the order dated 16th February, 2024 passed by the learned Single Judge in W.P. (C) 15874/2023 whereby the learned Single Judge disposed of the petition and referred the matter to Delhi International Arbitration Centre (DIAC) for initiating arbitration proceedings under Section 18(3) of the Micro Small & Medium Enterprises Development (MSMED) Act, 2006 and the Arbitration & Conciliation Act, 1996 as there are disputed questions of fact. 4. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 under Section 18(3) is akin to Section 11(6) of the Arbitration and Conciliation Act, 1996. 9. He states that the MSEFC, Delhi failed to act on the jurisdiction entrusted upon it under the special statute and further ignored to take note of the fact that there was no privity of contract between the Appellant and Respondent No. 2. He further states that MSEFC failed to issue the notice to Pratibha Industries Ltd. who was the main contractor with whom the Respondent No. 2 had entered into the contract. He also states that Respondent No. 2 was not registered as an MSME on the date of entering into contract and therefore the matter is not amenable to be referred to arbitration under the provisions of MSMED Act, 2006. 10. He also states tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of an arbitration agreement. 5.3 At this stage, it is required to be noted that as per the settled position of law, pre-referral jurisdiction of the court under Section 11(6) of the Arbitration Act is very narrow and inheres two inquiries. The primary inquiry is about the existence and the validity of an arbitration agreement, which also includes an inquiry as to the parties to the agreement and the applicant's privity to the said agreement. The said matter requires a thorough examination by the referral court. [paragraph 25 of the decision in the case of NTPC Ltd. (supra)]. The Secondary inquiry that may arise at the reference stage itself is with respect to the non- arbitrability of the dispute. Both are different and distinct. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and held that the intention behind the insertion of Section 11(6A) in the Act was to confine the Court, acting under Section 11, to examine and ascertain about the existence of an arbitration agreement. We are of the opinion that therefore, if the dispute/issue with respect to the existence and validity of an arbitration agreement is not conclusively and finally decided by the referral court while exercising the pre-referral jurisdiction under Section 11(6) and it is left to the arbitral tribunal, it will be contrary to Section 11(6A) of the Arbitration Act. It is the duty of the referral court to decide the said issue first conclusively to protect the parties from being forced to arbitrate when there does not exist any arbitration agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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