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ir J 31&36 HIGH COURT OF DELHI ARB.P. 3LOI?OLL
M/S SHREE SAINATH WIRES PW LTD ..... PCtitiONCT
Through: Mr, Sonal Jain and Mr. Rajiv Mohan Barahma, Advocates
VCTSUS
M/S P.E.C LIMITED ..,.. Respondent
Through: Mr. Praveen Jain, Advocate O.M.P. 766|2OLL
L- M/S SHREE SAINATH WIRES PVT LTD ..... Petitioner
Through: Mr, Sonal Jain and Mr. Rajiv Mohan Barahma, Advocates
M/S SHREE SAINATH WIRES PW LTD ..... PCtitiONCT
Through: Mr, Sonal Jain and Mr. Rajiv Mohan Barahma, Advocates
VCTSUS
M/S P.E.C LIMITED ..,.. Respondent
Through: Mr. Praveen Jain, Advocate O.M.P. 766|2OLL
L- M/S SHREE SAINATH WIRES PVT LTD ..... Petitioner
Through: Mr, Sonal Jain and Mr. Rajiv Mohan Barahma, Advocates
VERSUS
M/S P.EC LIMITED LTD ..... Respondent
Through: Mr. Praveen Jain, Advocate
Through: Mr. Praveen Jain, Advocate
CORAM:
HON',BLE MR. JUSTICE VIPIN SANGHI
ORDER o/o 14.LO.20L1 ,\' Arb. P. No.310/2011 has been preferred under section 11 of the
Arbitration and Conciliation Act to seek the appointment of a sole arbitrator. O.M.P. No.76612011 has been preferred under section 9 of the Arbitration and Conciliation Act to seek a restraint against the respondent and the lndian Council of Arbitration from proceeding with the respondents claim petition dated 07.09,2011.
2011:DHC:19197 t- ? j, The case of the petitioner is that there is no arbitration agreement between the parties. According to the petitioner, the arbitration clause contained in clause 20 of the agreement between the parties dated 03.04.2008 is a forged and fabricated document.
The respondent has already invoked the said arbitration agreement which provides that disputes between the parties shall be settled amicably, failing which the matter will be referred to Indian Council of
Arbitration, New Delhi. ln my view, both these petitions are misconceived. In case there is no written arbitration agreement between the parties, as contended by the petitioner, the petition under section 11 is not maintainable.
The submission of learned counsel for the petitioner is that the petitioner is now agreeable to the appointment of a sole arbitrator by the Court. That, by itself, would not vest jurisdiction in this Court to appoint an arbitrator. The arbitration agreement in writing has to pre- exist before petition under section 11 is preferred, and the petition itself cannot be treated as an agreement between the parties. The respondent has not consented to the offer made by the petitioner.
According to the respondent, the arbitration agreement is contained in clause 20 of the aforesaid agreement between the parties dated 03.04.2008. The respondent has already invoked the arbitration agreement, and the tribunal is in the process of being constituted. lf, according to the petitioner the arbitration agreement does not exist, it
\ /9. shall be open to the petitioner to raise all such issues before the arbitral tribunal itself under section 16 of the Act. The petition under section 11 is, therefore, not maintainable.
The petition under section I is also not maintainable as the petitioner is seeking stay of the arbitration proceedings till the disposal of the first petition preferred under section 11 of the Act. Section 5 of the Act bars judicial authority from intervening with the arbitration proceedings except where so provided in Part I of the Act. Section 9 of the Act empowers the Court to direct interim measures in relation to the subject matter of dispute. The petitioner is not seeking any interim measure in relation to the subject matter of the dispute. The petitioner is, in fact, seeking interim measure in relation to the arbitration proceedings, which is different from the subject matter of the dispute.
Consequently, in my view, these petitions are not maintainable.
They are, accordingly, dismissed.
Dasti. ocroBER L4, 20r.1 ST L
ORDER o/o 14.LO.20L1 ,\' Arb. P. No.310/2011 has been preferred under section 11 of the
Arbitration and Conciliation Act to seek the appointment of a sole arbitrator. O.M.P. No.76612011 has been preferred under section 9 of the Arbitration and Conciliation Act to seek a restraint against the respondent and the lndian Council of Arbitration from proceeding with the respondents claim petition dated 07.09,2011.
2011:DHC:19197 t- ? j, The case of the petitioner is that there is no arbitration agreement between the parties. According to the petitioner, the arbitration clause contained in clause 20 of the agreement between the parties dated 03.04.2008 is a forged and fabricated document.
The respondent has already invoked the said arbitration agreement which provides that disputes between the parties shall be settled amicably, failing which the matter will be referred to Indian Council of
Arbitration, New Delhi. ln my view, both these petitions are misconceived. In case there is no written arbitration agreement between the parties, as contended by the petitioner, the petition under section 11 is not maintainable.
The submission of learned counsel for the petitioner is that the petitioner is now agreeable to the appointment of a sole arbitrator by the Court. That, by itself, would not vest jurisdiction in this Court to appoint an arbitrator. The arbitration agreement in writing has to pre- exist before petition under section 11 is preferred, and the petition itself cannot be treated as an agreement between the parties. The respondent has not consented to the offer made by the petitioner.
According to the respondent, the arbitration agreement is contained in clause 20 of the aforesaid agreement between the parties dated 03.04.2008. The respondent has already invoked the arbitration agreement, and the tribunal is in the process of being constituted. lf, according to the petitioner the arbitration agreement does not exist, it
\ /9. shall be open to the petitioner to raise all such issues before the arbitral tribunal itself under section 16 of the Act. The petition under section 11 is, therefore, not maintainable.
The petition under section I is also not maintainable as the petitioner is seeking stay of the arbitration proceedings till the disposal of the first petition preferred under section 11 of the Act. Section 5 of the Act bars judicial authority from intervening with the arbitration proceedings except where so provided in Part I of the Act. Section 9 of the Act empowers the Court to direct interim measures in relation to the subject matter of dispute. The petitioner is not seeking any interim measure in relation to the subject matter of the dispute. The petitioner is, in fact, seeking interim measure in relation to the arbitration proceedings, which is different from the subject matter of the dispute.
Consequently, in my view, these petitions are not maintainable.
They are, accordingly, dismissed.
Dasti. ocroBER L4, 20r.1 ST L
JUDGMENT