EXHIBITIONS PVT. LTD. v. BUSWORLD INTERNATIONAL CVBA

1. Exemption allowed, subject to all just exceptions.

2. The application stands disposed of. I.A. 39561/2024 and I.A. 39562/2024

3. Exemptions allowed, subject to all just exceptions.

4. The applications stand disposed of. O.M.P. (COMM) 401/2024 & I.A. 39559/2024 (Stay)

5. This is a petition under Section 34 of the Arbitration and Conciliation Act 1996[1] impugning the final award dated 13 May 2024 passed by a learned sole arbitrator.

6. Admittedly, the arbitration is in the nature of an international commercial arbitration.

7. As such, the grounds available to the petitioner to challenge the award do not include the plea of patent illegality.

8. Claims I and II have been awarded in favour of the respondent and against the petitioner.

9. Insofar as Claim II is concerned, though Mr. Tejas Karia, learned Counsel for the petitioner vehemently submits that the findings of the learned arbitrator are directly contrary to the contract between the parties, given the fact that patent illegality as a ground of challenge is not available to the petitioner, and as a challenge to the award qua Claim II essentially deals with interpretation of the contract, keeping in mind the orders passed by the Supreme Court in Toyo Engineering Corporation v IOCL[2] and Manish v. Godawari Marathawada Irrigation Development Corporation[3], I am of the opinion that the petitioner should be directed to deposit the entire “the 1996 Act”, hereinafter

10. Insofar as Claim I is concerned, a more serious issue of jurisdiction arises, as Claim I was predicated on an MoU executed between the parties which did not contain an arbitration clause. A specific ground was taken before the learned arbitrator to the effect that Claim I, being entirely dependent on the MoU, was not arbitrable. The learned arbitrator has even while acknowledging that the MoU did not contain any arbitration clause, nonetheless held Claim I to be arbitrable on the ground that the MoU was merely for executing and implementing the Joint Venture Agreement-II dated 25 October 2011[4].

11. Mr. Vasanth Rajasekaran contends, on the other hand, that, while examining the jurisdiction of the learned arbitrator to arbitrate on Claim I, emails exchanged between the parties have also been taken into consideration.

12. Among the submissions which the petitioner has advanced is the contention that this finding is totally perverse as the JVA-II finds no reference in the MoU at all.

13. Besides, the correctness of the learned arbitrator’s decision that a claim based solely on the MoU could be arbitrated despite there being no arbitration agreement in the MoU would have to be tested on the anvil of the law laid down by the Supreme Court in, inter alia, “JVA-II”, hereinafter Duro Felguera, SA v Gangavaram Port Ltd[5], Chloro Controls India Pvt Ltd v. Severn Trent Water Purification Inc[6] and NBCC (India) Ltd v Zillion Infraprojects Pvt Ltd[7].

14. This is a matter which requires consideration.

15. Inasmuch as it touches on the jurisdiction of the learned arbitrator to have arbitrated on Claim I, I am inclined to exempt the petitioner from making any deposit with respect to Claim I.