Ashwin Maganlal Savani v. Himadri Davda

1] The present Application seek appointment of Sole Arbitrator in terms of a clause contained in the last Will and testament of Mr.Maganlal Savani, and the Applicant, being a surviving heir of Maganlal, allege that since the disputes have arisen with another surviving heir, the Respondent, an Arbitrator nominated in the Will, may be appointed for resolving them. 2] Heard Dr. Abhinav Chandrachud alongwith Juhi Valia for the Applicant and Mr.Mayur Khandeparkar alongwith Ativ Patel for the Respondent. The brief facts which could be gleaned from the Application as well as the Reply filed by the Respondent can be encapsulated in the following Paragraphs. 3] The Applicant and the Respondent are two surviving heirs of late Maganlal, who died on 25.05.2017, leaving behind his last Will and Testament dated 02.07.2016. Under the Will, the Applicant was appointed as the Sole Executor and trustee of the estate. In the capacity as a Sole Executor of the Will, the Applicant applied for grant of Probate to the High Court of Bombay and the Respondent affirmed the Affidavit, agreeing to the grant of Probate, as a consequence of which, the High Court was pleased to grant Probate on 26.03.2018. 4] Pursuant to this, the Applicant and the Respondent entered into three Agreements recording the understanding arrived amongst themselves and these documents are in form of (A) Deed of Family Understanding dated 02.12.2017; (B) Deed of Gift dated 02.12.2017; and (C) Declaration-cum-Possession receipt dated 02.12.2017. The above documents are aimed at settlement/administering part of the estate of their deceased father. It is the contention of the Applicant, that his deceased father held a joint locker alongwith the Respondent, with the Bank of India and prior to the execution of the three documents, the Respondent had executed a letter on printed form of the Bank, instructing the custodian of the said deposit vault of the Bank to cancel her name as joint lessee of the said locker. However, around 2019, the Applicant caught hold of the said letter, and it was revealed to him that after the death of the deceased, the Respoondent had accessed the bank locker and had removed the jewellery, which incidentally form part of the estate of the deceased. It is the specific contention of the Applicant that, by virtue of the residual clause in the Will, the jewellery was bequeathed to him and therefore, opening and accessing the locker without his knowledge was an act of impropriety and misappropriation on part of his sister. The Applicant also allege that he gained the information that certain amounts, which were due to the deceased, in his capacity as beneficiary of the family trust, were also misappropriated by the Respondent. 5] In the wake of aforesaid grievance, the Applicant made an attempt to amicably resolve the issue, by sitting across the table, but to his utter dismay, the Respondent though promised for amicable settlement, after consulting her husband, failed to revert and rather, is alleged to have admitted that she held the property belonging to the deceased to which the Applicant was entitled, but she would have to consider how to repay the same in view of the investment having been made by her, which would require its liquidation for the purpose of effecting the payments. Since no workable solution was forthcoming, the Applicant addressed letter to the Respondent, intimating her that certain amounts which were due to the deceased in his capacity of the beneficiary of the family trust were misappropriated by her and she also intimated about her malafide act of removing jewellery from the locker which was part of the estate of the deceased, to which the Applicant was entitled under the residual clause of the Will. Though the Respondent replied the said letter, but she failed to furnish any details as sought by the Applicant and this constrained the Applicant to invoke arbitration in terms of Clause 19 of the Will by addressing a notice dated 21.12.2020 to the Advocate of the Respondent and intimating that the dispute that has arisen, in terms of the clause in the Will, and it shall be referred to a senior Advocate, named in the Will. 6] Pursuant to the invocation, even the senior Advocate was informed about his nomination as an Arbitrator and he was requested to fix preliminary meeting for giving directions as well as deciding further course of the proceedings. The Respondent replied to the arbitration notice evasively and denied the contents and failed to indicate whether she was contesting the appointment of the senior Advocate, as an Arbitrator, to adjudicate the disputes that have arisen between them. The Senior Advocate held preliminary meeting on 19.01.2021, but the Respondent through email communicated that she will not attend any meeting, and, therefore, the applicant has approached this Court seeking appointment of a Sole Arbitrator, to arbitrate the disputes that have arisen between the two parties, out of the estate of their late father and to determine the Applicant’s entitlement under the Will. 7] The question that arise before me, in the wake of pleadings in the Application and arguments advanced by Dr.Chandrachud in support of the relief sought in the Application is, whether the clause 19 in the ‘Will/the testamentary document’ executed by his deceased father would amount to an Arbitration Agreement, and being an existent and a valid arbitration clause, would it bind the parties. I must also pronounce upon the argument of Dr. Chandrachud, that the Deed of Family Understanding dated 02.12.2017 executed between the parties, incorporate the clause of the Will by making reference to the Arbitrator mandatory and therefore if there is failure of one of the party to express consensus over the appointment of the Arbitrator mentioned in Clause 19, in that case the Applicant is entitled to approach this Court seeking appointment of an Arbitrator. 8] I must, therefore, turn to the relevant clause, which is sought to be projected as, an Arbitration clause. The clause in the ‘Will’ read thus:- “19. If any of my legal heirs have any complaints for the administration of my estate as set out under this Will, in that event, he/she should approach Senior Advocate Mr.Nitin G. Thakker and in his absence Mr.Sandip N. Vimadalal, Advocate and Solicitor for solving or settlement of such grievousness. The decision of Mr.Nitin Thakker or Mr.Sandip N. Vimadalal (as may be the case) will be binding on them and they shall not be entitled to challenge their decision in any manner.” At this juncture, I must also refer to the Deed of Family Understanding executed on 02.12.2017 between the Applicant and the Respondent to give effect to the Will of Maganlal, the deceased, and the said Deed, upon recording the understanding arrived between the parties, record as under: “This Deed of Family Understanding has been affected by mutual consent with no right, authority or power to any party to challenge it on any ground whatsoever. This Agreement shall be completely binding on the parties hereto as also on their respective legal heirs and representatives.” 9] The Invocation notice issued by the Applicant, relying upon Clause 19 of the Will, state that, since it was contemplated in the Will, that any dispute arising between the parties in relation to administration of the estate of the deceased will be referred to senior Advocate and since the Respondent has failed to communicate whether she agreed to the appointment for settling the disputes between the Applicant and the Respondent, the Applicant seek appointment of the Sole Arbitrator through the Court. 10] According to Dr.Chandrachud, there cannot be any straightjacket formula of the manner in which the arbitration clause can be worded and therefore when there is clear intention expressed in the Will by the Testator, that if any of the legal heirs have any complaints for the administration of his estate, they should approach the senior Advocate, named in the clause for solving or settlement of such grievances and when the clause specifically bestow a binding effect to the decision so taken, by specifically recording that the legal heirs shall not be entitled to challenge the decision in any manner, it would definitely indicate existence of an Arbitration Agreement, as finality is accorded to the verdict of the Senior Advocate, so appointed for solving the grievance. The learned counsel would assertively submit that merely because the said senior Advocate is not referred to as an ‘Arbitrator’ or the proceedings are not mentioned as “Arbitration Proceedings”, the clause cannot be said to be short of an ‘Arbitration Clause’ providing the mechanism for resolving the disputes arising out of a particular document and in this case, a Will. The emphasis of Dr.Chandrachud is upon finality to the decision of the senior Advocate who is nominated to solve and settle the grievances, arising between the legal heirs. He would further submit that the Deed of Family Understanding incorporates the arbitration clause, since the parties under the said Deed have accepted the Will, as validly executed by their deceased father and they have confirmed that the said Will is binding upon them and also upon their legal heirs and representatives, necessarily indicating that the clause contained in the Will providing mechanism for resolving the grievances, that would arise thereunder is incorporated therein and necessarily must be given effect to. 11] Dr.Chandrachud would place reliance upon the decision in the case of K.K. Modi vs. K.N. Modi & Ors.1, and by relying upon the same, he would submit that in order to construe whether an Agreement would amount to an Arbitration Agreement within the meaning of Section 2(a) of the Arbitration and Conciliation Act, the existence of the disputes, choosing of the tribunal or forum for judicial determination thereof and binding nature of such decision are the relevant factors. He would submit that though the word ‘Arbitration’ is not used in Clause 19, by implication, the clause is an arbitration clause since there are only two modes of settlement of disputes, in the form of alternative dispute resolution mechanism i.e. Mediation and Arbitration and since the subject clause, confer finality and binding effect to the decision of the person to be appointed to resolve the differences, it can be easily inferred that the clause do not indicate mediation and the second option necessarily must be implied from the said clause, i.e. mode of resolution of disputes which is agreed, is “Arbitration”. In order to support his submission about incorporation by reference in case, where an arbitration clause from another document/contract being incorporated in a subsequent document in that case, it should be considered as a ‘Single Contract Case” he would place reliance upon decision of the Apex Court in the case of Giriraj Garg vs. Coal India Limited & Ors.[2] 12] Per contra, the learned counsel Mr. Khandeparkar for the Respondent would raise a serious objection about Clause 19 in the Will, being construed as an Agreement to be referred to ‘Arbitration’. He would submit that the subject clause in no way contain indication to refer the matter to Arbitration and /or that the parties shall go for arbitration. He would submit that there is no element of adjudication to be undertaken by the two persons i.e. the senior Advocate and a Solicitor nominated in the clause 19. He would submit that there are no words in the clause indicating a reference of the dispute to arbitration and in absence of such word/s in the clause there is no arbitration agreement between the parties. Thus, according to the learned counsel Mr.Khandeparkar, the question of entertaining an Application under Section 11 of the Arbitration and Conciliation Act, does not and cannot arise. Apart from this, the learned counsel would submit that the clause would not create a binding Agreement amongst the parties as there is no document signed by them nor there is any exchange of letters, telex, telegraph or other means of communication, which provide a record of the Arbitration Agreement between themselves, which is a necessary requirement of Section 7(4) of the Arbitration Act. He would further submit that admittedly, there is no exchange of statement of claim/ and/or defence and since clause 19 in the Will fall short of the ingredients of an Arbitration Agreement as contemplated u/s 7 of the Act, the same cannot be construed as an Arbitration Agreement. Mr. Khandeparkar would also submit that the alleged disputes arise in respect of testamentary succession of the estate of the deceased and hence they are not arbitrable under Section 2(3) of the Act and to that extent there are alleged disputes set out in the letter issued on behalf of the applicant about an alleged trust, and even such matters are not arbitrable. Apart from this, the learned counsel would submit the Will in which the purported arbitration clause is contained has received the Probate in which all family members have cooperated and even the Respondent did not contest the Probate and once the Will receive a Probate, there can be no question about existence of any disputes under such a Will. He would also submit that administration of the Estate of the deceased, in any case, is a subject not capable of being resolved and /or adjudicated in arbitration, being a non arbitrable one. He would place reliance upon the decision of the Apex Court in the case of Wapcos Ltd. vs. Salma Dam Joint Venture & Anr. in Civil Appeal arising out of SLP( C) No.7979/2019 and also upon the decision in the case of Vijay Kumar Sharma alias Manju vs. Raghunandan Sharma Alais Baburam & Ors.[3] as regards the contingency of existence of an express or implied agreement between the parties. 13] The Arbitration and Conciliation Act, 1996, aims to provide an alternative mechanism to the Court as a method of dispute resolution, while giving parties the autonomy in the method of resolving the disputes and differences.

This alternative mechanism of Arbitration is the choice of the parties agreeing to subject themselves to the said procedure and, therefore, the nature of the Agreement between the Parties would assume significance. Whether the Agreement between the Parties would amount to an Arbitration Agreement is a first step in ascertaining whether the parties have agreed mutually for referring their disputes to an Arbitrator. 14] Section 7 of the 1996 Act, set out the characteristics of the ‘Arbitration Agreement’ and it contemplate various situations and circumstances, in which an Arbitration Agreement can come into existence. The said provision of the Act have been construed on multiple several occasions in distinct scenario and certain well settled principles are evolved as determining factors, when a question arises as to whether a particular arrangement between the parties would constitute an ‘Arbitration Agreement’. The Hon’ble Apex Court in the case of Jagdish Chander vs. Ramesh Chander & Ors.[4] has summarized the said principles as under:

(i) The intention of the parties to enter into an arbitration agreement shall have to be gathered from the terms of the agreement. The words used should disclose determination and obligation to go to arbitration and not merely contemplate the possibility.

(ii) Even if the words "arbitration " and "Arbitral Tribunal (or arbitrator) are not used with reference to the process of settlement it does not detract from the clause being an arbitration agreement if it has the attributes or elements of an arbitration Agreement. They are: (a) The agreement should be in writing, (b) The parties have agreed to refer any disputes (present or future) between them to the decision of a private tribunal, (c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving due opportunity to the parties to put forth their case before it (d) The parties should have agreed that the decision of the private tribunal in respect of the disputes will be binding on them. (iii) [w]here there is a specific and direct expression of intent to have the disputes settled by arbitration, it is not necessary to set out the attributes of an arbitration agreement to make it an arbitration agreement. But where the clause relating to settlement of disputes, contains words, which specifically excludes any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it will not be an arbitration agreement. For example, where an agreement requires or permits an authority to decide a claim or dispute without hearing, or that if either party is not satisfied with the decision of the Authority, he may file a civil suit seeking relief, [the same] cannot be [held to be] an arbitration agreement.” 15] The existence of an arbitration agreement as contemplated under Section 7 of the Act, is a condition precedent for exercise of the power to appoint an Arbitrator/Arbitral Tribunal under Section 11 of the Act, by the Chief Justice or his designate. In absence of an arbitration agreement or consensus between the Parties, it is not permissible, to appoint an Arbitrator to adjudicate the disputes arising between the parties. The intention of the parties to enter into an arbitration agreement has to be necessarily gathered from the terms of the Agreement. In case, where the terms clearly indicate intention on the part of the parties to the Agreement to refer their disputes to a private individual for adjudication and a willingness to be bound by the decision of the Tribunal on such disputes, it would amount to an arbitration agreement. While there is no specific form in which arbitration agreement is to be clothed in, the words invoked, should disclose a determination and an obligation to go for ‘Arbitration’ and it is not sufficient if it merely contemplate the possibility of going for arbitration. Where there is a mere possibility of the parties agreeing to arbitration in future, in contrast to an obligation to refer the disputes to arbitration, there is no valid and binding arbitration agreement. 16] The use of the words ‘Arbitration’, ‘Arbitral Tribunal’ or ‘Arbitrator’ are not conclusive in determining the intention of the parties to refer the disputes for arbitration. Even if the said words are not used with reference to the process of settlement or with reference to the private individual, which has to adjudicate the disputes, in a clause relating to settlement of disputes, it does not detract from the clause being an arbitration agreement, if it has the attributes of an arbitration agreement being (a) the agreement is in writing, (b) the parties have agreed to refer the disputes (present or future) to the decision of private individual

(c) the tribunal so formed is empowered to adjudicate upon the disputes in an impartial manner; (d) the parties are at consensus that the decision by such a tribunal, shall be final and binding upon them. When there is specific and direct expression of intent, indicated in a clause, to have the disputes settled by arbitration, it is not necessary to set out the attributes of an arbitration agreement to make it so, but where the clause relating to settlement of disputes, contain the words which specifically exclude any of the attributes of an arbitration agreement for instance, it do not express the consent the parties for being referred to an Arbitrator or it do not confer finality to the decision of an arbitrator, in such contingency it cannot be termed as arbitration agreement. Ultimately it is the intention of Parties to an agreement, which is the decisive factor. The use of words “Parties can if they so desire”, refer their disputes to arbitration or “in the event of any dispute the parties may agree to refer the same to arbitration”, which contemplate a further or fresh consent for making reference to the arbitration, are not be construed as arbitration agreements. It is only when in the agreement, the parties unequivocally agree to refer any dispute arising between them, to ‘Arbitration’ with a certainty about binding effect and finality of the verdict, the outcome of the process of arbitration, only in such a case, the agreement would be construed as ‘Arbitration Agreement’. 17] The Apex Court in Mahanagar Telephone Nigam Limited vs. Canara Bank & Ors.5, reiterated the essentials of a valid arbitration agreement and it came to be recorded in the following words:- “A valid arbitration agreement constitutes the heart of an arbitration. An arbitration agreement is the written agreement between the parties, to submit their existing, or future disputes or differences, to arbitration. A valid arbitration agreement is the foundation stone on which the entire edifice of the arbitral process is structured. A binding agreement for disputes to be resolved, through arbitration is a sine-qua-non for referring the parties to arbitration. “9.[1] ……

9.2. The arbitration agreement need not be in any particular form. What is required to be ascertained is the intention of the parties to settle their disputes through arbitration. The essential elements or attributes of an arbitration agreement is the agreement to refer their disputes or differences to arbitration, which is expressly or impliedly spelt out from a Clause in an agreement, separate agreement, or documents/ correspondence exchanged between the parties

9.3. Section 7(4)(b) of the 1996 Act, states that an arbitration agreement can be derived from exchange of letters, telex, telegram or other means of communication, including through electronic means. The 2015 Amendment Act inserted the words "including communication through electronic means" in Section 7(4)(b). If it can prima facie be shown that parties are ad idem, even though the other party may not have signed a formal contract, it cannot absolve him from the liability under the agreement[1].

9.4. Arbitration agreements are to be construed according to the general principles of construction of statutes, statutory instruments, and other contractual documents. The intention of the parties must be inferred from the terms of the contract, conduct of the parties, and correspondence exchanged, to ascertain the existence of a binding contract between the parties. If the documents on record show that the parties were ad idem, and had actually reached an agreement upon all material terms, then it would be construed to be a binding contract.” In a recent decision delivered in the case of Babanrao Rajaram Pund vs. Samarth Builders & Developers, (2022) 9 SCC 691, the Apex Court once again concluded that Section 7 of the Act does not 5 2020 (12) SCC 767 mandate any particular form for the arbitration clause, but it noted the essential elements as being; a) there must be a present or future difference in connection with some contemplated affair b) there must be the intention of the parties to settle such difference by a private tribunal 3] the parties must agree in writing to be bound by the decision of the arbitrator and 4] the parties must be ad idem. In order to constitute an arbitration agreement, the parties must express determination and obligation to refer disputes to arbitration with a clarity and certainty. Whatever, may be the language used, it must, however, disclose a clear intention on part of the Parties to arbitrate. This intention of the parties to settle the disputes by arbitration is paramount even where the dispute resolution clauses are vaguely worded or even when there is ambiguity in choice of the mechanism to be adopted. 18] In the light of aforesaid position of law clearly emerging from the authoritative pronouncements, it has to be considered whether the clause sought to be invoked for appointment of an arbitrator, contained in a ‘Will’, is capable of being construed as an ‘Arbitration Agreement’. On bare reading of Clause 19 which is comprised in Will executed by Maganlal Savani, one important aspect, which is obvious is, the absence of an agreement between the parties. The subject Will which is a testamentary document, executed in presence of the witnesses, do not have the consent of the Petitioner or the Respondent, who are the legal heirs of the deceased and in fact it is a document which has bestowed certain rights upon them, as his heirs and guide the executor to distribute his diverse assets/ estate/ properties, acquired by him or inherited by him. By the said document, the testator has directed the disposition of his assets in the manner set out therein and admittedly, the Petitioner and the Respondent are not signatories to the same and therefore the requirement about the agreement between the parties to be in writing is not satisfied. 19] The next essential component which must significantly present in order to construe an agreement between the parties as an arbitration agreement, being that the disputes (present or future) exist between the parties, also require to be tested. When Clause 19 is carefully read, it is evident that it is the testator, who has expressed his will/desire that if any of his legal heirs, have any complaint for the administration of his estate, as set out in the Will, in that event, he/she should approach the named senior Advocate and in his absence an Advocate and Solicitor for resolution or settlement of their grievances. The necessary requirement of an agreement between the parties to refer the disputes/difference between them to ‘Arbitration’ is apparently missing in the subject clause, on two counts; firstly there is no consensus between the parties for referring their disputes for arbitration and secondly, what is sought to be referred to the arbitrator, is not any dispute or difference, but it contemplate reference of any complaints/grievances in regard to administration of estate, as set out under the Will, with the third neutral party nominated to resolve or settle, such grievances. 20] The term dispute has a defined connotation and it postulates assertion of claim by one party and its denial by the other. A dispute has to be distinguished from a Complaint and though the two terms may be used often interchangeably to denote a quarrel, or dissenting agreement and definitely indicate lack of consensus or lack of agreement, a complaint is, when someone expresses disagreement, disapproval or disappointment. Considering that the Testator has distributed his assets/estate amongst his heirs, he intended that if any of his legal heirs had any complaint for the administration of his estate, as set out by him, under his Will, they shall approach a named counsel for resolving their grievances. It is the wish of the Testator about the manner in which his heirs would resolve their grievances arising out of the administration of his estate, but it is not the Petitioner and the Respondent i.e. the legal heirs who have expressed the consensus for going to a third party, a named person, to have their disputes resolved through him and, therefore, in this set up, merely because the clause contemplate that the decision of the third person shall be binding on them and shall not be entitled to be challenged in any manner, would not clothe him with attributes of an “Arbitrator”, nor the process contemplated is to be referred to as “Arbitration”. 21] Mr.Chandrachud has asseverated that since the clause contemplate a mode of settlement of their disputes which may arise in future and since there are only two possible modes of settlement i.e. either Mediation or Arbitration and since clause 19 confer finality and binding effect to the outcome of the resolution, it necessarily is an arbitration, is an argument which failed to impress me, to deduce a conclusion, as desired by him, and to grant a relief, of appointment of Sole Arbitrator. Though it is well settled that the arbitration agreement need not be couched in a particular form or format, but the sine qua non of such an agreement is “consensus ad idem”, meaning that the parties have agreed upon the same subject matter of the contract, in the same sense. The Respondent would assertively submit that Clause 19 do not amount to an arbitration clause and ultimately it has to be construed, whether the understanding between the parties was to create an ‘Arbitration Agreement’ or not. It is the intention of the parties which must be given due weightage and in this case particularly Clause 19 would not provide insight into intention of the parties, as they are not signatories to it and therefore the question that arise for consideration is, whether in a document executed by a third party, whether the two parties, who are not signatories, can be bound by the said decision and whether it can be construed, that it was a consensus expressed by them, for being referred to arbitration. The answer definitely has to be in the negative, since the necessary ingredient of an arbitration agreement, being a document signed by the parties, contained in any exchange of letters, telex, telegrams or other means of telecommunication, which provide record for the agreement or even exchange of statement of claim and defence in which existence of the agreement is alleged by the party and not denied by the other. Therefore, meeting of mind of the two parties and an agreement to refer the disputes between them, to an Arbitrator is conspicuously missing. Apart from this, since the Will would not be construed as a contract under the Contract Act, as it is merely a document, to provide for distribution of property owned by the Testator and it prescribe the manner of disposal of such property, in my view, by no stretch of imagination, the clause can be construed as arbitration clause. Merely because one of the ingredient of arbitration agreement, being finality and binding effect, upon the parties undergoing the process find a mention in the said clause, it would not necessarily lead to a conclusion that the process contemplated is “Arbitration”. 22] In the present case, it is merely the desire of the deceased to have his legal heirs being referred to a third person, in case if they have certain grievances in respect of the administration of his estate as set out in the Will and he expected that the decision of the third party shall bind them and shall not be subject to challenge, that is how he perceived the reference to a third party. Merely because of the selection of the persons, by the Testator, in his Will having legal expertise and they being neutral or impartial person, would not confer upon them the status of an “Arbitrator” as contemplated under the Arbitration and Conciliation Act, 1996, nor the fact that they can act judicially and impartially, denotes the intention of the parties to submit themselves to their jurisdiction, and would bring clause 19 within the purview of an ‘Arbitration Agreement’. 23] Mr. Khandeparkar has rightly relied upon the decision of the Apex Court, in the case of Vijay Kumar Sharma alias Manju (supra) where the very specific argument advanced by the Applicant, that the parties to the dispute had never entered into an arbitration agreement and since there was no arbitration agreement in existence as contemplated in Section 7 of the Act, the authority under Section 11 of the Act was not justified in appointing an Arbitrator was upheld. The learned designate held that an arbitration agreement need not be signed by the parties and if a provision for arbitration is incorporated by the Testator under his Will, such provision would be binding on his children/legatees after his death, and it was held that such a provision is an ‘Arbitration Agreement’ under Section 7 for the purpose of deciding any dispute amongst the legatees. The decision of the Calcutta High court in the case of Raj Kumar & Anr. vs. Shiv was relied upon, when it was held that the father has a power to refer to arbitration the dispute relating to a joint family property, provided such reference was filed for the benefit of the family and the award made by the Arbitrator upon such reference will be binding upon all members of the family. While dealing with the submission that there was no valid arbitration agreement, after referring to Section 7 of the Arbitration and Conciliation Act, the Apex Court recorded as under: “18 In this case, admittedly, there is no document signed by the parties to the dispute, nor any exchange of letters, telex, telegrams (or other means of telecommunication) referring to or recording an arbitration agreement between the parties. It is also not in dispute that there is no exchange of statement of claims or defence where the allegation of existence of an arbitration agreement by one party is not denied by the other. In other words, there is no arbitration agreement as defined in Section 7 between the parties.