Arbitration and Conciliation Act, 1996 – s.11(6) r/w. s.11(12)
(a) – Petitioner has filed the present petition in terms of s.11(6) r/w.s.11(12)(a) of the Act, seeking appointment of an arbitrator for the adjudication of disputes and claims in terms of clause
15.7 of the Services General Terms and Conditions Agreement dated 30.10.2015 entered into between the Petitioner and respondent no. 1 – The petitioner had also arrayed respondent no. 2 in the arbitration notice – Respondents have contended that respondent no. 2 has neither impliedly nor explicitly consented to the arbitration agreement between the petitioner and respondent no. 1:
Held: It is settled that the arbitral tribunal is the preferred first authority to look into the questions of arbitrability and jurisdiction, and the courts at the referral stage should not venture into contested questions involving complex facts – The respondents have raised a number of objections against the present petition, however, none of the objections raised question or deny the existence of the arbitration agreement under which the arbitration has been invoked by the petitioner in the present case – Thus, the requirement of prima facie existence of an arbitration agreement, as stipulated u/s. 11 of the Act, 1996, is satisfied – Once the arbitral tribunal is constituted, it shall be open for the respondents to raise all the available objections in law, and it is only after (and if) the preliminary objections are considered and rejected by the tribunal that it shall proceed to adjudicate the claims of the petitioner – Further, on the issue of impleadment of respondent no. 2, which is not a signatory to the arbitration agreement, elaborate submissions have been made on both the sides, placing reliance on terms of the agreements, email exchanges, etc – In view of the complexity involved in the determination of the question as to whether the respondent no. 2 is a party to the arbitration agreement or not, this Court is of the view that it would be appropriate for the arbitral tribunal to take a call on the question after taking into consideration the evidence adduced before it by the parties and the application of the legal doctrine as elaborated in the decision in Cox and Kings – Thus, petition is allowed and an arbitrator is appointed. [Paras 30, 32, 33, 34, 35]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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