M/s. Emaar India Ltd. vs Tarun Aggarwal Projects LLP & Anr.

Court

Supreme Court of India

Date

30 September 2022

Case No.

Civil Appeal No. 6774 of 2022

Result

Allowed

Bench

M.R. Shah, Krishna Murari

Citation

[2022] 13 S.C.R. 933 : 2022 INSC 1049

Headnote

Arbitration and Conciliation Act, 1996 – s.11(6) – Appointment of arbitrator – Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court allowing the application u/ss. 11(5) & (6) and appointing the arbitrators with respect to the dispute between the parties, the original applicantrespondent has preferred the instant appeal – Held: When a specific plea was taken that the dispute falls within Clause 36 of the Addendum agreement and not under Clause 37 and therefore, the dispute is not arbitrable, the High Court was at least required to hold a primary inquiry and prima facie come to conclusion on whether the dispute falls under Clause 36 or not and whether the dispute is arbitrable or not – High Court has not appreciated and considered the fact that in case of dispute as mentioned in Clauses 3, 6 and 9 for enforcement of the Agreement, the dispute is not arbitrable at all – Impugned judgment and order passed by the High Court appointing the arbitrators in terms of Clause 37 of the Addendum Agreement is hereby quashed and set aside – Matter is remitted to the High Court to decide the application u/s 11(5) and

(6) afresh and to pass appropriate order after holding preliminary inquiry/review on whether the dispute is arbitrable or not and/or whether the dispute falls within Clause 36 of the Addendum Agreement or not.

Vidya Drolia and Ors. v. Durga Trading Corporation (2021) 2 SCC 1 : [2021] 6 JT 460; Indian Oil Corporation Limited v. NCC Limited 2022 SC OnLine SC 896 (Civil Appeal No. 341 of 2022, decided on 20.07.2022); Oriental Insurance Co Ltd. v. Narbheram Power and Steel (P) Ltd., (2018) 6 SCC 534 : [2018] 4 SCR 826; Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem Development Corporation Ltd. (2013) 5 SCC 470: [2013] 4 SCR 331; Harsha Construction v. Union of India and Ors. (2014) 9 SCC 246: [2014] 7 SCR 668; Booz Allen & Hamiltan Inc. v. SBI Home Finance Ltd. (2011) 5 SCC 532 : [2011] 7 SCR 310; Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg.;(2019) 9 SCC 209 : [2019] 5 SCR 579; United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd. (2018) 17 SCC 607 : [2018] 12 SCR 1085 – relied on.

Uttarakhand Purv Sainik Kalyan Nigam Limited v. Northern Coal Field Limited (2020) 2 SCC 455 – referred to.

The Judgment of the Court was delivered by M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.12.2021 passed by the High Court of Delhi at New LLP & ANR. [M. R. SHAH, J.] Delhi in Arbitration Petition No. 637 of 2021, by which, the High Court in exercise of powers under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act) has appointed arbitrators to resolve the dispute between the parties, the original respondent – M/s EMMAR India Limited has preferred the present appeal. 2. That the or

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