Arbitration and Conciliation Act, 1996 – Arbitration clause in a partnership deed invoked by Appellant who is the legal representative of a deceased partner – Arbitration clause reads as: “That if at any time either during the continuance of the partnership or after the retirement of any partner, any dispute or difference shall arise between the partners or their respective heirs or any one claiming through or under them, the same shall be referred to arbitration. Arbitration shall be optional & the arbitrator will be appointed by partners with their mutual consent. In any case of dispute arise then the Jurisdiction of Indore Civil Court shall be applicable & acceptable by the partners” – Appellant filed a petition U/s.11(6) of the Arbitration and Conciliation Act, 1996 that was dismissed by the impugned order.
Held: Cannot be said that arbitration clause is optional in the sense that the arbitration clause is non-existent or that the matter would be referred to arbitration only if all the parties to the dispute agree – First portion of the arbitration clause is clear – Legal representatives or anyone claiming through a partner is entitled to invoke the arbitration clause – Reliance placed on second portion not to be read in isolation but in context of earlier portion of the arbitration clause – The arbitration clause can be invoked by an aggrieved party who wants to take recourse to arbitration and mutual agreement exists to this extent – Absence of mutual consent by parties to appoint arbitrator does not obliterate or write off the arbitration clause – In terms of the Arbitration and Conciliation Act, 1996 where parties cannot agree upon a common name as to who will act as an arbitrator, the court can appoint the arbitral tribunal. Reliance placed on Vidya Drolia v. Durga Trading Corpn. which in turn refers to the judgments in Fili Shipping Co. Ltd. v. Premium Nafta Products Ltd. and Oriental Insurance Co. Ltd. v. Narbheram Power & Steel (P) Ltd. on the issue of interpretation and construction of an arbitration clause – Arbitration clauses to be read in a pragmatic manner.
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Aandrita Deb, Hony. Associate Editor (Verified by: Shadan Farasat, Sr. Adv.) For short, “the A&C Act.” (2000) 4 SCC 272 [2007] 5 SCR 720 : (2007) 5 SCC 719. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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