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“The agreement executed between the parties is not disputed. This fact is not in dispute that the contract of the petitioner has been terminated and the money has been forfeited by the respondents in the month of October, 2019.”
Arguing that the LLP is a “third party” to the LLP Agreement is much like arguing that a company is a third party to its own Articles of Association.
The Court said that governmental entities must be treated in a similar fashion to private parties insofar as proceedings under the Arbitration Act are concerned, except where otherwise indicated by law.
In the present case, Clause 12 of the partnership deed indicated that the Partnership Act, 1932 and its Rules shall cover only those aspects not specifically mentioned in the deed.
“The legislative intent of inserting Section 29-A of the Act is only for expeditious disposal of the arbitration proceedings and not to confer a new defence upon an unsuccessful party to challenge the award and to reopen the entire proceedings.”
The Delhi High Court granted time to both parties to file written submissions on whether an arbitration clause in an invoice could constitute an arbitration agreement under Section 7 of the Arbitration and Conciliation Act, 1996.
The respondent raised an objection to the maintainability of the present application on the ground that the petitioner being an agent governed under Section 48 of the Bihar Cooperative Societies Act, 1935, was required to approach the Registrar of the Cooperative Societies for initiating a dispute resolution proceeding.
The Court noted Arbitration agreement specifying an even number of arbitrators cannot be a ground to render the arbitration agreement invalid. Appointed a sole arbitrator under Section 11(6) petition.
MSMED Act is a beneficial legislation for Micro Small & Medium Enterprises and provides that a buyer can also raise counter claims before the statutory arbitrator under the MSMED Act. Moreover, the scope of the Act as stated therein is to the extent that even if there is an agreement for arbitration between the parties, the MSMED Act will have overriding effect.
‘A reference to the document in the contract should be such that shows the intention to incorporate the arbitration clause contained in the document into the contract’
Supreme Court said that when there is a reference in the second contract to the terms and conditions of the first contract, the arbitration clause would not ipso facto be applicable to the second contract unless there is a specific mention/reference thereto.
Supreme Court concluded that the instant matter was not one of ‘incorporation’ but a case of ‘reference’ and clarified that a general reference would not have the effect of incorporating arbitration clause.
The Calcutta High Court emphasised on the doctrine of “kompetenz-kompetenz”, granting the Arbitral Tribunal the authority to rule on its own jurisdiction, including the existence and validity of the arbitration agreement.
The Bombay High Court explained that if it was to consider the instant application under Section 11 of A&C Act, it would have to work on the deficiency of stamp duty and penalty, if any.
Calcutta High Court held that all the reliefs sought by the petitioner is to protect the subject matter of the arbitration and to preserve the rights of the parties under the Share Purchase Agreement (SPA).
In the instant matter, the primary issue was the incorporation of arbitration clauses from the Master Facility Agreement and Settlement Agreement and the maintainability of a composite reference.
“It is palpably clear that the language of the purported arbitration clause must evidence an unambiguous, explicit and unequivocal intention to refer the disputes to arbitration, leaving no room for doubt that parties chose arbitration as their only mode of resolution of disputes.”
Where parties decide to put an end to the original contract as if it never existed and substituted a new contract with it, then in such a situation the original contract is extinguished by the substituted one and the arbitration clause of the original one perishes with it.
Any document in writing exchanged between the parties which provide a record of the agreement and in respect of which there is no denial by the other side, would squarely fall within the ambit of Section 7 of the Arbitration and Conciliation Act, 1996 and would amount to an arbitration clause.