Judgment:
$~16 * + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
4. h May, 2018 ARB.P. 631/2017 M/S VAYAM TECHNOLOGIES LIMITED ........ Petitioner
Through: Mr.S.B. Upadhyay, Sr. Adv. with Mr.Santanu Sagar, Mr.Nishant Kumar & Mr.Jeewesh Prakash, Advs. versus M/S KALKI COMMUNICATION TECHNOLOGIES PRIVATE LIMITED ..... Respondent Iyengar & Mr.Deepak Through: Mr.B.S. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA Agarwal, Advs. NAVIN CHAWLA, J.
(Oral) Rev. Pet. 160/2018 1. This application has been filed by the respondent / Applicant seeking review of the order dated 12.01.2018 passed by this Court in ARB. P. 631/2017.
2. By its order dated 12.01.2018, this Court had inter alia held that as the existence of the Arbitration Agreement between the parties as contained in the “Teaming Agreement” dated 19.07.2010 and the invocation thereof by the petitioner is not denied by the respondent, there was no impediment in appointing an Arbitrator in terms thereof.
3. The Applicant being aggrieved of the said order, challenged the same before the Supreme Court by way of SLP (C) No.5473/2018. The Supreme Court passed the following order on 09.03.2018 in the said petition:-
"ARB.P. 631/2017 Page 1 “It is submitted by Ms. Meenakshi Arora, learned senior counsel appearing for the petitioner that it was argued before the High Court of Karnataka that the respondent had approached the courts in Bangalore for appointment of arbitrator and, therefore, they could not have approached the High Court of Delhi. On a perusal of the impugned order, we are not able to decipher whether the said issue was squarely raised before the High Court. In view of the aforesaid, we permit the petitioner to raise the issue by way of an application for review before the High Court within two weeks hence and request the High Court to dispose of the same within three weeks therefrom. In case of non-success in review, liberty is granted to challenge the order passed in review as well as the main order. With the aforesaid observation and request, the special leave petition stands disposed of.” 4. As there was a typographical error in the above order, the same was corrected by the Supreme Court in its order dated 15.03.2018. The present review petition has been filed on the basis of the permission granted by the Supreme Court as mentioned in the above order.
5. The counsel for the Applicant submits that the filing of the petition by the petitioner before the High Court of Karnataka had been duly disclosed by the Applicant in its reply. He submits that in terms of Section 11(11) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’), as the first application under Section 11 was filed by the petitioner in the High Court of Karnataka, only that Court was competent to decide on the request for appointment of an Arbitrator and therefore, the Section 11 petition in this Court was not maintainable.
6. The learned senior counsel for the petitioner/non-applicant on the other hand submits that the petition under Section 11 of the Act filed before ARB.P. 631/2017 Page 2 the High Court of Karnataka, being CMP. No.163/2017, was based on the Purchase Order dated 07.08.2012 executed between the parties that contains a separate and independent Arbitration Agreement between the parties. He submits that as the two Agreements are separate and distinct, the petition filed by the petitioner before the High Court of Karnataka cannot be considered as the first petition for the purpose of invoking Section 11(11) of the Act.
7. I have considered the submissions made by the counsels for the parties. The petition filed before this Court relies solely on the “Teaming Agreement” executed between the parties. The said Agreement contains an Arbitration Agreement between the parties in the form of Clause 10.2 thereof, which is reproduced hereinunder:-
"“10.2 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to for final arbitration held in New Delhi, to be conducted in the English language, in accordance with the Indian Arbitration and Conciliation Act 1996 of Government of India by one or more arbitrators appointed in accordance with the said Act, which shall be deemed to be incorporated by reference to this clause.” The Purchase Order executed between the parties contains a separate 8. and distinct Arbitration Agreement between the parties in the form of Clause 10 thereof, which is reproduced hereinunder:-
"“10. Arbitration Any dispute or difference arising under or in connection with this contract or any breach thereof, which cannot be settled by friendly negotiation and agreement among parties, shall be finally settled by arbitration, three arbitrators to be appointed, one arbitrator to be appointed by Kalki, one arbitrator to be appointed by the customer and the umpire to be appointed by the two arbitrators, the arbitration ARB.P. 631/2017 Page 3 being conducted in accordance with the provisions of the Arbitration & Conciliation Act, 1996. The venue of arbitration proceedings shall be Bangalore.” 9. Clearly therefore, there are two separate and independent Arbitration Agreements between the parties; one in the Teaming Agreement and the other in the Purchase Order.
10. The counsel for the Applicant submits that the Purchase Order was executed in terms of and in discharge of the obligations as contained in the Teaming Agreement. This is denied by the learned senior counsel for the petitioner who submits that these are two separate and distinct Agreements and in any case, the petitioner in the present petition is not making any claims under the Purchase Order.
11. The Supreme Court in Duro Felguera v. Gangavaram Port Limited, (2017) 9 SCC729 considering the scope of Section 11(6A) of the Act has held that the power of the Court under Section 11 of the Act is now confined only to examine the existence of the Arbitration Agreement. The legislative policy and purpose is essentially to minimise the Court’s intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11(6A) ought to be respected. The Supreme Court further held that as in that case there were six Arbitrable Agreements and each Agreement contains a provision for arbitration, there has to be an Arbitral Tribunal for the disputes pertaining to each Agreement. It was further held that while the Arbitrators can be the same, there has to be six Tribunals.
12. In view of the above, whether the Teaming Agreement survives upon the execution of the Purchase Order or not and whether the Teaming ARB.P. 631/2017 Page 4 Agreement stood terminated as per Clause 6.2 thereof are questions to be determined by the Arbitral Tribunal and not by this Court at this stage. Suffice to say at this stage that the learned counsel for the Applicant could not point out a single reference to the “Teaming Agreement” in the “Purchase Order” so as to at least prima facie connect the two. Equally, as the scope of the two petitions; one filed before the High Court of Karnataka and the other filed before this Court, is different as being based on two different Agreements, in my opinion, Section 11(11) of the Act would not have any application. Section 11(11) would be applicable only where the request for appointment of an Arbitrator is based on the same Arbitration Agreement. In the present case, as noted above, there are two distinct Arbitration Agreements. It is not the case of the Applicant that in the petition filed by the petitioner before the High Court of Karnataka the petitioner had invoked or relied upon the Arbitration Agreement as contained in the Teaming Agreement between the parties. In view of the above, I see no merit in the objections raised by the Applicant in the present Review Petition.
13. The learned counsel for the Applicant has further relied upon the judgment dated 03.05.2018 of the Supreme Court in Ameet Lalchand Shah and Others v. Rishabh Enterprises and Another, Civil Appeal No.4690/2018, to contend that even if the submissions of the petitioner are to be accepted, the two Agreements, that is, the Teaming Agreement and the Purchase Order are integrally related to each other and therefore, the same Arbitral Tribunal should adjudicate on both the disputes. He submits that as the Arbitral Tribunal was already constituted in relation to the dispute arising out of the Purchase Order, this Court should have referred the ARB.P. 631/2017 Page 5 disputes to the same Arbitral Tribunal.
14. I do not find any merit in the said submission of the Applicant. The Arbitration Agreement contained in the Teaming Agreement provides that arbitration shall be conducted at Delhi. At the same time, the Arbitration Agreement contained in the Purchase Order provides that the arbitration proceedings shall be conducted at Bangalore.
15. I have put it to the learned senior counsel for the petitioner if he would be agreeable in case the present arbitration proceedings are conducted by the same Arbitral Tribunal. He submits that he would have no objection, provided that Arbitral Tribunal conducts the proceedings at Delhi, as contained in the Teaming Agreement.
16. As observed in the order dated 12.01.2018 and hereinabove, for purpose of Section 11 of the Act, there are two separate Agreements between the parties with two different Arbitration Agreements. I cannot force the petitioner or the Arbitrator to shift the venue of arbitration as agreed to between the parties in such Agreements. In any case, this cannot be a ground for seeking review of the order passed by this Court.
17. Accordingly, I find no merit in the present Review Petition and the same is dismissed with no order as to costs. MAY04 2018/rv NAVIN CHAWLA, J ARB.P. 631/2017 Page 6