Section 45 arbitration review is only prima facie; mandatory arbitration clauses survive interim relief wording and collusive joinder.

Under Section 45 of the Arbitration and Conciliation Act, a court reaches only a prima facie view on the existence and validity of the arbitration agreement and on arbitrability, leaving final jurisdictional determination to the arbitral tribunal. Clause 16 was treated as a mandatory arbitration clause because its language required disputes to be resolved by binding arbitration, while references to interim relief and jurisdiction preserved only ancillary court remedies. Joinder of a non-signatory courier did not defeat arbitration, as the claim against it was viewed as contingent and not a bona fide basis to avoid the arbitration agreement; Sukanya Holdings was distinguished. Alleged waiver based on earlier foreign proceedings was not established on the material.

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Issues: (i) whether the writ petition was maintainable under Article 227 against an order passed under Section 45 of the Arbitration and Conciliation Act, 1996; (ii) whether, on an application under Section 45, the Court's determination as to existence and validity of the arbitration agreement and arbitrability of the dispute is final or only prima facie; (iii) whether Clause 16 of the agreement constituted a mandatory arbitration clause notwithstanding the reference to interim relief and the jurisdiction clause; (iv) whether the suit could avoid arbitration on the ground that the claim against the non-signatory courier was joint and several and inseverable, so as to attract the rule in Sukanya Holdings; and (v) whether the respondent had waived its right to arbitrate by earlier approaching a foreign court.

Issue: (i) whether the writ petition was maintainable under Article 227 against an order passed under Section 45 of the Arbitration and Conciliation Act, 1996.

Analysis: An intra-court appeal was not in issue. The challenge was to an order of the trial court invoking the supervisory jurisdiction of the High Court. The appellate restriction under Section 50 of the Arbitration and Conciliation Act, 1996 was relevant to appeals, not to the High Court's constitutional supervisory power. The order under challenge was therefore capable of being examined under Article 227.

Conclusion: The writ petition was maintainable.

Issue: (ii) whether, on an application under Section 45, the Court's determination as to existence and validity of the arbitration agreement and arbitrability of the dispute is final or only prima facie.

Analysis: Section 45 falls in Part II of the Act, which operates on a scheme distinct from Part I. The earlier authoritative view on Section 45 was that the judicial authority is only to reach a prima facie view on existence and validity of the arbitration agreement, leaving the final decision on jurisdictional objections to the arbitral tribunal. The reasoning in the Constitution Bench decision on Section 11 did not displace that position, because it concerned a different provision in a different part of the Act. The court therefore rejected the argument that the Section 45 determination was conclusive.

Conclusion: The determination under Section 45 was only prima facie and the arbitral tribunal retained the power to finally decide the issue.

Issue: (iii) whether Clause 16 of the agreement constituted a mandatory arbitration clause notwithstanding the reference to interim relief and the jurisdiction clause.

Analysis: The clause used mandatory language by stating that disputes "shall be resolved" by binding arbitration. The reference to temporary restraining orders, preliminary injunctions, or decree preserved only the right to seek interim or interlocutory relief before a court of competent jurisdiction. Read in context, the word "decree" was construed with the qualifying language surrounding it and was not treated as authorising a substantive final suit in derogation of arbitration. The governing-law and jurisdiction clause also did not dilute the arbitration agreement, because such clauses commonly regulate ancillary court proceedings and do not negate a binding arbitration covenant.

Conclusion: Clause 16 was held to be mandatory and consistent with arbitration.

Issue: (iv) whether the suit could avoid arbitration on the ground that the claim against the non-signatory courier was joint and several and inseverable, so as to attract the rule in Sukanya Holdings.

Analysis: The pleadings against the courier were treated as contingent and in substance as one for indemnity or contribution, while the real dispute against the signatory was referable to arbitration. The joinder of the courier was viewed as not bona fide and as a device to defeat the arbitration clause. Sukanya Holdings was distinguished because that case involved bona fide necessary parties and a different statutory setting under Section 8, which turns on "subject matter" language absent from Section 45. The court also relied on the need to prevent abuse of the ratio by clever drafting.

Conclusion: The suit could not defeat arbitration on the basis of Sukanya Holdings.

Issue: (v) whether the respondent had waived its right to arbitrate by earlier approaching a foreign court.

Analysis: The waiver plea was not properly raised before the court below and was not established on the materials as a bar to arbitration. The foreign proceedings had been withdrawn, and the petitioner itself had participated in arbitration and filed a counterclaim. In any event, the court treated waiver and non-arbitrability as matters going to merits and jurisdiction that would be examined by the arbitral tribunal under the law applicable to the agreement.

Conclusion: No waiver was made out so as to prevent reference to arbitration.

Final Conclusion: The impugned order referring the parties to arbitration disclosed no jurisdictional error or illegality warranting interference, and the challenge to the reference failed.

Ratio Decidendi: In a Section 45 inquiry, the court reaches only a prima facie view on the arbitration agreement and arbitrability, and a mandatory arbitration clause is not defeated by a collusive or contingent joinder of a non-signatory party.

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