TaxTMI 
TaxTMI 
2023 (5) TMI 510
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..... 2. The issue involved in the present appeals is as such in a very narrow compass, namely, pre-referral jurisdiction of the Court under Section 11(6) of the Arbitration and Conciliation Amendment Act, 2015. 2.1 At the outset, it is required to be noted that before the High Court the appellant herein specifically raised an objection with regard to the existence of an arbitration agreement/clause. It was the case on behalf of the appellant that the dispute revolves entirely around MOU-2 which does not contain the arbitration clause. However, on the other hand, it was the case on behalf of the contesting respondent herein - original applicant that other agreement(s) i.e., SHA-1, SHA-2 and MOU-1 are interlinked/interconnected with the MO....
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....tween the existence and validity of an arbitration clause and non-arbitrability of the dispute. It is submitted that so far as the issue with respect to the existence and validity of an arbitration agreement at the stage of prereferral jurisdiction under Section 11(6) of the Act, the Court has to give a specific finding finally on such issue and such an issue should not be left to the Arbitral Tribunal. It is submitted that therefore, the High Court has misapplied and/or misread the decision of this Court in the case of Vidya Drolia (supra). 3.3 It is vehemently submitted by Shri Kapur, learned Senior Advocate appearing on behalf of the appellant that as such it is the duty cast upon the referral court to protect the parties from being f....
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....xistence of an arbitration agreement. 3.4 Shri Kapur, learned Senior Advocate appearing on behalf of the appellant has also relied upon the recent decision of this Court in the case of NTPC Ltd. Vs. SPML Infra Ltd., 2023 SCC Online SC 389 (paragraphs 19, 25 and 28). 4. While opposing the present appeals, Shri Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the original applicant has vehemently submitted that in the facts and circumstances of the case, the High Court has rightly followed the decision of this Court in the case of Vidya Drolia (supra) and has rightly referred the disputes between the parties to the arbitration. 4.1 It is vehemently submitted by Shri Kaul, learned Senior Advocate appearing on behalf ....
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....ection 11(6A) of the Arbitration Act which has been added through Arbitration and Conciliation Amendment Act, 2015 is required to be read which reads as follows: - "(6-A) The Supreme Court or, as the case may be, the High Court, while considering any application under subsection (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any court, confine to the examination of the existence of an arbitration agreement." 5.2 Thus, post-Arbitration and Conciliation Amendment Act, 2015, the jurisdiction of the court under Section 11(6) of the Act is limited to examining whether an arbitration agreement exists between the parties - "nothing more, nothing less". Thus, as per the Section 11(6A) ....
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....eadwood and trim off the side branches in straightforward cases where dismissal is barefaced and pellucid and when on the facts and law the litigation must stop at the first stage. However, so far as the dispute with respect to the existence and validity of an arbitration agreement is concerned and when the same is raised at pre-referral stage, the referral court has to decide the said issue conclusively and finally and should not leave the said issue to be determined by the arbitral tribunal. The reason is that the issue with respect to the existence and validity of an arbitration agreement goes to the root of the matter. As observed by the Constitution Bench in the case of N.N. Global Mercantile Pvt. Ltd. (supra) Sans an agreement, there ....
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....agraph 22 are to be read along with the prayer of the appellant to appoint different arbitrator(s). However, in paragraph 13, it is specifically observed by the referral court that "this Court cannot finally pronounce one way or the other on this aspect." In paragraph 14 also, it is specifically observed that the arbitrability of the dispute raised viz-a-viz the arbitration clause 27.3 of SHA-1, is an involved issue, can be addressed by the learned arbitral tribunal. Thus, the referral court has not pronounced anything finally on the existence and validity of the arbitration agreement which ought to have been done by the referral court. 7. Now, so far as the submission made by Shri Kaul, learned Senior Advocate that all the agreements be....