TaxTMI 
TaxTMI 
2017 (7) TMI 1469
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....r / plaintiff fairly states that he has not examined the said aspect. 6. Though I find this Court in (i) West Coast Paper Mills Ltd. Vs. Asha Kapoor (2009) 157 DLT 696; (ii) Neeraj Chopra Vs. Beena S. Aggarwal 2013 SCC OnLine Del 2914; and, (iii) Milistore Switchgears Pvt. Ltd. Vs. Samtal Colour Ltd. 2014 SCC OnLine Del 2652 and the High Court of Punjab and Haryana in (i) Ashok Kumar Jain Vs. Haryana Iron & Steel Rolling Mill, Hisar 2009 SCC OnLine P&H 7823; (ii) Pushpinder Kumar Vs. Joginder Pal 2010 SCC OnLine P&H 6413; (iii) Lovely Obsessions Pvt. Ltd., Gurgaon Vs. Sahara India Commercial Corporation Ltd., Gurgaon 2012 SCC OnLine P&H 11449; (iv) Inam Vs. Shri Ram City Union Finance Ltd. 2013 SCC OnLine P&H 14192; and, (v) Munish Singal Vs. B.S.N.L. 2012 SCC OnLine P&H 8903 and the High Court of Kerala in K. Sanil Vs. Bharath Sanchar Nigam Limited 2016 SCC OnLine Ker 33517 and the Bombay High Court in Sudam Singh Vs. S.K. Builders 2014 SCC OnLine Bom 2266 to have entertained petitions under Article 227 of the Constitution of India against the orders of the District Court on applications under Section 8 of the Arbitration Act but in none of the said judgments has the question of ....
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....arbitration unless it finds that prima facie no valid arbitration agreement exists. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof; Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under subsection (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court. (3) Notwithstanding that an application has been made under sub- section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made." The impact of the said amendment will also be discussed hereinafter. 9. Owing to the language of Section 37(1) providing that an appeal shall lie against the orders mentioned thereunder and from n....
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....of the Arbitration Agreement. Per Section 8(3) also pendency of an application under Section 8(1) is not a bar to the arbitration being commenced and continued and even an Arbitral Award being made. In Shin-Etsu Chemical Co. Ltd. Vs. Aksh Optifibre Ltd. (2005) 7 SCC 234 also it was held that the view taken under Section 45 is only a prima facie view. This Court also in Vijay Vishwanath Talwar Vs. Meshreq Bank, PSC ILR (2003) II Del 392, Tandav Films Entertainment P. Ltd. Vs. Four Frames Pictures 2009 SCC OnLine Del 3292, Saipem Triune Engineering Pvt. Ltd. Vs. Indian Oil Petronas Pvt. Ltd. 2011 SCC OnLine Del 1104 (DB) and in Havels India Ltd. Vs. Electrium Sales Ltd. 2013 SCC OnLine Del 1474 held that the view taken under Section 8 of the Arbitration Act is a prima facie view. Thus, an order under Section 8 referring the parties to arbitration does not come in the way of any of the said parties before the Arbitral Tribunal setting-up of a plea under Section 16 of the Arbitration Act qua the existence or validity of the arbitration agreement and which finding is assailable under Section 34 of the Act. Section 8 of the Arbitration Act as amended w.e.f. 23rd October, 2015 also requir....
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....under Section 8 of the Act inasmuch as the refusal to refer the parties to arbitration amounted to failure of justice and that the High Court erred in coming to the conclusion that the relief could not be granted under Section 115 of the CPC. However the aspect of maintainability of a Revision Petition was not gone into. Moreover, there is an inherent difference between an order allowing an application under Section 8 of the Act and an order refusing an application under Section 8 of the Act. While in the case of the former, the existence and opportunity of challenge to the existence and validity of the arbitration agreement is available before the Arbitral Tribunal also, in the case of latter, the rights and obligations of the parties would then be determined by the Civil Court instead of by arbitration agreed upon between the parties and the order has a sense, in that context, of finality. It is perhaps for this reason that vide amendment w.e.f. 23rd October, 2015 the order refusing to refer the parties to arbitration under Section 8 has been made appealable and not the order referring the parties to arbitration. Thus merely because in Pinkcity Midway Petroleums supra the Supreme....
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.... under:- "That all terms and conditions of the Buyer's Agreement in respect of the said Unit shall be deemed to have been incorporated in this Deed save and except those of the terms and conditions of the Buyer's Agreement which are at variance with the terms and conditions contained in this Deed in which case same terms and conditions contained herein shall prevail." 17. The counsel for the petitioner / plaintiff has firstly argued that since there is no arbitration clause in the Sale Deed, the same would be treated as variance with the terms and conditions in the Agreement dated 9th February, 2012 and the arbitration clause contained in the Agreement dated 9th February, 2012 has thus been novated by virtue of Section 62 of the Indian Contract Act, 1872. 18. I am unable to agree. 19. The only reasonable way to interpret clause 5(j) aforesaid is that unless there is anything in the Sale Deed dated 8th January, 2014 to suggest that the resolution of disputes between the parties would not be by way of arbitration as provided in the Agreement dated 9th February, 2012, the arbitration clause aforesaid in the Agreement would be deemed to have been incorporated in the Sale Deed. 2....