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2020 (7) TMI 843
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....Mr. Aditya Sharma and Mr. Aditya Ajay i/by M/s. DSK Legal, for the Petitioner in CARBP/892/2019. Mr. Iqbal Chagla, Senior Advocate along with Mr. Sharan Jagtiani, Mr. Nirman Sharma, Mr. Shriraj Dhruv, Mr. Rishi Aggarwal, Mr. Karan Luthra, Mr. Shantanu Aggarwal, Mr. Adarsh Ramanujan, Ms. Heenal Desai, Ms. Mansi Chheda i/by M/s. Dhru & Co., for the Respondent in CARBP/737/2019. Mr. Janak Dwarkadas, Senior Advocate along with Mr. Sharan Jagtiani, Mr. Nirman Sharma, Mr. Shriraj Dhruv, Mr. Rishi Aggarwal, Mr. Karan Luthra, Mr. Shantanu Aggarwal, Mr. Adarsh Ramanujan, Ms. Heenal Desai, Ms. Mansi Chheda i/by M/s. Dhru & Co., for the Respondent in CARBP/738/2019. Mr. Pravin Samdani, Senior Advocate along with Mr. Sharan Jagtiani, Mr. Nirman Sharma, Mr. Shriraj Dhruv, Mr. Rishi Aggarwal, Mr. Karan Luthra, Mr. Shantanu Aggarwal, Mr. Adarsh Ramanujan, Ms. Heenal Desai, Ms. Mansi Chheda i/by M/s. Dhru & Co., for the Respondent in CARBP/892/2019. JUDGMENT: 1. By Arbitration Petition No.737 of 2019 filed under section 34 of the Arbitration and Conciliation Act, 1996, the petitioner has impugned the majority arbitral award dated 16th January,2019 and order dated 11th May, 2017 pass....
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....f the rights granted under 2004 SLA . 6. It was the case of the petitioner that the said 2015 SLA was continuation of the 2004 SLA. According to the petitioner, the respondent did not transfer any technology, confidential information or knowhow under 2004 to the petitioner but had only provided 50 Donor seeds of a transgenic variety which was used by the petitioner to develop several new proprietary Bt.cotton varieties which were multiplied under agriculture operations to produce seeds and sell to farmers. 7. It was the case of the petitioner that under the said two agreements, the respondent was liable to pay to the petitioner and has paid one time non-refundable fee of Rs. 50 lakhs. The respondent was also required to pay the amount as and by way of royalty fees/trait fees/ trait value on every 450gm packet of Bt.Cotton seeds of the proprietary varieties of the petitioner sold every year. 8. It was the case of the petitioner that since the year 2006-2007, the trait value charged and collected by the respondent had been subject to the various State Government Price Control Notifications. Since the year 2016, the said trait value was being regulated by the Central Governme....
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....ril, 2016 restraining the respondent from enforcing post termination obligations against the petitioner and its group companies. It is the case of the petitioner that several other parties had also filed complaints with CCI relating to various clauses of SLA so executed alleged to be anti-competitive and alleging abusive conduct of the respondent against them. 12. According to the petitioner, there was delay of over two years in submitting Investigation Report by the Director General to the CCI due to non-cooperation by the respondent and its group companies. The said CCI therefore levied a monetary penalty upon the respondent and its other group companies. On 28th June, 2018, the Director General submitted a Investigation Report before the said CCI. By letter dated 12th March,2019, the said CCI directed the parties including 18 officials of the respondent and Monsanto group companies under section 48 of the Companies Act to collect non-confidential Investigation Report by filing an undertaking that the Investigation Report would not be used for any purpose other than those provided under the Competition Act and Rules thereunder. 13. On 18th February,2016, the respondent and ....
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....vations made by the Arbitral Tribunal in the said order had been only for the limited purpose of the deciding application filed by the petitioner under section 16 of the Arbitration Act. The Tribunal did not express any opinion on the merits of the matter. The Tribunal made it clear that it would be open for the parties to raise all objections available to them and the Tribunal would consider and decide such objections in accordance with law without being influenced or inhibited by the observations made in the said order by the Arbitral Tribunal. The said order dated 11th May,2017 passed by the Tribunal is also impugned by the petitioner in this petition along with arbitral award. 17. The Arbitral Tribunal framed about 16 points for determination. Both the parties led oral as well as documentary evidence before the Arbitral Tribunal. The witness examined by the respective party was cross examined by the other party. Both the parties also filed written submissions before the Arbitral Tribunal in the application filed under section 16 as well as after conclusion of the oral submissions. Two of the arbitrators made an arbitral award dated 16th January,2019 allowing the claim of the....
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....eady rendered various prima facie findings about the violation of section 3(4), 4 read with section 19(3) of the Competition Act and has held that in view of the contravention of various provisions of the said Act, case was made out for investigation in the matter. Out of seven members of the said CCI, only one member had differed. 21. It is submitted by the learned senior counsel that the arbitration notice was issued by the respondent on 23rd February,2016 only after such prima facie findings were rendered by the said CCI against the respondent. In support of this submission, learned senior counsel invited my attention to paragraphs 16 to 20, 24 and 26 of the order passed by the CCI making various prima facie findings against the respondent. Learned senior counsel invited my attention to various points for determination framed by the Arbitral Tribunal and the findings rendered thereon by the Arbitral Tribunal. 22. It is submitted by the learned senior counsel that the dispute between the parties referred to the Arbitral Tribunal arose from a Sub- Licence Agreement dated 10th March, 2015 which was a renewal of Sub-Licence Agreement dated 21st February, 2004. Under the said 2....
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....Competition Act with the said CCI. It was a specific case of the Government of India in the said reference that various representations were made by it regarding the unreasonable high prices of Bt. cotton seeds due to charging of high royalties in the name of trait value by the respondent. The said complaint also referred to the dominant position which it was exploiting in an anti-competitive manner. The Government of India requested the said CCI to prescribe appropriate terms including trait value/royalties under the Sub-Licence Agreements so that the technology license was given at reasonable terms to all seed companies. 26. It is submitted by the learned senior counsel that the petitioner and its group companies filed information under section 19(1)(a) of the Competition Act with the CCI placing on record various violations of the provisions of the Competition Act allegedly committed by the respondent. Learned senior counsel invited my attention to the order dated 10th February,2016 passed by the Investigation Officer on the said information filed by the petitioner and the reference filed by the Government of India making various prima facie observations against the responden....
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....submitted by the learned senior counsel that the entire claim made by the respondent was for recovery of trait value as per the terms of the said 2015 SLA. It was a specific plea raised by the petitioner before the Arbitral Tribunal that the said 2015 SLA was void under the provisions of Competition Act. The validity of the said agreement was pending adjudication before the said CCI even prior to the invocation of the arbitration. He invited my attention to the various averments made in the application filed by his client under section 16 of the Arbitration Act before the Arbitral Tribunal, reply filed by the respondent to the said application before the Arbitral Tribunal and would submit that the dispute before the Arbitral Tribunal and the said CCI were interlinked. He submits that the scheme of the Competition Act expressly and impliedly excludes adjudication of competition law disputes through arbitration. 31. After inviting my attention to various provisions of the said Competition Act already referred to aforesaid, learned senior counsel would submit that the provision of the Competition Act vests vast and plenary powers upon the CCI and empowers to pass various orders/gra....
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.... adjudication of all disputes pertaining to the matters of competition law and is a complete self-contained code providing the statutory right of protection and remedies against anti-competitive conduct. Learned senior counsel placed reliance on the judgment of Delhi High Court in case of Jindal Steel & Power Ltd. vs. Union of India, 2012(127) DRJ 285 and in particular paragraphs 24, 25 and 28. 34. Learned senior counsel for the petitioner submits that the Arbitration Act carries with it a negative import that only such acts as are mentioned are permissible to be done and acts not mentioned are prohibited. Any remedy would have to be found within that statutory code itself. Since sufficient and adequate remedies are provided under the Competition Act for deciding disputes relating to violation of the provisions of the Competition Act, the remedy to enforce those statutory provisions lies exclusively within the Competition Act and the jurisdiction of an Arbitral Tribunal to decide such disputes is barred. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of Fuerst Day Lawson vs. Jindal Exports Limited, (2011) 8 SCC 333 ....
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....n, learned senior counsel placed reliance on the judgment of Supreme Court in case of A.Ayyasamy vs. A.Paramasivam, (2016) 10 SCC 386 and in particular paragraph 14, judgment of Supreme Court in case of Emaar MGF Land Limited vs. Aftab Singh, 2018 SCC Online SC 2771 and in particular paragraph 32, judgment of this court in case of Kingfisher Airlines Ltd. vs. Capt.Prithvi Malhotra, 2011 SCC Online Bom 1999 and in particular paragraphs 14, 16, 20 and 21. 38. Learned senior counsel also placed reliance on the judgment of Supreme Court in case of Pawan Hans Ltd. vs. Union of India (2003) 5 SCC 71 and judgment of Delhi High Court in case of Telefonaktiebolaget LM Ericsson (PUPL) vs. Competition Commission of India, (2016) SCC Online Delhi 1591. 39. The next submission of the learned senior counsel for the petitioner is that the proceedings before the CCI were pending even prior to the date of the respondent invoking arbitration agreement relating to the validity of the said 2015 SLA and thus the Arbitral Tribunal ought to have awaited the decision of the said CCI regarding the validity of the said 2015 SLA under the provisions of the Competition Act. The monetary claim made by th....
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....and in particular paragraphs 100 to 114. 43. It is submitted by the learned senior counsel that in the order dated 11th May, 2017 passed by the Arbitral Tribunal under section 16 of the Arbitration Act, the Tribunal has prima facie observed that it did not find merit in the contention raised by the petitioner in respect of the jurisdiction of the Arbitral Tribunal. At the same time, the Arbitral Tribunal noted that several issues raised by the parties which require adjudication at an appropriate stage including the issue whether the provisions of the Competition Act apply to the present case or not. In support of this submission, learned senior counsel placed reliance on paragraphs 46, 47, 51 and 52 of the order dated 11th May, 2017 passed by the Arbitral Tribunal. He submits that it is thus clear that the Arbitral Tribunal accepted the position that it could not proceed with the arbitration without finally deciding the issue of jurisdiction. 44. Learned senior counsel invited my attention to the issue nos. 2, 3, 3(a) to 3(f) framed by the Arbitral Tribunal for determination. He submits that the Arbitral Tribunal does not even purport to determine the plea of jurisdiction rai....
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....lton Inc. vs. SBI Homes Finance Limited, (2011) 5 SCC 532 and in particular paragraphs 50 to 52 and in case of Sukanya Holding vs. Jayesh H. Pandya, (2003) 5 SCC 531 and in particular paragraphs 16 and 17. 47. It is submitted by the learned senior counsel that though the petitioner had expressly raised various defences under the Competition Act regarding the invalidity of the SLA and the Arbitral Tribunal had framed issues 2 and 3 based on those defences, the Arbitral Tribunal had ignored the defences raised by the petitioner in its statement of defence and has decided those issues by only looking at the averments in the statement of claim. Learned senior counsel invited my attention to the findings rendered by the learned Arbitral Tribunal in paragraphs 78 to 86 of the impugned award rejecting the jurisdictional objection raised by the petitioner by merely stating that the reliefs sought by the respondent only relates to the alleged breaches of the said 2015 SLA and therefore the Arbitral Tribunal had jurisdiction to deal with the same. The Tribunal completely ignored the fact that the jurisdictional plea raised by the petitioner pertained entirely to the enforceability of the ....
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.... 51. It is submitted by the learned senior counsel that the disputes arises where there is a claim and a denial and repudiation of the claim. There can only be a dispute when claim is asserted by one party and denied by the other. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of Major (Retd.) Inder Singh Rekhi vs. Delhi Development Authority, (1988) 2 SCC 338 and in particular paragraph 4. He submits that while ruling on its own jurisdiction, the Arbitral Tribunal may embark upon an inquiry into the issues raised by the parties to the dispute. The issues are the disputed questions upon which the parties are at variance and desirous of obtaining a decision of the court. He relied upon the judgment of the Supreme Court in case of Indian Farmers Fertilizer Co-operative Ltd. vs. Bhadra Products, (2018) 2 SCC 534 and in particular paragraph 18 and in case of Gangai Vinayagar Temple vs. Meenakshi Ammal, (2009) 9 SCC 757 and in particular paragraph 53. 52. It is submitted by the learned senior counsel that the Arbitral Tribunal has permitted the recovery of the trait value in excess of that prescribed under statutory p....
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....ed 28th March,2017 passed by the learned Single Judge of the Delhi High Court in the proceedings filed by the respondent against the petitioner i.e. C.S.(Comm.) 132 of 2016 and would submit that while holding that the termination of the agreement by the respondent dated 14th November, 2015 was illegal, considered the impact of the fixation of the maximum trait value by the state price control notifications on the SLA in light of Article 11.03. He submits that Delhi High Court has rendered prima facie finding that the termination of the agreement by the respondent was unlawful, agreement stands reinstated but the obligation to pay trait value will have to be in accordance with Indian law. 56. Learned senior counsel invited my attention to the order passed by the Division Bench of the Delhi High Court against the said order passed by the learned Single Judge and would submit that the Division Bench of the Delhi High Court dismissed the appeal filed by the respondent bearing appeal no.FAO (OS) (Comm.) No. 76 of 2016. The petitioner had also filed a separate appeal being FAO (OS) (Comm.) No.86 of 2016 challenging the directions passed by the learned Single Judge. On 11th April, 2018....
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....uthority of India, 2019 9 SCC OnLine SCC 677 and in particular paragraphs 16 and 17 and would submit that the impugned arbitral award is contrary to the principles of law laid down by the Supreme Court in case of Associate Builders (supra) and judgment of Supreme Court in case of Ssangyong Engineering & Construction Co. Ltd. (supra). 61. It is submitted by the learned senior counsel that the trait value sought to be recovered by the respondent from the petitioner in the arbitral proceedings was nothing but a royalty for a licence of purported patent of the respondent granted to the petitioner under the said 2015 SLA and was sought to be claimed as compensation for the use of its patent. In support of this submission, learned senior counsel relied upon Articles 1.24, 1.25, 1.32, 2.01, 2.05(k), 2.05(l), 3.01, 9.02(b)(i), 9.04 and 9.06 of the said 2015 SLA. He submits that the petitioner had urged before the Arbitral Tribunal that the patent of the respondent was invalid in view of section 3(j) of the Patents Act, 1970 which expressly prohibits the patenting of plants, in whole or part thereof including seeds, varieties and essential biological processes. 62. It is submitted tha....
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....at the said Act is an enactment containing certain safeguards for farmers who have been conferred with the right to use, save, exchange, share, sell, sow and resow farm produce and the same is also applicable to the seeds. He placed reliance on the judgment of the Delhi High Court in case of Emergent Genetics India Private Limited vs. Shailendra Shivam, 2011(125) DRJ 173 and in particular paragraph 36. He submits that the said Act is a legislation enacted as a part of the public policy and is for the benefit of the farming and agricultural community at large. 66. Learned senior counsel invited my attention to the judgment of Supreme Court in case of Shri Lachoo Mal vs. Shri Radhey Shyam, (1971) 1 SCC 619 and in particular paragraphs 6 and 8 which judgment is relied upon by the Arbitral Tribunal to hold that the benefit sharing mechanism under section 26 of the PPVFR Act is a personal benefit available to the petitioner and therefore the petitioner could have waived such personal benefit by electing to enter into the SLA. He submits that this view of the Arbitral Tribunal is totally erroneous and contrary to the provisions of the PPVFR Act. The petitioner could not have waived the b....
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....arned senior counsel submitted that since the entire arbitration proceedings were conducted at a time when the order of the Division Bench revoking the respondent's patent over Bt.cotton seed was in operation, the Arbitral Tribunal thus ought to have heard the parties on the effect of the said Supreme Court judgment which had set aside the judgment of the Division Bench of the Delhi High Court. If the Arbitral Tribunal would have granted hearing on those aspect before rendering the arbitral award, the petitioner could have explained the impact of the Supreme Court judgment and would have submitted that the validity of the respondent's patent was pending adjudication in the proceedings before the Delhi High Court and if the respondent's patent was ultimately revoked, then there would be a complete failure of consideration under the said 2015 SLA. 71. Learned senior counsel for the petitioner submits that various findings rendered by the Arbitral Tribunal were based on the factually incorrect premise. Section 2(3) of the Arbitration Act has to be read with sections 60 and 61 of the Competition Act. Section 60 of the Competition Act clearly provides that the provisions of the said ....
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....16 was Rs. 1054 crores as is reflected by the petitioner in the affidavit in reply dated 20th February,2019 filed by the petitioner in petition filed by the respondent under section 9 of the Arbitration Act in this court. The net profit for the Financial Year 2015-16 even according to the petitioner was Rs. 154 crores as reflected in the said affidavit. 75. It is submitted that on one hand, the petitioner has failed to make payment of trait value under the terms of the contract for the technology of the respondent and on the other hand has used the very same technology to make and sell seeds to farmers at the maximum selling price and has earned huge revenues and profits from it. He submits that one of the components of maximum selling price of cotton seeds is trait value itself. He submits that the petitioner has already paid approximately Rs. 14 crores under the said 2015 SLA till June 2015. The petitioner however started raising dispute regarding the quantum of trait value thereafter and stopped making payments to the respondent. The petitioner had also deposited TDS amount with the authorities in favour of the respondent on 24th July, 2015 and 16th May, 2016 without making t....
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....vember, 2005. On 19th October, 2006, sections 1, 14 to 94 of the said PPVFR Act were brought into effect. If according to the petitioner, section 26 of the said Act was applicable to the said 2015 SLA, the petitioner was required to register itself under sections 14 and 15 read with section 24 of the said Act for section 26 to trigger. The petitioner as plant breeder, did not obtain registration under section 24 of the said Act to receive the benefits, if any, under the PPVFR Act. 78. It is submitted by the learned senior counsel that on 25th January, 2007, after detailed negotiations, the petitioner and the respondent agreed to amend the 2004 SLA and fixed a trait value of Rs. 150/- per packet of BG-I cotton seeds costing Rs. 750/- per packet for the period 2006-2008 onwards and Rs. 266/- per packet of BG-II cotton seeds costing Rs. 950/- per packet for the period 2007-2008 onwards. On 8th May, 2007, in view of the settlement, the State of Andhra Pradesh filed an additional affidavit before the MRTPC bringing on record the (1) Settlement and Release of Claims Agreement and (2) Supplementary and Amendment Agreement executed by and between the parties on 25th January, 2007 and pr....
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....in the said reference. 81. The petitioner had thereafter invoked the arbitration clause under the said 2004 SLA on 3rd February, 2010 raising a dispute before the arbitral tribunal concerning the payment of trait value for the Kharif 2009 seasons. The petitioner has filed petition under section 9 of the Arbitration Act on 9th February, 2010 seeking stay of the termination notice dated 19th November, 2009 before Delhi High Court. On 11th February, 2010, Delhi High Court disposed of the said petition filed by the petitioner under section 9. Delhi High Court recorded the statement made by the learned counsel for the petitioner that the petitioner would pay on or before 16th February, 2010, the amount claimed in the notice after deducting Rs. 9,49,03,263/- already paid by the petitioner to the respondent. Delhi High Court recorded in the said order that the petitioner had agreed to pay the amount claimed in the termination notice dated 19th November, 2009 within the time period stipulated in it. Delhi High Court accordingly disposed of the said arbitration petition having become infrutuous keeping all the rights and contentions of both the parties left open. 82. In the Writ Petit....
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....23 of the Contract Act, 1872 as being violative of the Patents Act, 1970 or the PPVFR Act. It is also held by the arbitral tribunal that the State Government Price Notifications did not and could not fix the trait value/license fee. The claims made by the respondent for contractual license fee were not contrary to the State Government Price Notifications. The said 2015 SLA is not vitiated either by fraud or misrepresentation. It is submitted that the view taken by the arbitral tribunal is a plausible view. Even if two views are possible based on the interpretation of the contract, such possible interpretation or such plausible interpretation cannot be substituted by another plausible view or another possible interpretation by this Court under Section 34 of the Arbitration Act. 86. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of McDermott International Inc v/s. Burn Standard Co. Ltd., (2006) 11 SCC 181 and in particular paragraph 111 and judgment of this Court in case of Fermenta Biotech Limited v/s. KR Patel in Arbitration Petition No. 545 of 2017 and in particular paragraph 10. He also placed reliance on the judg....
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...., 2002 was within the exclusive jurisdiction of the Competition Commission and the jurisdiction of the Arbitration Tribunal was ousted is totally misplaced. 89. It is submitted that the petitioner had admitted during the course of arguments that the monetary relief claimed by the respondent before the arbitral tribunal could not be granted by the said CCI. Under Section 61 of the Competition Act, jurisdiction of an arbitral tribunal is ousted only in respect of the matters which the commission or the Appellate Tribunal is empowered by or under the Competition Act to determine. He submits that since the CCI or the Appellate Tribunal is not empowered to determine the monetary claims made by the respondent, such claims made by the respondent before the arbitral tribunal were within the jurisdiction of the arbitral tribunal and could not be ousted. The petitioner had never challenged the said 2015 SLA as void ab-initio before the said CCI. On the contrary, the petitioner had prayed for specific performance of the said 2015 SLA before the said CCI. He submits that the proceedings before the said CCI predominantly dealt with post-termination obligations. The interim order passed by th....
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....the claim and therefore the averments contained in the statement of claim. The claims made by the respondent were 'in personam' and admittedly not capable of being adjudicated or being granted by the said CCI. The non-arbitrable defence raised by the petitioner does not, in law, determine or oust the jurisdiction of the arbitral tribunal. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Church of North India v/s. Lavajibhai Ratanjibhai, (2005) 10 SCC 760 and in particular paragraphs 38 and 39, judgment of Supreme Court in case of Abdulla v/s. Galappa, (1985) 2 SCC 54 and in particular paragraphs 5, 7 and 9 and judgment of Andhra Pradesh High Court in case of Sangnbhotla Venkatramaiah v/s. Kallu Venkataswamy, (1976) 2 APLJ 28 and in particular paragraphs 1, 3 and 6. 94. Learned senior counsel distinguished the judgments of the Supreme Court in case of A. Ayyasamy (supra) and paragraphs of the judgment in case of Vimal Kishore Shah (supra) relied upon by the petitioner and judgment of this Court in case of Dinesh Jaya Poojary (supra) on the ground that the Supreme Court and this Court in those judgments has held that the claims made by the claiman....
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....mpetition Act, 2002 is to protect competition and not the rights inter se amongst competitors. The Scheme of the Competition Act does not contemplate a machinery for seeking relief under a contract. The scope/ purpose of proceedings before the said CCI are different and distinct from recovery proceedings. Since the respondent could not seek any relief from CCI and since the said CCI does not provide a remedy to respondent, the jurisdiction of the arbitral tribunal to determine the claims made by the respondent cannot be ousted. He submits that since the respondent does not have a remedy under the Competition Act for recovery of its contractual dues, the Competition Law can never be regarded as a self-contained code qua such contractual claims. 98. In support of the aforesaid submissions, learned senior counsel placed reliance on the following Judgments :- (a) Judgment of Supreme Court in case of Saurabh Prakash v/s. DLF Universal Limited, (2007) 1 SCC 228 and in particular paragraphs 34 and 35. (b) Judgment of Supreme Court in case of Pawan Hans Limited v/s. Union of India, (2003) 5 SCC 71 and in particular paragraph 9. (c) Judgment of Delhi High Court....
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....nitio as canvassed by the petitioner, the question of its discontinuance, modification etc. could never arise. The existence of such possible remedies under Section 27 itself indicates that even where there is a contravention of Section 3 or Section 4, the contract is not void ab- initio. He submits that under the Competition Law, the concept of voidness has always been considered to be "transient" and not absolute and, thus, curable. In support of this submission, learned senior counsel placed reliance on the judgment of Supreme Court in case of Mahindra and Mahindra Limited v/s. Union of India, (1979) 2 SCC 529 and in particular paragraphs 10 and 14. He also relied upon the judgment of Court of Appeal in case of David John Passmore v/s. Morland, (1999) 1 CMLR 1129 and in particular paragraphs 7, 27, 28, 34 and 50. 102. In so far as the reliance placed by the learned senior counsel for the petitioner on the order dated 10th February, 2016 passed by the said CCI is concerned, it is submitted by the learned senior counsel for the respondent that the said order has been challenged by the respondent in Writ Petition No. 1776 of 2016. By an order dated 29th February, 2016, the Delhi....
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....and would submit that the petitioner itself has admitted that in the said ground that the issue regarding the validity of the SLA under the Competition Act was not capable of being adjudicated by the arbitral tribunal and was to be exclusively adjudicated by the Competition Commission of India. 106. Learned senior counsel invited my attention to ground (F) and would submit that it was contended by the petitioner itself that the those issues which the CCI was seized were only capable of being decided by the CCI exclusively. He submits that the arbitral tribunal rightly has not decided those issues and not expressed any opinion on those issues. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Harsha Constructions v/s. Union of India, (2014) 9 SCC 246 and in particular paragraphs 2 and 16 to 20. He submits that if the arbitral tribunal would have rendered a decision on issue nos. 2 and 3, it would have clearly exceeded its jurisdiction and such award would have been set aside under Section 34(2)(b)(i) of the Arbitration Act. In support of this submission, learned senior counsel placed reliance on the judgment of this Court in case of Union of India....
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....ince the petitioner has acted upon and received benefits under the said 2015 SLA, it would be liable to pay the license fee to the respondent. He relied upon by the judgment of Supreme Court in case of Piloo Dhuinshaw Sidhwa v/s. Municipal Corporation of City of Poona, (1970) 1 SCC 213 and in particular paragraphs 6, 7, 9 and 10. 110. During the course of the arguments advanced by the learned senior counsel for the petitioner, this Court inquired as to the option if any available to the arbitral tribunal to deal with the claims made by the respondent on its own merit or whether the arbitral Tribunal could suspend the arbitral proceedings and wait for outcome of the proceedings before CCI. The learned senior counsel for the petitioner made three possible recourse which according to him, the arbitral tribunal could have adopted i.e. (a) to dismiss the entire claim of the respondent. The respondent in that event should initiate arbitration after a final order in its favour under the Competition Act is passed by the said CCI or (b) to stay the arbitral proceedings under Section 9 and/or Section 17 of the Arbitration Act and (c) to seek a indefinite extension of time under Section 29....
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.... extension. He submits that if indefinite extension is permitted, the purpose and object of deciding the arbitral proceedings expeditiously would be frustrated. 114. In so far as issue of jurisdiction raised by the petitioner on the ground that the issue of patentability of the technology of the respondent is pending adjudication before the Delhi High Court, the arbitral tribunal has no jurisdiction to decide the claim of the respondent is concerned, it is submitted by the learned senior counsel that the patent remains valid and enforceable till the time it is revoked. On the date of the claim as well as on the date of the award, the patents covering the technology of the respondent were and even today are valid and enforceable. The award cannot be challenged on the basis of alleged assumed invalidity of patents. It is submitted that no other arguments regarding Patent Act was argued during the course of arguments by the learned senior counsel for the petitioner and are therefore deemed to have been given up. The petitioner has simplicitor raised a plea that the said 2015 SLA is forbidden by Section 3(j) of the Patents Act and thus is void under Section 23 of the Indian Contract....
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....f the notifications issued by the State Government of Andhara Pradesh is concerned, it is submitted by the learned senior counsel that the relevant State Legislation did not empower the State Government to fix of trait value/ license fee. Under Section 11, the Government has to fix maximum sale price after taking into consideration the trait value. The Andhra Pradesh Government has fixed the maximum sale price and not the trait value under the said notifications. 119. Learned senior counsel also invited my attention to the notifications issued by the State of Maharashtra and would submit that the State of Maharashtra also has not fixed the trait value/license fee but has only fixed the maximum sale price of cotton seeds. He submits that the State Government of Andhra Pradesh has infact admitted before the Andhra Pradesh High Court in a writ petition by filing an affidavit that it did not intent to fix the trait value/license fee. State of Telangana had also fixed Maximum Sales Price under the AP Cotton Seeds Act. The Andhra Pradesh High Court has stayed the Government notification issued by the State of Andhra Pradesh. On 31st March, 2016, the said notification issued by the Sta....
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....2009) 5 SCC 694 and in particular paragraphs 21 and 22. 123. It is submitted by the learned senior counsel that the order passed by the Delhi High Court as well as by the Supreme Court was for a period post termination when the Central Price Control regime under the Cotton Seeds (Price Control) Order, 2015 was in place. Under the said Cotton Seeds (Price Control) 2015, the Central Government was empowered to and had fixed the trait value. He submits that even in the said judgment of Delhi High Court and more particularly in paragraphs 131 and 134(8), this position was confirmed by holding that the order will apply only to financial year 2016-2017. 124. In so far as the issue as to whether the arbitral tribunal ought to have given hearing to the petitioner to make submissions on the order dated 14th January, 2019 passed by the Supreme Court or not is concerned, learned senior counsel for the respondent invited my attention to the minutes of meeting dated 16th January, 2019 on page 531 of the Convenient Compilation No.II of the documents. No prejudice of any nature was caused to the petitioner. The arguments were already concluded between the parties before the arbitral tribuna....
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....e 226 of the Constitution of India before the Competition Act came into force. The same party had filed a parallel proceedings before the CCI after the said Competition Act came into force for the same relief. Delhi High Court adjourned the writ proceedings awaiting the decision of the CCI on the basis that the writ petitioner could achieve full relief before the CCI. He submits that the said judgment would not apply to the facts of this case. In this case, the proceedings before the arbitral tribunal and before the CCI were filed by the two opposite parties. The CCI has no power to grant monetary relief in favour of the respondent. He submits that in any event, the said judgment would assist the case of the respondent on the issue that parallel proceedings are maintainable but unlike writ proceedings. There being no power granted to the arbitral tribunal to adjourn the arbitral proceedings sine die. The powers of Writ Court cannot be compared with the powers of the arbitral tribunal. 128. Learned senior counsel for the respondent distinguished the judgment of Supreme Court in case of Fuerst Day Lawson Ltd. (supra) on the ground that the Supreme Court in that judgment had consid....
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....atutory violation would not detract from the jurisdiction of the arbitral tribunal to resolve a dispute arising out of a civil or contractual relationship. 131. Learned senior counsel for the respondent distinguished the judgment of Supreme Court in case of Emaar MGF Land Ltd. (supra) by inviting my attention to the paragraph 55 of the said judgment. It is submitted that the Supreme Court in the said judgment did not hold that the consumer disputes are non-arbitrable. It is held that the remedy under the Consumer Protection Act was available to a consumer in addition to the general remedy and once he had invoked that special remedy, he could not be relegated to arbitration. He submits that in this case since the CCI has no jurisdiction to award any monetary claim in favour of the respondent, the respondent had rightly invoked the arbitration agreement. 132. Learned senior counsel distinguished the judgment of this Court in case of Dinesh Jaya Poojary (supra). He invited my attention to the paragraphs 3, 28, 33, 34, 37, 38 and 39 of the said judgment and would submit that admittedly the CCI is not empowered to adjudicate upon the contractual claim of the respondent for unpaid ....
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....d parallelly. 135. Learned senior counsel distinguished the judgment of Supreme Court in case of Arun Kumar and Ors. (supra) on the ground that the said judgment is not at all applicable to the facts of this case. He submits that the alleged invalidity of a contract or violation of the Competition Act is not a 'jurisdictional fact' for the arbitral tribunal under Section 16 of the Arbitration Act. Invalidity of a contract is a arbitral dispute by itself on merits and is not a jurisdictional fact. Statutory remedies against validity of contract provide a 'jurisdictional fact' but restricts itself to the aspects mentioned in the statute. The question as to whether contract being void or not is not a jurisdictional fact. 136. Learned senior counsel for the respondent distinguished the judgment of Supreme Court in case of Competition Commission of India (supra) relied upon by the learned senior counsel on the ground that the said judgment support the case of the respondent and not the petitioner. It was held by the Supreme Court in the said judgment that an order under Section 26(1) of the Competition Act is only akin to a departmental function and does not affect rights and liab....
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....n case of Sundrabai Sitaram (supra) on the ground that in the said judgment this Court came to a conclusion that the contract in question was void as it was prohibited by the Bombay District Police Act. In this case, no Court or Tribunal has declared the 2015 SLA to be void. The said agreement is not forbidden by a law. It is not even the case of the petitioner before the said CCI that the said 2015 SLA is forbidden by law. He submits that unless the petitioner would have produced any order from the said CCI holding the 2015 SLA as void or forbidden by law, the arbitral tribunal was not bound to stay its all proceedings and had jurisdiction to proceed on the premise that the said 2015 SLA was valid and enforceable. 141. In so far as the judgment of this Court in case of M3NERGY SDN. BHD. (supra) is concerned, it is submitted by the learned senior counsel that the said judgment has been set aside by the Division Bench of this Court reported in 2019 SCC Online Bom 2915. The Special Leave Petition filed against the said judgment of the Division Bench of this Court has been dismissed. The judgment of the learned Single Judge thus cannot be relied upon by the petitioner. 142. Lear....
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....l for the petitioner appearing for the petitioner in Commercial Arbitration Petition No. 737 of 2016 in rejoinder submits that the Competition Act is a self- contained code. Till the issue of validity of the said 2015 SLA was decided by the said CCI, the arbitral tribunal could not have entertained the monetary reliefs claimed by the respondent. The claim in monetary relief was depending upon the issue of validity of the 2015 SLA. The issue of validity of the said 2015 SLA is a jurisdictional fact. Learned senior counsel placed reliance on Section 2(4) of the Contract Act, 1872 and Section 10 of the Specific Relief Act, 1963 and would submit that the claims made by the respondent for recovery of the amount was depending upon the validity and enforceability of the said 2015 SLA. 145. It is submitted that since the validity of the said 2015 SLA which was challenged before the said CCI, the arbitral tribunal could not have proceeded on the premise that there was a valid agreement between the parties and based thereon could not have awarded any reliefs in favour of the respondent. Learned senior counsel invited my attention to the paragraph 5 of the judgment of Supreme Court in case....
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....iled before the arbitral tribunal. Section 21 has to be read with Section 43 of the Arbitration Act. Once notice under Section 21 is received by the other side, limitation in respect of such dispute stops. 148. It is submitted that the dispute in arbitral proceedings would be raised in the statement of claim and also in the written statement. Even under Section 34(2)(b) of the Arbitration Act Court has to see the subject matter of dispute while hearing of the application under Section 34 impugning the arbitral award. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Prabhakaran and Ors. v/s. M. Azhagiri Pillai (Dead) by LRs. and Ors., (2006) 4 SCC 484 and in particular paragraph 21 and would submit that the arbitral tribunal cannot decide the issue of jurisdiction purely on the averments made in the plaint but has to decide the said issue based on the difference. The Competition Commission of India has already taken a prima-facie view on the issue of validity of the said 2015 SLA against the respondent and in favour of the petitioner herein. 149. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Man Roland Druc....
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....e (supra) on the ground that the provisions of law considered by the Court of Appeal in the said judgment were totally different. Section 3(1) of the Competition Act prohibits the entry itself and provides for permanent prohibition. Learned senior counsel distinguished the judgment of Supreme Court in case of Mahindra and Mahindra Limited (supra). He submits that Section 13(2) considered by the Supreme Court in the said judgment is not similar to any of the provisions of the Competition Act. 154. Learned senior counsel distinguished the judgment of Supreme Court in case of Pankaj Mehra (supra) and would submit that the powers of Companies Court under Section 536 (3) of the Companies Act, 1956 to declare a transaction as void ab-initio unless otherwise rectified by the Companies Court is different then the powers of CCI under Section 3(2) of the Competition Act. 155. Learned senior counsel for the petitioner cited judgment of Supreme court in case of Tarsem Singh v/s. Sukhminder Singh, 1998 (3) SCC 471 and in particular paragraphs 30 to 33 and would submit that since the said 2015 SLA itself was void since inception, no relief could have been granted by the arbitral tribunal a....
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....tted by the learned senior counsel for the petitioner that the petitioner has collected the trait value as per the price control order and not as per the provisions of the said 2015 SLA. The petitioner has deposited the amount in this Court pursuant to the order passed by this Court in the arbitration petition filed by the respondent under Section 9 of the Arbitration Act in this Court. The amount collected by the petitioner for the subsequent period has been deposited before the Delhi High Court by the petitioner. The petitioner has merely developed seeds by biological process and has sold such seeds to large number of farmers. He submits that the Arbitration Act is a complete code. 160. It is submitted that the claim made by the respondent before the arbitral tribunal was based on such patent. These facts are admitted by the respondent in the pleadings filed before the arbitral tribunal. The respondent did not make any complaint against the petitioner for supply of seeds. The petitioner did not apply for declaration of the said 2015 SLA as void before the said CCI but had applied for modification of the said agreement. The said CCI can still declare the said 2015 SLA as void. ....
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....f the Arbitration Act. 164. Learned senior counsel placed reliance on paragraphs 50 and 55 of the said judgment. He submits that the facts before this Court in the said judgment and in this matter are totally different. He relied upon Section 17(2) of the Arbitration Act and would submit that in view of the amendment to Section 17, orders of arbitral tribunal under Section 17 are enforceable as a decree of the Court and thus arbitral tribunal cannot exercise the powers to suspend the proceedings before the arbitral tribunal for non compliance of the order under Section 17. 165. Learned senior counsel placed reliance on the judgment of Delhi High Court in case of Shree Tirupathi Udyog v/s. Indraprastha Gas Ltd. in Arb.(Comm.) No.8 of 2018 dated 1st March, 2018, it has been held that there is no power/ provisions in the Arbitration Act empowering the arbitral tribunal to stay the proceedings before it. Learned senior counsel distinguished the judgment of Supreme Court in case of Prabhakaran and Ors. (supra) and would submit that the said judgment explains the meaning of "jural relationship" between the parties which would mean the rights and obligations of both against each oth....
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....e of an unregistered contract, the arbitration agreement would be valid and binding on the parties. In this case, no determination has been made in relation to the said 2015 SLA that the arbitration was unenforceable after adjudication. In that judgment before the Supreme Court, the question was related to the existence and invalidity of the arbitration agreement, which is a jurisdictional fact under Section 16 of the Arbitration Act. In this case, existence and validity of the arbitration agreement is not disputed by the petitioner. 169. Learned senior counsel distinguished the judgment of Supreme Court in case of Tarsem Singh (supra) on the ground that the said judgment is not applicable to the facts of this case since the said 2015 SLA has not been declared void or discovered to be void as on date. Under Section 3 of the Competition Act an agreement is not void per se on account of the various reliefs possible under Section 27 of the Competition Act including modification of the agreement. He relied upon paragraphs 32 of the said judgment and would submit that the Supreme Court infact rejected the argument that Section 65 of the Contract Act was not applicable to void contrac....
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....ter demanding a refund of amount of Rs. 74,24,00,000/- along with interest thereon @ 18% p.a. under the "on account of" arrangement of the years 2010- 2014 in light of the various State Government Price Control Notifications. The respondent by its letter dated 28th October, 2015 denied the demand for refund raised by the petitioner. By notice dated 14th November, 2015, the respondent terminated the said 2015 SLA. By letter dated 23rd November, 2015, the petitioner called upon the respondent to withdraw the letter of termination of the said 2015 SLA. 174. On 2nd November, 2015, the Government of India filed a report before the Competition Commission of India (hereinafter referred to as "the said CCI") seeking investigation and action against the respondent and its group companies for alleged contravention of the provisions of the Competition Act. On 15th December, 2015, the petitioner in Commercial Arbitration Petition No. 737 of 2019 filed an Information before the said CCI against the respondent and its group companies challenging several alleged anti-competing clauses and alleged abusive conduct of the respondent including charge of high trait value over the State Government P....
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....11th May, 2017 and allowed part of the claims made by the respondent by an arbitral award dated 16th January, 2019. Majority of the arbitrators directed the petitioner to pay an amount of Rs. 117.46 crores trait value for sales between the 1st April, 2015 and 14th November, 2015 under the said 2015 Special Licence Agreement with interest at different rates from the date of invocation of the arbitration till payment/realization and dismissed the counter claim made by the petitioner for refund of Rs. 19.51 crores. The 3rd arbitrator made a dissenting award and dismissed the claims made by the respondent. Being aggrieved by the said majority award, the petitioner has filed this Commercial Arbitration Petition No. 738 of 2019. 179. Mr. Rohan Kadam, learned counsel for the petitioner adopted the submission made by Mr. Khambata, learned senior counsel for the petitioner in Commercial Arbitration Petition No. 737 of 2019. 180. Mr. Dwarkadas, learned senior counsel for the respondent on the other hand adopted the submission made by Mr. I. M. Chagla, learned senior counsel for the respondent in Commercial Arbitration Petition No. 737 of 2019 and made additional submissions. He submitt....
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....rbitral tribunal was arising out of sale and delivery and the amount due thereon and under a case of specific performance. Such cause of action has nothing to do with any possible defence that may be raised by the petitioner. An agreement is presumed to be valid unless proved otherwise. The burden of proving the fact that an agreement is void was on the petitioner. He submits that even if the said 2015 SLA is held unenforceable on account of the findings if any rendered by the said CCI in future, the petitioner is nevertheless liable to pay the undisputed invoice amount since it has obtained benefits under the said 2015 SLA. 183. It is submitted by the learned senior counsel that in the interim application filed by the petitioner before the said CCI, under Section 33 of the Competition Act, the petitioner had prayed for an injunction against the respondent not to terminate the said 2015 SLA and applied for enforcement of the said 2015 SLA. The petitioner did not challenge the validity of the said 2015 SLA as void and prayed that the respondent shall not terminate the said 2015 SLA. 184. It is submitted by the learned senior counsel that the arbitral tribunal is not bound to w....
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.... the State Government Price Control Notifications. The respondent however unilaterally terminated the said 2015 SLA by notice dated 14th November, 2015. 188. On 23rd November, 2015, the petitioner issued a letter of demand seeking refund amount of Rs. 28.50 crores along with interest @ 18% p.a. under the "own account" arrangement for the years 2010-2014 in light of various State Government Price Control Notifications. On 27th November, 2015, the Government of India filed a reference before the said CCI seeking investigation and action against the respondent and its group companies for alleged contravention of the provisions of the Competition Act. On 15th December, 2015, the petitioner along with its associate companies filed an information before the said CCI against the respondent and its group companies challenging several alleged anti-competitive clauses and alleged abusive conduct of the respondent including charge of high trait value over the State Government Price Control Notifications. 189. It is the case of the petitioner that on 10th February, 2016, the said CCI passed an order after hearing the parties holding that there existed a prima-facie contravention of provi....
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....nt position by charging an excessive, unreasonable and discriminatory trait fee. The issue regarding the validity of the said 2015 SLA was a subject matter of the proceedings before the said CCI and was not capable of being adjudicated by the sole arbitrator. The entire dispute between the parties was not arbitrable. The learned arbitrator however allowed the claim of the respondent in the sum of Rs. 13.23 crores with interest towards trait fees demanded by the respondent under the said agreement. 193. It is submitted by the learned senior counsel that the impugned award is in contravention of Section 34(2)(b)(i) of the Arbitration Act on the ground that the validity of the said 2015 SLA was challenged before the said CCI and the same is still pending. On 27th November, 2015, the Ministry of Agricultural and Farmer Welfare, Government of India filed a reference under Section 19(1)(b) of the Competition Act with CCI regarding alleged unreasonable high price of Bt. cotton seeds charged by the respondent and others. The petitioner had filed an information under Section 19(1)(a) of the Competition Act with the CCI against the respondent alleging violation of the Competition Act on v....
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....He submits that the said CCI having found that there exist a prima-facie case under Section 26(1) and (2) of the Competition Act, it directed the Director General to pass an order for investigation to be made. If there would not have been prima-facie case, the tribunal ought to have closed the matter forthwith and to pass an appropriate order in that behalf. 197. Learned senior counsel placed reliance on Regulation 18(2) of the Competition Commission of India (General) Regulation 2009 promulgated under Section 64 of the Competition Act and would submit that under the said Regulation, if the commission is of the opinion that a prima-facie case exists, the Secretary of the commission shall convey the direction of the commission within seven days to the Director General to investigate the matter. Such direction for investigation to the Director General shall be the deemed commencement of the enquiry under Section 26 of the Act. 198. Learned senior counsel invited my attention to the findings rendered by the learned arbitrator in paragraph 58 of the impugned award and would submit that the finding of the learned arbitrator that the learned arbitrator did not have jurisdiction is ....
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....ator in paragraphs 58 of the impugned award to decide on ouster of jurisdiction is itself patently erroneous. The learned arbitrator had to determine the said issue solely on the wording of the relevant provisions/provisions of the concerned statute. 201. It is submitted by the learned senior counsel that Sections 3 and 4 of the Competition Act are to regulate the commercial dealings in the interest of the general public and prohibit the execution and/or performance of agreement that are likely to cause adverse effects of competition or an abusive of dominance. Thus, prohibition of agreements effect the general public interest. Statutory prosecution under Section 3 against anti-competitive agreement is not prospective i.e. from the date the said CCI is seized all the matter. The CCI has wide powers under Section 19(1) to enquire into any alleged contravention of the provisions contained in Section 3(1) or 4(1) on its own motion or upon receipt of information from any person or through their association or trade association. Under Section 27(d) of the Competition Act, CCI may even direct that the contract in question stands modified to the extent and in the manner as may be speci....
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....g before the CCI which authority is a statutory authority vested with exclusive jurisdiction to determine the same. These issues were raised prior to the date of commencement of arbitral proceedings and their determination was pending prior thereto. 206. It is submitted that the learned arbitrator lacked jurisdiction to decide on the live controversy in issue between the parties. He invited my attention to the paragraphs 78 and 109 of the impugned award and would submit that the jurisdiction of the learned arbitrator to entertain the claim of the respondent would only spring forth after a determination of the issue whether the SLA's are valid under the Competition Act or not. It is only then the arbitral tribunal would possess the jurisdiction to enforce the SLA as a contract and grant relief thereon. He submits that if the sole arbitrator would not exercise its jurisdiction in adjudicating the claims made by the respondent, the respondent would not be remediless. Even if the CCI would have decided in favour of the respondent, the respondent could have always invoked arbitration after its final order would have been passed by the said CCI. 207. Mr. Pravin Samdhani, learned se....
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....ssue which fall under the exclusive domain of the said CCI under the provisions of the Competition Act, no grounds under Section 34(2) (b)(i) of the Arbitration Act is made out by the petitioner. The learned arbitrator has only directed the petitioner to pay the contractual dues of the respondent arising out of the sale of seeds having technology of the respondent, which amount has been already received by the petitioner from the farmers/respective customers. The amount directed to be paid by the award is a fraction from the sale price already received by the petitioner. 210. It is submitted by the learned senior counsel that mere pendency of proceedings before the CCI cannot oust the jurisdiction of the arbitral tribunal. There is no final determination of the issue whether the said 2015 SLA or any clauses under the 2015 SLA is in breach of Section 3 or 4 of the Competition Act. No final order under Section 27 of the Competition Act has been passed by the said CCI till date. By filing or pendency of a complaint before the said CCI by the petitioner cannot result in either a declaration of voidness under Section 3 or the passing of an order under Section 27 of the Competition Ac....
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....n if the analogy of Section 10 of the Code of Civil Procedure is attracted in the present case, under the said provision, subsequent proceedings could be stayed only if the tribunal trying the earlier proceedings was competent to try the subsequent proceedings. In this case, admittedly the said CCI did not have jurisdiction to try the contractual claims of the respondent which was the subject matter of the arbitral proceedings. The learned arbitrator thus could not have granted any stay of the proceedings before him by applying the analogy of the Section 10 of the Code of Civil Procedure, 1908. In any event, the decision whether or not to stay the proceedings is a discretional decision and cannot be questioned under Section 34 of the Arbitration Act. 215. It is submitted by the learned senior counsel that the petitioner is unjustly enriching itself of the amount recovered by the petitioner from the farmers including the contractual trait value of Rs. 13,23,39,225/-. He submits that the view taken by the learned arbitrator is a plausible view on the facts and in law and thus cannot be interfered with by this Court in this Commercial Arbitration Petition filed under Section 34 of ....
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....ties. Clause 11.10 of the said agreement provided that each of the parties acknowledge that they had read the said agreement and understood all of its terms, and that, the said agreement was being executed voluntarily without duress and with full knowledge of its legal significance. The parties also acknowledged that they had received independent legal advice from their respective attorneys with respect to the legal consequences of entering into the said agreement. The said clause recorded the arbitration agreement under Article 11.02. 219. The dispute arose between the parties. It was the case of the respondent that under the said 2015 SLA, the petitioner paid an amount of Rs. 9 crores towards the trait value in or around June 2015. Out of the said amount of Rs. 9 crores, the respondent on first in first out basis appropriated Rs. 80,38,636/- towards outstanding dues under 2004 SLA and Rs. 8,19,61,637/- towards dues under 2015 SLA. It was the case of the respondent that the petitioner failed to make payment of the balance amount of trait value and raised frivolous issues by letter dated 19th July, 2015 thereby refusing to make payment of the trait value. 220. It was contende....
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....e and without prejudice to their rights to challenge the jurisdiction of the arbitral tribunal, owing to the fact that during the course of the hearing of the pending application under section 9 of the Arbitration Act before this court, the respondent had suggested converting the said application under section 9 to application under section 17 of the Act, the petitioner was agreeable to refer the dispute between the parties to the arbitral tribunal comprising of three arbitrators. 223. The petitioner nominated a former Judge of the Supreme Court as its nominee arbitrator. In the said reply, the petitioner reserved its right to initiate appropriate legal proceedings against the respondent for recovery of the claim against the petitioner in the sum of Rs. 308.95 lacs and any further/other claims as may be advised together with all damages, costs and expenses. 224. The respondent filed a detailed statement of claim before the arbitral tribunal inter alia praying for an amount of Rs. 117,39,38,943/- as and by way of trait value against the petitioner for the sales between 1st April, 2015 and 31st October, 2015 and a sum of Rs. 690,249/- as and by way of trait value on 1st Novembe....
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....habited by the observations made in the said order. The arbitral tribunal accordingly decided the said issue of jurisdiction again in the final award rendered in the matter. 228. The arbitral tribunal framed 16 issues. Issue no.3 was divided in 6 sub-parts. The first issue was 'whether present dispute was not arbitrable as alleged in the statement of defence ?' The arbitral tribunal held that the dispute was arbitrable. The arbitral tribunal has adverted to various judgments of Supreme Court while dealing with the said issue of arbitrability of the dispute. The arbitral tribunal interpreted the arbitration agreement forming part of the said 2015 SLA and rightly held that the claims made by the respondent were arbitrable. The arbitral tribunal also interpreted section 61 of the Competition Act which provides for exclusion of jurisdiction of Civil Court in respect of any matter which the Commission or the Appellate Tribunal is empowered by or under the Competition Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the said Act. Arbitral tribunal held that ....
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....dication by the tribunal shall be in the nature of the right and liability of the parties to the agreement and would relate to right in personam and not right in rem. If the arbitral tribunal would have held that it had no jurisdiction in the matter and would have dismissed the claim of the respondent, the respondent would not have any remedy at all. In the proceedings before the CCI, whatever may be the outcome, the respondent would not be able to get any effective relief or decree or award directing the petitioner herein to pay the particular amount to the respondent. The arbitral tribunal rightly held that the respondent had certain rights under the 2015 SLA and thus it must also have remedy for enforcement of such rights. If the challenge to the jurisdiction of the tribunal by the respondent is upheld, it would result in dismissal of the claim without adjudication of the merits and without granting any relief to him. The tribunal accordingly rightly held that wherever there is right, there is a remedy or where there is no wrong without remedy. 233. In paragraph 85 of the impugned award, the arbitral tribunal rightly held that the tribunal has jurisdiction to entirely deal wi....
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.... alleged in the Defence read with Paragraphs 9.25 to 9.38 of the Information ? Issue No.3(c)- Whether the Claimant has imposed unfair conditions under the Subject Agreement in violation of Section 4(2)(a)(i) of the Competition Act, 2002 as alleged in the Defence read with Paragraphs 9.39 to 9.48 of the Information ? Issue No.3(d)- Whether the Claimant has discriminated in favour of Affiliates in contravention of Section 4(2)(a)(ii) and 4(2)(i) of the Competition Act, 2002 as alleged in the Defence read with Paragraphs 9.49 of the Information ? Issue No.3(e)- Whether the Claimant via the Subject Agreement has leveraged its dominant position in violation of Section 4(2)(e) of the Competition Act, 2002 as alleged in the Defence read with Paragraphs 9.54 to 9.56 of the Information ? Issue No.3(f)-Whether the Subject Agreement is violative of Section 3(1) and 3(4) of the Competition Act, 2002 as alleged in the Defence read with the Information?" 237. Insofar as issue no.2 is concerned, arbitral tribunal held that it was clear that the question whether or not Competition Act, 2002 applies to 2015 SLA can and is to be decided only by the CCI. It is r....
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....fore the CCI under the provisions of Competition Act was disposed of on one way or the other. 240. It is not in dispute that the petitioner had also filed a counter claim against the respondent for recovery of the substantial amount before the same arbitral tribunal under the same 2015 SLA. Substantial part of the counter claim was subsequently withdrawn by the petitioner before the arbitral tribunal. The arbitral tribunal rejected the counter claim of Rs. 19.51 crores which was for the refund claimed by the petitioner against the respondent under the said 2015 SLA. 241. Learned senior counsel for the parties also addressed before this court on the issue whether the Competition Commission of India would be empowered to direct the respondent to refund the amount if paid by the petitioner to the respondent under the impugned award in the event of the Competition Commission of India rendering any finding against the respondent and in favour of the petitioner about the validity of the 2015 SLA or not. Section 2(e) defines "Commission" i.e. Commission means the Competition Commission of India established under sub- section(1) of section 7. Section (3) deals with 'anti-competitive ....
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....o civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission or the Appellate Tribunal is empowered by or under the said Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the said Act. 245. The question that arises for consideration of this court is whether section 61 of the Competition Act would exclude the jurisdiction of the Arbitral Tribunal in entertaining monetary claim arising out of the 2015 SLA though CCI has no jurisdiction to entertain any such monetary claim made by one party against another party to the SLA under the provisions of the Competition Act or not. 246. A perusal of the record clearly indicates that it is not in dispute that the parties had agreed to amend 2004 SLA after detailed negotiations and fixed a trait value of Rs. 150/- per packet of BG-I cotton seeds costing Rs. 750/- per packet for the period 2006-08 onwards and Rs. 266/- per packet of BG-II cotton seeds costing Rs. 950/- per packet for the period 2007-08 onwards. There are proceedings filed before the differ....
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.... ground that the same was contrary to any of the provisions of law is concerned, there is no dispute about such provisions of the said agreement. The petitioner however did not invoke the said provisions before making payment of Rs. 14 crores to the respondent under the said 2015 SLA. Be that as it may, issue as to whether the said SLA is in violation of the provisions of the Competition Act or not and requires any modification or not is the issue pending before the CCI. 251. In my view, Mr. Chagla, learned senior counsel for the respondent is right in his submission that Section 11 of the Andhra Pradesh Cotton Seeds (Regulation pf Supply Distribution, Sale and Fixation of Sale Price) Act, 2007 and Section 10 of the Maharashtra Cotton Seeds (Regulation of Supply, Distribution, Sale and Fixation of Sale Price) Act, 2009 does not empower the respective State Governments to fix trait value but empower to fix maximum sale price of the cotton planting seeds. There is no dispute between the parties that the purpose of such maximum selling price fixation was to secure the interest of farmers only. 252. Mr. Khambata, learned senior counsel for the petitioner did not dispute that one ....
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....ral tribunal or on the merit of the claim decided by the arbitral tribunal in the impugned award but addressed only on the issue of jurisdiction of the arbitral tribunal. 255. It was vehemently urged by the learned senior counsel for the petitioner that the monetary claims made by the respondent before the arbitral tribunal were not arbitrable. By a detailed order passed by the arbitral tribunal in the application filed by the petitioner under Section 16 of the Arbitration Act, the arbitral tribunal rightly rejected the said application. On the issue of arbitrability, the arbitral tribunal has recorded a detailed reason while dealing with Issue No.1 in the impugned arbitral award. Mr. Khambata, learned senior counsel for the petitioner could not dispute the existence of the arbitration agreement recorded in the said 2015 SLA. He also could not dispute that the arbitral tribunal was properly constituted. For deciding the issue of jurisdiction of the arbitral tribunal under Section 16 of the Arbitration Act, the arbitral tribunal has rightly applied the triple test : (1) whether there is in existence a valid arbitration agreement, (2) whether the arbitral tribunal is properly cons....
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....l tribunal ought to have dismissed the claims made by the respondent. There was no dispute about the existence of arbitration agreement or that the constitution of the arbitral tribunal was proper and there being no dispute on the quantification of the claim. 259. There is also no merit in the submission of the learned senior counsel for the petitioner that the arbitral tribunal ought to have suspended the arbitral proceedings in view of the pendency of the proceedings regarding validity of the said 2015 SLA before the CCI. The only provision which empowers the arbitral tribunal to suspend or to terminate the arbitral proceedings on the ground that none of the party paid his share in respect of his claim or counter claim, as the case may be, is found in Section 38(2) of the Arbitration Act. The legislative intent is thus clear that where the powers for suspension was to be provided, it was specifically inserted in the Act. No other provision for termination or suspension of the arbitral proceedings due to the situation contemplated therein, can be exercised. 260. In so far as reliance placed by the learned senior counsel on Section 9 of the Arbitration Act in support of the s....
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....r under sub-section (2) of section 53Q of the Act, and to pass an order for the recovery of compensation from any enterprise for any loss or damage shown to have been suffered, by the Central Government or a State Government or a local authority or any enterprise or any person as a result of any contravention of the provisions of Chapter II, having been committed by the enterprise. (2) Every application made under sub-section (1) shall be accompanied by the findings of the Commission, if any, and also be accompanied with such fees as may be prescribed. (3) The Appellate Tribunal may, after an inquiry made into the allegations mentioned in the application made under sub-section (1), pass an order directing the enterprise to make payment to the applicant, of the amount determined by it as realisable from the enterprise as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II having been committed by such enterprise: Provided that the Appellate Tribunal may obtain the recommendations of the Commission before passing an order of compensation. (4) Where any loss or damage referred to in sub....
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....arbitral proceedings before the CCI under the provisions of the Competition Act nor could refuse to deal with the monetary claims arising out of the 2015 SLA merely on the ground that the issue of validity of the 2015 SLA by the Central Government by filing a reference or in view of the information filed by the petitioner before the CCI under provisions of the Competition Act is pending before the CCI. Even if the amount awarded by the arbitral tribunal in the impugned award is paid by the petitioner to the respondent thereby implementing the impugned arbitral award, if the CCI comes to the conclusion in the pending proceedings that the said 2015 SLA is in violation of the provisions of the Competition Act, 2002, based on such finding of the CCI or the order of the Appellate Tribunal in an appeal against any finding of the CCI or under Section 42 A or Section 53Q (2) of the Act, the petitioner in that event, would entitled to seek claim for compensation against the respondent including the amount paid, if any, by the petitioner by implementing the impugned arbitral award. 266. Mr. Khambata, learned senior counsel for the petitioner in Commercial Arbitration Petition No.737 of 20....
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.... 269. In so far as the reliance placed by the learned senior counsel on Section 61 of the Competition Act in support of the submission that the powers of the Civil Court or the arbitral tribunal, as the case may be, are excluded under the said provision to determine any matter which the CCI or the Appellate Tribunal is empowered to determine under the provision of the Competition Act is concerned, in my view, reliance placed on the said provision to exclude the powers of the arbitral tribunal to decide the monetary claim in this case is totally misplaced. The arbitral tribunal cannot decide the issue whether the said 2015 SLA was anti-competitive or was in violation of Section 3 of the Competition Act or not and deserves to be declared as void or required modification but has power to award monetary claim under such agreement. 270. The powers of the arbitral tribunal and the powers of the CCI are different and are not overlapping. In this case, the arbitral tribunal has not decided the issue as to whether the said 2015 SLA entered into between the parties was anti-competitive or not or whether the said 2015 SLA is in breach of any of the provision of the Competition Act or not ....
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....the existence of jurisdictional facts. 273. The arbitral tribunal in this case has not encroached upon the powers of the CCI though such issues were raised by the petitioner. In my view, if the arbitral tribunal would have rendered a finding one way or the other on the issue nos.3(a) to 3(f) as formulated based on the pleadings filed by the respondent, that would have amounted to the arbitral tribunal exceeding its jurisdiction and would have been in violation of Section 61 of the Competition Act and not otherwise. The decision of the arbitral tribunal awarding the monetary claims made by the respondent under the said 2015 SLA would not amount to the arbitral tribunal wrongly assuming the existence of jurisdictional facts. The arbitral tribunal is empowered to exercise powers in view of the existence of arbitration agreement and to find out whether the claims made before it are arbitrable or not. Such exercise would not amount to assuming the existence of the jurisdiction facts. 274. Reliance placed by the learned senior counsel on Section 10 of the Specific Relief Act, 1963 in support of the submission that the said 2015 SLA itself being not enforceable in law could not have....
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....Court. The said petition was disposed of by the Delhi High Court in view of the said arbitration petition having become infructuous by recording a statement made by the petitioner that the petitioner had agreed to pay the amount claimed in the termination notice dated 19th November, 2009. 278. Supreme Court in case of Indian Farmers Fertiziler Cooperative Limited (supra) has held that the arbitral tribunal may rule on its own jurisdiction under Section 16(1) which makes it clear that it refers to whether the arbitral tribunal may embark upon an enquiry into the issues raised by the parties to the dispute. The Supreme Court held that kompetenz principle, which is also followed by the English Arbitration Act, 1996 is that the "jurisdiction" mentioned in Section 16 refers to three things (i) as to whether there is an existence of a valid arbitration agreement, (ii) whether the arbitral tribunal is properly constituted and (iii) matters submitted to arbitration should be in accordance with the arbitration agreement. In the said judgment, Supreme Court held that the Court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide righ....
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....the Court, an examination of the scheme of the Particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions set out in the said judgment would apply. 281. Supreme Court in case of Abdulla Bin Ali and Ors. (supra) has held that there is no denying the fact that the allegations made in the plaint decide the forum. The jurisdiction does not dependent upon the defence taken by the defendants in the written statement. It is evident that the Supreme Court by reading of the plaint as a whole came to the conclusion that the plaintiffs had filed a suit giving rise to the appeal treating the defendants as tresspassers as they had denied the title of the plaintiff. It is held that a suit against the tresspasser would lie only in the Civil Court and not in the Revenue Court. In paragraph 7 of the said judgment, it is held that on the allegations made in the plaint the suit was cognizable by the Civil Court and that the High Court had erred in law in non-suiting the plaintiffs on the grou....
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....e of Dinesh Jaya Poojary (supra) relied upon by the learned senior counsel for the petitioner is concerned, in the facts of those judgments, it was held that the claims made by the claimant were not arbitrable. In this case, the learned senior counsel for the petitioner could not satisfy this Court as to how the monetary claims made by the respondent under 2015 SLA were not arbitrable. Learned Senior Counsel could not dispute that the monetary claims made by the respondent could not have been considered by the CCI. The aforesaid three judgments thus relied upon by the learned senior counsel for the petitioner would not assist the case of the petitioner and are clearly distinguishable in the facts of this case. 285. Delhi High Court in case of M/s. Shoes East Limited (supra) while dealing with the provisions of Securities and Exchange Board of India Act, 1992 held that there was no question of bar of jurisdiction of Civil Court in a suit for recovery where the company seeks to invoke a contractual obligation against the person who promises to bring a particular amount of subscription but fails to do so. It is held that there is no provision in the SEBI Act or its regulation for a....
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....he Civil Court to entertain a suit or proceedings in relation to any such question cannot be said to be barred. The principles of law laid down by the Supreme Court in case of Ramesh Gobindram (supra) squarely applies to the facts of this case. I am respectfully bound by the said judgment. 288. Arbitral Tribunal in this case has only allowed the monetary claim made by the respondent by seeking enforcement of a contractual obligation which claim could not have been entertained or adjudicated upon by the CCI. The powers of CCI as well as the arbitral tribunal are different and not overlapping. A perusal of the provisions of the Competition Act clearly indicates that the scheme of the said Act does not contemplate a machinery for seeking relief under a contract. The purpose of the proceedings filed by the parties before the CCI is different and distinct from the recovery proceedings filed by a party to agreement for seeking enforcement of a contractual obligation. The CCI cannot decide the monetary claim made by the respondent and at the same time, the arbitral tribunal cannot decide the issue whether the 2015 SLA was void being allegedly violative of Section 3 and other provisions....
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.... the Civil Court is sought to be ousted under the said statute, it is only in respect of those reliefs which could be granted by the special tribunal under the special statute, a jurisdiction of the Civil Court can be said to be ousted. Supreme Court accordingly held that already the Civil Court had jurisdiction to entertain the suit for partition and not the authorities under the Karnataka Land Reforms Act. The principles of law laid down by the Supreme Court would applies to the facts of this case. I am respectfully bound by the said judgment. 292. Supreme Court in case of Girnar Traders (supra) has held that for an Act to be "self contained code" it is required to be shown that it is a complete legislation for the purpose for which it is enacted. The provisions of the enactment in question should provide for a complete machinery to deal with various promises that may arise during its execution. Sufficient powers should be vested in the authority/forum created under the Act to ensure effectual and complete implementation of the Act. There should be complete and coherent scheme of the statutory provisions for attainment of the object and purpose of the Act. It essentially shoul....
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....i High Court by order dated 29th February, 2016 directed that no final order shall be passed by the CCI in that matter and any interim order under section 33 shall not be given effect to without the leave of the Delhi High Court. The said writ petition is still pending before the Delhi High Court. 296. A perusal of section 26(1) of the Competition Act clearly indicates that the directions issued by the CCI under the said provision while conducting an enquiry under section 19 to the Director General to cause an investigation into the matter is an administrative direction and is not an order on adjudication. Any such order passed under section 26(1) does not determine any right or obligation of the party or does not entail any civil consequences. The judgment of Supreme Court in case of CCI v/s. SAIL, (supra) and the judgment of this Court in case of Vision Millenium Exports Private Limited (supra) would clearly assist the case of the respondent. The principles of law laid down by the Supreme Court and this court in these cases are applicable to the facts of this case. I am respectfully bound by the said judgments. 297. In my view the order dated 13th April, 2016 passed by the ....
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....rties to make submission, but only statements are recorded and materials considered. No evidentiary value could be attached to the said report of the Director General of CCI. In my view, the reliance placed by the learned senior counsel for the petitioner on the preliminary report submitted by the Director General under section 26 of the Competition Act before the CCI cannot be relied upon as a piece of evidence before the arbitral tribunal or this Court. 300. A perusal of the ground (A) raised by the petitioner in the said arbitration petition clearly indicates that the petitioner itself has admitted that the issue regarding the validity of the 2015 SLA under the Competition Act was not capable of being adjudicated upon by the arbitral tribunal and was to be exclusively adjudicated upon by the CCI. Similar ground is also raised by the petitioner in ground (F) of the petition. In my view, the petitioner thus cannot be allowed to now urge across the bar that the arbitral tribunal ought to have rendered decision/conclusion of those issues framed under paragraphs 3(A) to 3(F). This submission made by the learned senior counsel for the petitioner across the bar is contrary to the gr....
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....orum to approach for recovery of its contractual dues. The respondent is not required to wait till the outcome of the CCI proceedings and if would have waited, the claim of the respondent would have become barred by law of limitation. In my view, Mr. Chagla, Mr. Dwarkadas and Mr. Samdhani, learned senior counsels for the respondent are right in their submission that amongst several remedies available to the petitioner, the petitioner would be able to invoke the provisions of section 53N of the Competition Act and can seek refund of the amount paid under the award as compensation to the respondent if the CCI holds the said 2015 SLA as void. Since the petitioner is not rendered without any remedy even if payment of the awarded amount by the arbitral tribunal to the respondent is made and thus the principles of res-judicata cannot stand in this situation. The arbitral tribunal has determined all the issues which could be exclusively determined only by the arbitral tribunal and within its jurisdiction and rightly did not determine the issues under the Competition Act and has kept all those issues and rights and remedies available to the petitioner under the Competition Act open. The ju....
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....early provides for the circumstances in which the mandate of the arbitrator shall stand terminated. Section 25 of the Act provides as to when the arbitral tribunal shall terminate the proceedings. Section 32 of the Act also provides as to when the arbitral proceedings shall be terminated by the arbitral tribunal. None of the circumstances set out in the aforesaid three provisions were applicable to the facts of this case nor it was the case of the petitioner that the arbitral tribunal could have terminated the proceedings under any of those provisions. 307. Insofar as the submission of the learned senior counsel for the petitioner that the proceedings could have been suspended by the arbitral tribunal is concerned, a perusal of 2nd proviso of section 38(2) of the Arbitration Act clearly indicates the legislative intent that the arbitral tribunal may suspend or terminate the arbitral proceedings if one party does not pay the share of deposit of the other party with the arbitral tribunal in respect of the claim or the counter claim as the case may be. It is clear that only in the specific circumstances set out under the provisions of the said Act, the legislature wanted to empower....
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....the part of the petitioner. A perusal of the findings rendered by the arbitral tribunal in paragraphs 159 and 161 of the impugned award clearly indicates that it has been rightly recorded by the arbitral tribunal that the claims made by the respondent were not based on the patent right. The petitioner has not even challenged the said finding recorded in paragraph 161 of the arbitral award in this petition. 311. Insofar as the submission of the learned senior counsel for the petitioner that the said 2015 SLA is contrary to section 26 read with section 92 of the PPVFR Act is concerned, a perusal of the impugned award clearly indicates that the arbitral tribunal has rendered a finding of fact that the petitioner did not possess any certificate of registration under section 24 of the said PPVFR Act prior to the date of termination of the said 2015 SLA which is a mandatory precondition for invoking section 26 of the said Act. In my view, since the provision of the said PPVFR Act is not triggered, the submission of the learned senior counsel for the petitioner is academic and thus deserves to be rejected on that ground itself. 312. Be that as it may, it is an undisputed position th....
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....ndicate that the arguments advanced by the parties were already concluded between the parties before the arbitral tribunal. The arbitral tribunal thus rightly did not fix the matter again for hearing. Be that as it may, no prejudice of any nature is caused to the petitioner on that ground. The alleged concession made by the learned senior counsel on behalf of the respondent before the Supreme Court will have to be read in context and was specifically qualified by the phrase "at this stage" which would mean at 'interim stage' only. The said concession has to be read in the context of the post termination period when the CSPCO was in force and was being observed by the parties. The petitioner had sold 7,39,818 seeds packets containing the technology of the respondent during the period 1st April, 2015 to 14th November, 2015 and received an aggregate amount of Rs. 740 crores approximately from the farmers/consumers. The arbitral tribunal however has allowed only the claim of Rs. 117.46 crores with interest which the petitioner had contractually agreed to pay to the respondent under the said 2015 SLA. In my view, Mr. Chagla, learned senior counsel for the respondent is right in ....
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....case and would not assist the case of the petitioner. 317. Similarly, judgment of Supreme Court in case of A. Ayyaswamy (supra) is also not applicable to the facts of this case. There were no serious allegations of fraud made by the defendant in that matter against the applicant in the application filed under Section 8 of the Arbitration Act and had contended that such allegations of fraud could not be adjudicated by the arbitral tribunal. In that context, the Supreme Court held that since the claims raised by the claimant did not involve serious allegations of fraud, those claims were arbitrable. In my view, the said judgment would not assist the case of the petitioner but would assist the case of the respondent. 318. In so far as the judgment of Supreme Court in case of Emaar MGF Land Ltd. (supra) relied upon by the learned senior counsel for the petitioner is concerned, a perusal of the said judgment clearly indicates that the Supreme Court in the said judgment did not hold that the consumer disputes are non-arbitrable. It is held by the Supreme Court in the said judgment that Section 3(2) of the Consumer Protection Act does not contain any definition but contain a general....
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....ase, the respondent has invoked the arbitration agreement for recovery of its monetary claim whereas the petitioner has filed information before the CCI for various other reliefs. 322. I am not inclined to accept the submission of the learned senior counsel for the petitioner that the respondent ought to have waited for indefinite period till those proceedings before CCI were first disposed of and only depending upon the outcome of those proceedings, the respondent could have filed arbitral proceedings for recovery of monetary claim. In my view, the contractual reliefs are within the domain of the arbitral tribunal and on the other hand issue whether any violation of the provisions of Competition Act including Section 3 thereof has been committed or not are within the exclusive domain of CCI. 323. The judgment of Supreme Court in case of Arun Kumar and Ors. (supra) relied upon by the learned senior counsel for the petitioner is distinguishable on the ground that the facts before the Supreme Court in the said judgment were totally different and are not applicable to the facts of this case at all. In my view, the issue of the alleged invalidity of a contract or violation of Com....
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....mortgage which was an action in rem and accordingly had held that the said claim was not arbitrable. However, in this case, the claim for recovery of the balance amount of trait fees filed by the respondent was for enforcement of the contractual rights and was an action in personam and not action in rem. Paragraph 38 of the said judgment on the contrary holds that the disputes relating to subordinate rights in personam arising from rights in rem have always been considered to be arbitrable. 328. In my view, judgment of this Court in case of Sundrabai Sitaram (supra) is distinguishable on the ground that in the said judgment this Court had held that the contract in question was void as it was prohibited by the Bombay District Police Act. In this case, the CCI has not declared the said 2015 SLA to be void so far. It is also not held by the CCI till date that the said 2015 SLA is forbidden by any law. It is also not the case of the petitioner before the said CCI that the said 2015 SLA is forbidden by law. 329. The judgment of this Court in case of M3NERGY SDN. BHD. (supra) relied upon by the learned senior counsel for the petitioner has been already set aside by a Division Bench....
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....oner receiving no benefit under the said Act did not arise. The judgment of Supreme Court in case of Vishnu Pratap Sugar Works (supra) relied upon by the learned senior counsel for the petitioner is also distinguishable on the ground that the petitioner has not challenged the findings of the arbitral tribunal on waiver in arbitration petition. 332. In so far as the reliance placed on Section 2(4) of the Contract Act and Section 10 of the Specific Relief Act, 1963 by the learned senior counsel for the petitioner in support of the submission that the claims made by the respondent for recovery of the amount was depending upon the validity and enforceability of the said 2015 SLA is concerned, in my view there is no merit in this submission. CCI was admittedly not empowered to consider and grant any monetary claim filed for enforcement of contractual dues. In so far as the judgment of Supreme Court in case of Vallabhdas (supra) relied upon by the Mr. Khambata, learned senior counsel for the petitioner in his rejoinder arguments is concerned, learned senior counsel could not demonstrate even before this Court as to how there was no jural relationship between the petitioner and the res....
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....ration Act or any other ground under Section 34 of the Act. 336. In so far as the reliance placed by the learned senior counsel for the petitioner on the judgment of Supreme Court in case of Man Roland Druckimachinen AG (supra) in support of the submission that the issue of jurisdiction can be taken away by way of demurrer or at the time of trial is concerned, a perusal of the record clearly indicates that the arbitral tribunal in this case has not decided the issue of jurisdiction under Section 16 of the Arbitration Act immediately on demurrer but had postponed the said issue and decided the same finally in the impugned award on the basis of the averments made in the statement of claim and the written statement as well as in application under Section 16 of the Arbitration Act. Learned senior counsel could not distinguish the judgment of Supreme Court in case of Indian Farmers Fertiziler Cooperative Limited (supra). The principles laid down by the Supreme Court in the said judgment applies to the facts of this case. 337. In so far as the reliance placed by the learned senior counsel for the petitioner on the judgment of Supreme Court in case of Garware Wall Ropes Ltd. (supra)....
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.... realized, at the time of entering into the agreement or signing of the document, that they were suffering from any such mistake and had, acted bonafide on such agreement. 341. It is held by the Supreme Court that the agreement in such a case would be void from its inception though discovered to be so at a much later stage. It is not the case of the petitioner that it was suffering from a mistake of fact from the very beginning and realized such mistake of fact at the later stage. Learned senior counsel could not distinguish the judgment of Supreme Court in case of Piloo Dhuinshaw Sidhwa (supra). Supreme Court in the said judgment has considered the issue whether the party who has carried out the work and when no terms and conditions of contract were arrived at was entitled to recover the amount on the basis of quantum meruit. 342. The judgment of Supreme Court in case of Hansraj Gupta & Co. (supra) has held that Section 70 of the Contract Act enables the person who actually supplies goods or renders some services, not intending to do so gratuitously, to claim compensation from the person who enjoys the benefit of supply made or services rendered. It is a liability which aris....
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....is submission that arbitral tribunal cannot exercise powers to suspend the proceedings for non-compliance of the order passed under Section 17. 345. Delhi High Court in case of Shree Tirupathi Udyog (supra) has held that a reading of Section 17 of the Arbitration Act will clearly show that the interim measures provided for in Section 17 of the Act relates to the protection of the property or the amount in dispute in the arbitration proceedings and not to the arbitration proceedings itself. There is no provision in the Arbitration Act which provides for the stay of the arbitration proceedings upon its commencement. Delhi High Court in the said judgment has held that the sole arbitrator was right in dismissing the application filed by the appellant seeking stay of the arbitral proceedings till the final disposal of the arbitral proceedings between the respondent and the another party was pending before another arbitrator and the criminal investigation that had been lodged against the petitioner was disposed off. In my view, the principles laid down by the Delhi High Court in the said judgment which has considered the amendment to Section 17 inserted by Arbitration and Conciliation....
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....shamlet de" and by clever drafting had sought to confer jurisdiction on the Civil Court. In this case, the claim of the respondent was for enforcement of the contractual obligation and for recovery of the balance amount of trait fees. 349. A perusal of the award clearly indicates that the arbitral tribunal has rightly allowed the monetary claims made by the respondent after considering the pleadings, evidence, oral and written arguments advanced by the parties. In so far as the merit of the claim is concerned, the petitioner did not raise any dispute on the quantification nor agitated any submission across the bar while arguing the arbitration petition at length before this Court. None of the findings rendered by the arbitral tribunal shows any perversity or any patent illegality in the impugned award. Mr. Chagla, learned senior counsel for the respondent rightly placed reliance on the judgment of Supreme Court in case of Ssangyong Engineering & Construction Co. Ltd. (supra), in case of McDermott International Inc (supra) in support of his submission that the scope of challenge of an arbitral award under Section 34 of the Arbitration Act is limited. The principles of law laid do....
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....der the provisions of the Competition Act or the Contract Act. In view of the fact that CCI has not declared the said 2015 SLA as void or anti-competitive or that the respondent had abused its dominant position, the said 2015 SLA was presumed to be valid. 353. Learned senior counsel for the petitioner could not dispute that the petitioner had filed an interim application before CCI under Section 33 of the Competition Act inter-alia praying for an injunction against the respondent not to terminate the said 2015 SLA and had infact applied for enforcement of the said 2015 SLA. The petitioner did not challenge the validity of the said 2015 SLA as void and prayed that the respondent shall not terminate the said 2015 SLA. Learned counsel for the petitioner could not dispute the correctness of this argument advanced by the learned senior counsel for the respondent. The Commercial Arbitration Petition No. 738 of 2019 thus deserves to be dismissed. REASONS AND CONCLUSIONS IN COMMERCIAL ARBITRATION PETITION NO. 892 OF 2019 :- 354. The facts and the legal submissions made by the parties in this case are also identical to the facts and legal submissions in Commercial Arbitration Petit....
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....r finality had been presently arrived at. The pendency of the proceedings before CCI thus would not oust the jurisdiction of the arbitral tribunal. It is rightly held that the issues before the CCI and before the arbitral tribunal were substantially disparate and different, operating in different fields and orbits. The purpose of two Acts are different. 358. Mr. Seervai, learned senior counsel for the petitioner strenuously urged that the finding of the arbitral tribunal that there were no pending proceedings before the CCI was factually incorrect. In my view, the said observation of the learned arbitrator cannot be read in isolation. The Court has to read the entire award and to find out whether the petitioner has made out any ground for setting aside the award under Section 34 of the Arbitration Act. An isolated observation in the award even if based on a factual error which has ultimate no barring on the outcome of the impugned award has to be ignored. 359. The learned arbitrator in this case also has rightly held that he was not considering or adjudicating any dispute relating to competition laws, all disputes relating to rights in personam are amenable to arbitration whi....
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.... the 2015 SLA as void being not barred. Similarly, judgment of Supreme Court in case of Booz Allen Hamilton Inc. (supra) pressed in service by the learned senior counsel for the petitioner also would not assist the case of the petitioner. 362. In so far as the judgment of this Court in case of Kingfisher Airlines Ltd. (supra) relied upon by the learned senior counsel for the petitioner is concerned, the said judgment would not assist the case of the petitioner. There is no merit in the submission of the learned senior counsel for the petitioner that the finding of the learned arbitrator in paragraph 58 of the impugned award or in any other paragraph shows any patent illegality or perversity. The powers of CCI under Sections 19(1), 27(d) or under various other provisions of the Competition Act are not in dispute. At the same time, the fact that the CCI does not have power or jurisdiction to award monetary claims as made by the respondent before the arbitral tribunal for enforcement of the contractual obligation under 2015 SLA also has to be kept in mind. In so far as the submission of the learned senior counsel for the petitioner that the cause of action could not be bifurcated i....