Indiabulls Asset Reconstruction Company Ltd. Vs. Ram Kishore Arora and Ors. – Supreme Court
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In this case, Appellant herein entered into two license agreements with R1 and the sister concern of R1. Thereafter, a tripartite agreement was executed by and amongst the Appellant, R1 and Bank of Baroda. The appellant agreed to create first charge on fixed assets, which was to be released only with the consent of R1. On dispute, the Appellant served a notice on R1 under Section 21 of the Arbitration and Conciliation Act, 1996 invoking the provision for arbitration contained in the licence agreement. The Commercial Court at Ahmedabad, in the order dated 13.12.2017, rejected the application of the Appellant under Section 8 of the Act of 1996. It was held that there was no arbitration clause in the tripartite agreement and no reference had been made to the original or supplementary licence agreement to give effect or consider the arbitration clause as a part and parcel of the tripartite agreement. In appeal, the decision of the Commercial Court was upheld by the High Court.
On the matter in Apex Court, Hon’ble Supreme Court held that (i) Except the principal agreement dated 07.04.2005, none of the other agreements contained any arbitration clause, even if they related to the same property and also involved the Appellant and the R1.
(ii) In the frame of the suit and various other reliefs claimed, involving subsequent purchasers too and the allegations of fraud, the dispute cannot be said to be arbitrable at all. The present one cannot be said to be a case involving any “doubt” about non-existence of arbitration agreement in relation to the dispute in question.
(iii) Even if by reference to remote pedigree, the original licence agreement is said to be the genesis of the contractual relations of the appellant and the R1, that does not ipso facto lead to the availability of the arbitration agreement in relation to the dispute in question, which emanates from the tripartite agreement and which cannot be determined without reference to the said tripartite agreement and without involving all the parties thereto.
(iv) The other elements of dispute pertaining to the subsequent purchasers too cannot be resolved in any forum without reference to the tripartite agreement and its amended clause, which did not provide for arbitration.
(v) The other memo by R3 to 5 had been of no effect whatsoever. Consent of the said respondents, the subsequent purchasers, for reference to arbitration could not have infused an arbitration clause in the tripartite agreement and their memo could not have propelled the matter to arbitration, particularly looking to the core of the dispute and its obvious non-arbitrability for the reason that it related to the tripartite agreement.
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Hon’ble Supreme Court held that the contention that the non obstante clause in Section 142(1) of the Act of 1881 would override Section 406 Cr.P.C. and that it would not be permissible for this Court to transfer the said complaint cases, in exercise of power thereunder, cannot be countenanced. It may be noted that the non obstante clause was there in the original Section 142 itself and was not introduced by way of the amendments in the year 2015, along with Section 142(2). The said clause merely has reference to the manner in which cognizance is to be taken in offences under Section 138 of the Act of 1881, as a departure has to be made from the usual procedure inasmuch as prosecution for the said offence stands postponed despite commission of the offence bein complete upon dishonour of the cheque and it must necessarily be in terms of the procedure prescribed. The clause, therefore, has to be read and understood in the context and for the purpose it is used and it does not lend itself to the interpretation that Section 406 Cr.P.C. would stand excluded vis-à-vis offences under Section 138 of the Act of 1881.
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