1 ARBP1389/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.1389 OF 2010 Zeba Home Pvt.Ltd. ...Petitioners v/s M/s D.M. Fabrics (India) ...Respondents Mr Atul Daga i/b M/s Mulani and Co. for Petitioners. None for Respondents. CORAM : D.K.DESHMUKH J. DATE : 16TH JUNE 2011. 2 ARBP1389/10 P.C. :- 1] By this petition, the petitioners challenge the award made by the Hindustan Chamber of Commerce. Admittedly, the petitioners did not appear before the Arbitral Tribunal. All that the petitioners did was they addressed a letter to the Manager, Hindustan Chamber of Commerce wherein they have stated that they are not member of the Association and therefore, they are not obliged to respond to the arbitration proceedings. It was also claimed that arbitration clause is not a part of the transaction. The Arbitrators have dealt with that and have held that in the invoice produced by the plaintiffs there is an arbitration clause. The learned counsel appearing for petitioners, relying on the judgment of the Division Bench of this Court in the case of M/s Divya Shivlaks Impex v/s Shantilal Jamnadas Textiles (P) Ltd., reported in 1999(2) Bom.C.R. 734, submits that an arbitration clause in the invoice does not constitute an arbitration clause in the transaction. The 3 ARBP1389/10 submission is not well founded. It cannot be said that in all cases, arbitration clause contained in invoice does not amount to arbitration clause in the transaction. It depends on facts and circumstances of each case and at the point of time at which the invoice has been issued. If the petitioners wanted to contend that there is no arbitration clause, it was for them to appear before the Arbitral Tribunal and establish their case. Merely by sending a letter to the Secretary, Hindustan Chamber of Commerce without appearing before the Arbitral Tribunal, such contention cannot be raised. If one sees the scheme of the Arbitration Act, it becomes clear that the method of raising objection to the jurisdiction of the Arbitrator is to appear before the Arbitrator and raise objection to the jurisdiction in reply to the statement of claim. The question whether the Arbitrator has jurisdiction or not would arise on seeing what is claimed in the statement of claim. The statement of claim, as per the scheme of the Act, is filed before the Arbitrator by the claimant after the parties appear 4 ARBP1389/10 before the Arbitrator. In the present case, the petitioners never appeared before the Arbitrator. Therefore, there is no question of the Arbitrator deciding an objection raised by the petitioners to his jurisdiction. If the petitioners challenge to the award made by Arbitrator, at the instance of litigants, who did not care to even appear before the Arbitrator is entertained, the very purpose of the scheme of the Act would be frustrated. In my opinion, therefore, considering the extremely limited jurisdiction of this Court under section 34 of the Act to disturb the award of the Arbitral Tribunal, this petition cannot be entertained. It is rejected. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH )