1 arbap135-07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO.135 OF 2007 Rajesh V. Choudhary ....Applicant versus Kshitij R. Torak & Ors. ....Respondents Mr.Zal Andhyrujina i/b Mr.G.B. Kedia for the Applicant. Mr.Bakul Bhosale i/b Mr.B.H. Vyas for the Respondents. CORAM : S.J. VAZIFDAR, J. DATE : 6TH AUGUST, 2010. ORAL JUDGMENT :- 1. This is an application under section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of an arbitrator. 2. The question that arises for consideration in this application is whether a party is entitled to enforce an arbitration agreement contained in a clause in an agreement the very existence of which it denies, which it claims the parties had never entered into and was never acted upon by the parties thereto. I have answered the question in the negative. 3(A). The applicants case always has been and is to date that the parties had entered into an agreement dated 29th September 1995 whereunder the respondents had agreed to sell to the applicant a larger property on the terms and conditions contained therein. (B). In the year 1999 the petitioner filed Suit No. 1163 of 1999 in 2 arbap135-07 this Court of specific performance of this agreement. (C). The respondents filed Notice of Motion No. 1925 of 2001 for relief under section 8 of the said Act. In the affidavit in support of this notice of motion the respondents submitted that the parties had actually entered into an altogether different agreement also dated 20th September 1995 for the sale of only 1/5th of the undivided interest in the property on the terms and conditions contained therein. Clause 15 of this agreement contains an arbitration agreement. It is this clause 15 that is invoked by the applicant in the present application. The applicant has not in the present application, invoked the arbitration clause in the agreement which he claims the parties had entered into and in respect whereof he had filed the said suit for specific performance. 4. Thus the applicant's case was that the parties had entered into an agreement dated 20th September 1995 for the purchase by him from the respondents of a larger piece of land whereas the respondents case was that there was another agreement also dated 20th September 1995 for the sale of only a 1/ 5th undivided share in the property to the applicant. 5. For the purpose of this application it is important to note the applicant's case in his reply to this Notice of Motion, regarding the agreement relied upon by the respondents. As this judgement turns almost entirely on what the applicant has stated about the agreement relied upon by the respondents I must in fairness to him let his affidavit speak for itself. In the affidavit in reply dated 14th June 2002 the applicant stated :- "3. Without prejudice to the aforesaid, I repeat and confirm that the agreement for sale dated 20th September, 1995 annexed to the plaint was the only 3 arbap135-07 agreement which was executed between the parties, and I have filed the suit of a specific performance of the said agreement for the reasons and narrations set out in the plaint. I say and submit that the alleged agreement dated 20 th September 1995 annexed to the affidavit in support of the present Notice of Motion was cancelled and destroyed by mutual consent of the parties, and only thereafter the suit agreement Exhibit “B” to the Plaint was executed and acted upon and in pursuance thereto I have discharged my obligations………….. 4. Without prejudice to the aforesaid, I say and submit that after service of the present Notice of Motion my Advocate called upon the Defendants for giving inspection of the agreement annexed to the affidavit in support. I say that while taking inspection of the said agreement in the office of the Advocate for the defendant, it is noticed that the agreement on which the defendants are seeking reliance 1st page is forged and secondly pages annexed to the said agreement are torned and the defendants have joined at the same. I say that the said agreement on which the defendants are seeking reliance is already destroyed and taking advantage of the torn paper lying with the Defendants la cethe (?) same are joined with the help of a cellotape. I call upon the defendants to produce before the Hon’ble Court the documents of which inspection was given, to support of my above contention as aforesaid. I say that it is a fit case where not only the present Notice of Motion be dismissed but necessary action for perjury under Sections 191 and 192 of the Indian Penal Code be initiated against the Defendants. 5. I further say and submit that the agreement on which reliance is placed and annexed to affidavit in support was destroyed by consent of the parties, therefore no reliance on the said agreement can be placed. 7………………………………… I say that the agreement on which the Defendants are seeking relief is already destroyed by consent of the parties and never acted upon." (emphasis supplied) I will complete the narration of facts before dealing with the effect of the stand taken by the applicant qua the agreement relied upon by the respondent in the above affidavit. 4 arbap135-07 6(A). Suit No. 1163 of 1999 filed the applicant was disposed of by an order dated 15th January 2004. The order recorded that by consent of both the parties the dispute in the suit was referred to the arbitration of a sole arbitrator. By an order also dated 15th January 2004 the learned judge observed that in view of the order passed in the suit the respondents Notice of Motion No.1925 of 2001 under section 8 of the Act did not survive and accordingly disposed of the same. (B). Mr.Andhyrujina contended that by the said orders only the disputes in the suit and not those raised in the Notice of Motion were referred to arbitration. I will for the purpose of this order proceed on that basis. (C). During the pendency of the arbitration proceedings the applicant by a letter dated 20th March 2007 addressed to the respondents invoked the arbitration clause in the agreement relied upon by the respondents. The applicant stated that the invocation was without prejudice to the rights and contentions in the ongoing arbitration proceedings pending before the learned arbitrator. 7(A). The learned arbitrator made and published his award dated 7th January 2010. The applicant's claim was rejected. Mr.Andhyrujina submitted that the award was based solely on the fact that the applicant had failed to prove the agreement dated 20th September 1995 propounded by him. For the purpose of this order will assume that to be so. I will also assume that in the evidence the respondents contended that the amounts paid by the applicant were 5 arbap135-07 adjusted towards the agreement relied upon by them. (B). It is important to note that the applicant has challenged the award in this Court by filing a petition under section 34 of the said Act. He therefore maintains the stand taken by him in the said affidavit as regards the said agreements. 8. The applicant therefore seeks to invoke the arbitration clause in an agreement which according to him was not executed between the parties, was never acted upon by them, was cancelled and destroyed by mutual consent of the parties, was forged and tampered with and cannot be relied upon. 9. It is of vital importance to note that it is not the applicant's case that the agreement relied upon by the respondents was validly entered into and binding between the parties at one stage but that as a result of the agreement subsequently entered into on the same day and relied upon by him, it stood novated. The applicant's case is that the agreement relied upon by the respondents was not only never executed between the parties but was also never acted upon. Thus the applicant can derive no support from the authorities which deal with cases which consider whether the plaintiff is entitled to rely upon the original cause of action. On the applicant's case itself there was no original cause of action which he can fall back on as a result of the agreement relied upon by him having been held to be not proved. 10. A valid arbitration agreement, as the expression itself suggests, must be consensual. Both the parties must agree to refer to arbitration the disputes which have arisen or which may arise between them. Sections 2 6 arbap135-07 and 7(1) and (2) of the said Act which establish this read as under :- “2. Definitions.— (1) In this Part, unless the context otherwise requires,— (a) ............................................................................. (b) “arbitration agreement” means an agreement referred to in Section 7; 7. Arbitration agreement.—(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.” 11. The stand taken by the applicant in the said affidavit negates the existence of the agreement in its entirety. In other words it is not his case that the arbitration clause contained therein was separate, to wit separately entered into. Moreover the applicant's case is that the agreement was never to be acted upon. It is axiomatic then that the applicant's case was and is that the arbitration clause contained therein never existed and was also never to be acted upon. The applicant's case itself therefore is that there was no arbitration agreement within the meaning of that expression in the said Act including sections 2 (b) and 7 thereof. It is pertinent to note again that the applicant maintains this stand as is evidenced by the fact that he has challenged the award under section 34 of the said Act. 7 arbap135-07 12. The sine qua non of an application under section 8 or section 11 of the said Act is the existence of an arbitration agreement. In order to succeed in such an application the applicant must establish the existence of a valid arbitration agreement. If the applicant himself alleges that there is no arbitration agreement he cannot possibly seek a reference of the disputes between himself and another to arbitration. I cannot see by what process of reasoning this position can be altered merely because the respondents contend that there is such an agreement. 13. Nor would it make any difference that the respondents would be entitled to maintain an application under section 8 or section 11 of the said Act. The respondents affirm the existence of the agreement. Their application to enforce the clause therein containing an arbitration agreement is in consonance with the provisions of sections 2 and 7 of the Act. 14. An application such as this is no different from one where a reference to arbitration is sought though there is admittedly no agreement to refer disputes in respect of a legal relationship to arbitration. The only difference in such applications is that in the latter both the parties contend that there is no arbitration agreement. 15. A view to the contrary would lead to an absurd result. It would result in the court compelling the parties to refer their disputes to arbitration at the instance of a party who expressly states that there was and is no arbitration agreement between himself and the other. 16. The application is dismissed. There shall however be no orders to costs.