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CASE NO.: Arbitration Petition  25 of 2005

PETITIONER: Rodemadan India Limited

RESPONDENT: International Trade Expo Centre Limited

DATE OF JUDGMENT: 17/04/2006

BENCH: B.N. Srikrishna

JUDGMENT: J U D G M E N T

B.N Srikrishna, J.

                This is an application under Section 11(6) of the Arbitration and  Conciliation Act, 1996 (hereinafter referred to as "the Act") for appointment  of a Presiding Arbitrator/ Chairperson of the Arbitral Tribunal under the  arbitration agreement. It has been placed before me as the person designated  by the Chief Justice to act under Section 11(6) of the Act.

       The Respondent-Company has a lease of the land situated at Plot No.  A-11, Sector-62, Noida from the New Okhla Industrial Development  Authority for a period of ninety years. The Respondent wanted to construct  and develop an Exhibition Centre on the said land. There were negotiations  between the Petitioner-Company and the Respondent-Company, as a result  of which an exclusive Management Agreement was arrived at on  29.10.2003. Under the said agreement, the Petitioner was granted the  exclusive right to manage the said plot of land for a period of ten years from  the date on which ’Vacant Possession’ was handed over to it. Certain other  terms as to payments were agreed to between the parties. Two clauses, 8.0  and 8.1 of the said agreement, which are of relevance, are as under: "8.0 In the event of breach of warranties by any of the parties  the other party can seek relief by way of specific performance  of the contract.

       8.1     Arbitration: Any dispute, controversy or claim arising out  of or in relation to this exclusive Management Agreement shall  be settled by a panel of three arbitrators (the "Arbitration  Panel") in accordance with the provisions of the Arbitration and  Conciliation Act, 1996. ITEC and Rodemadan shall appoint one  arbitrator each and such arbitrators shall, within seven days of  their appointment, designate a third person to act as the  chairman and the presiding arbitrator. The arbitral proceedings  shall take place in Delhi and shall be conducted in the English  language. Any such dispute, controversy or claim submitted for  arbitration shall be considered a commercial dispute arising  under the Arbitration and Conciliation Act, 1996. The award of  the Arbitration Panel shall be a reasoned one, and shall be final  and binding on the Parties."

       Certain disputes had arisen between the parties, as a result of which,  on 16.3.2005 the Petitioner filed an application under Section 9 of the Act  before the High Court of Delhi (OMP No. 98/2005) and obtained an order  directing the Respondent to maintain status quo with regard to the  possession and title of the said plot of land.

       On 8.4.2005, the Petitioner sent a legal notice to the Respondent

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invoking Clause 8.1 of the said agreement. By the said notice invoking  arbitration, the Petitioner appointed Dr. L.M. Singhvi, Senior Advocate, as  its nominee arbitrator in terms of the Management Agreement and requested  the Respondent to nominate its arbitrator in terms of the said clause within a  period of thirty days from the date of receipt of the notice. It was clarified in  the said notice that since the agreement provided for Indian Law as the  applicable law, an Indian jurist had been appointed. It was stated that this   would not be deemed or construed to be a waiver of the Petitioner’s right to  have the third or Presiding Arbitrator from a neutral country (i.e. other than  India and Cyprus), the arbitration invoked being an "International  Commercial Arbitration" within the meaning of Section 2(1)(f) of the Act.  On 4.5.2005, the Respondent replied to the said notice of the Petitioner,  raising several contentions, inter alia taking the stand that there was no  arbitration agreement in existence. Nonetheless, it appointed Justice S.C.  Jain, a retired Judge of the Allahabad High Court as its nominee arbitrator  "without prejudice" to their right to challenge the validity of the arbitration  proceedings. By a letter dated 20.5.2005, Justice Jain accepted his  appointment as an arbitrator. However, since the two arbitrators were not  able to arrive at a consensus with regard to the appointment of the Presiding  Arbitrator/ Chairperson of the Arbitral Tribunal, the Petitioner moved this  application under Section 11(6) of the Act on 29.8.2005 for appointment of a  Presiding Arbitrator/ Chairperson of the Arbitral Tribunal.

       Mr. Ranjit Kumar, learned Senior Counsel for the Respondent, has  raised a preliminary objection that the petition has been filed by the  Petitioner-Company through Mr. Roger Shashoua, authorized representative  of the Petitioner-Company, but verified and signed by Mr. Raj Manek  holding a Power of Attorney from Mr. Roger Shashoua. The contention is  that the Power of Attorney only permits Mr. Raj Manek to represent Mr.  Roger Shashoua in his personal capacity but does not empower him to  represent the Petitioner-Company. Mr. R.F. Nariman, learned Senior  Counsel for the Petitioner, has drawn our attention to Exhibit P/R-2 filed  along with the rejoinder. The document Exhibit P/R-2, which is a certificate  by Mr. Roger Shashoua, Director of the Petitioner-Company, clarifies that  Mr. Raj Manek is duly authorized to represent him in his personal capacity  as well as the Petitioner-Company:  "\005before any court or other judicial authority or any other  concerned authority to file petitions, applications, documents  etc. and to appoint any advocate in connection thereto and to do  all acts, deeds and things that the above Mr. Raj Manek may  deem fit and proper in pursuance thereof."

In view of this document, I find no substance in the contention.           Mr. Ranjit Kumar, learned Senior Counsel for the Respondent, raised  a further preliminary contention that in view of the decision of the  Constitution Bench in SBP & Co.  v.  Patel Engineering Ltd. , it has now  been conclusively held that the power exercised by the Chief Justice or his  designate under Section 11(6) of the Act, is not an administrative but a  judicial power and that the designate of the Chief Justice has to judicially  determine the issues arising under Section 11(6) of the Act. He contends that  under Article 145 of the Constitution of India, the Supreme Court is  empowered to frame "rules for regulating generally the practice and  procedure of the Court", and under Clause (2), the minimum number of  Judges, who were to sit for any purpose, is also to be fixed by the rules. The  Supreme Court has framed rules known as the Supreme Court Rules, 1966  (hereinafter referred to as "the Rules"). Under Order VII Rule 1 of the Rules,  "Every cause, appeal or matter shall be heard by a Bench consisting of not  less than two Judges nominated by the Chief Justice". Exception is made for  those matters specifically provided thereunder, which could be heard by a  Judge sitting singly nominated by the Chief Justice. The contention is that  since a petition under Section 11(6) of the Act is not specifically enumerated  under the proviso to Order VII Rule 1 of the Rules, such a petition would  have to be heard by a Bench consisting of not less than two Judges.

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       In my view, this contention is entirely misconceived for two reasons.  In the first place, Article 145 of the Constitution itself proceeds by declaring  that the provisions of the Article were "subject to the provisions of any law  made by Parliament". The Act is definitely a "law made by Parliament" and  it does not prescribe that a petition under Section 11(6) has to be heard by a  Bench consisting of at least two Judges. Second, the power under Article  145 of the Constitution and the Rules framed thereunder, are intended to  govern the practice and procedure of the Supreme Court. I am unable to  persuade myself to believe that, the power exercisable by the Chief Justice  under Section 11(6) of the Act is the power of the Supreme Court under the  Constitution. My first impression on this issue is also confirmed by the  judgment of this court in Patel Engineering (supra), where it was observed  that:  "It is common ground that the Act has adopted the UNCITRAL  Model Law on International Commercial Arbitration, but at the  same time, it has made some departures from the Model Law.  Section 11 is in the place of Article 11 of the Model Law.  The  Model Law provides for the making of a request under Article  11 to "the court or other authority specified in Article 6 to take  the necessary measure". The words in Section 11 of the Act are  "the Chief Justice or the person or institution designated by  him". The fact that instead of the court, the powers are  conferred on the Chief Justice, has to be appreciated in the  context of the statute.  "Court" is defined in the Act to be the  Principal Civil Court of original jurisdiction of the district and  includes the High Court in exercise of its ordinary original civil  jurisdiction. The Principal Civil Court of original jurisdiction is  normally the District Court. The High Courts in India  exercising ordinary original civil jurisdiction are not too many.   So in most of the States the court concerned would be the  District Court.   Obviously, Parliament did not want to confer  the power on the District Court, to entertain a request for  appointing an arbitrator or for constituting an Arbitral Tribunal  under Section 11 of the Act. It has to be noted that under  Section 9 of the Act, the District Court or the High Court  exercising original jurisdiction, has the power to make interim  orders prior to, during or even post-arbitration.  It has also the  power to entertain a challenge to the award that may ultimately  be made.   The framers of the statute must certainly be taken to  have been conscious of the definition of "court" in the Act.  It is  easily possible to contemplate that they did not want the power  under Section 11 to be conferred on the District Court or the  High Court exercising original jurisdiction. The intention  apparently was to confer the power on the highest judicial  authority in the State and in the country, on the Chief Justices  of the High Courts and on the Chief Justice of India."  

In short, the power under Section 11(6) is the power of a designate  referred to under the Section and not that of the Supreme Court, albeit that it  has now been held to have judicial characteristics by reason of the judgment  in Patel Engineering (supra). Since this is the power of the Chief Justice  and not the power of the Supreme Court, the specification in Order VII Rule  1 of the Rules as to the minimum number of Judges, would have no  application thereto. If the argument of the learned counsel is right, then even  the Chief Justice cannot pass such an order unless he is sitting in a Bench  with one or more companion Judge. No such intention is evidenced by  Parliament in enacting Section 11(6) of the Act. Since Parliament has  enacted a law under which the power is exercisable by the Chief Justice or  his designate, who could be "any person or institution", I do not think that  the requirement of Order VII Rule 1 of the Rules would apply to such a  situation at all. The contention is, therefore, rejected.

The Respondent’s main opposition to this petition is on the ground  that there is no arbitration agreement in existence since the Management  Agreement was merely a proposal, which was subject to approval of the

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shareholders of the company; that a meeting was called for the shareholders  of the company at which the said proposal was put forward for approval and  was specifically rejected by a resolution passed by the shareholders; that the  nomination of Justice Jain was without prejudice to the rights and  contentions of the Respondent and that this petition was misconceived and  untenable as the High Court of Delhi would have exclusive jurisdiction in  the matter, as it had already been moved under Section 9 of the Act. For the  said reasons, the Respondent has sought dismissal of this petition.

       Before examining the facts of the present petition, it is necessary to  encapsulate the conditions necessary for the exercise of the designate’s  power under Section 11(6) and the judicial determinations necessary by the  designate at the stage of Section 11(6). In addition to the conditions already  enumerated in the Section, the judgment in Patel Engineering (supra)  provides that: "The Chief Justice or the designated judge will have the right to  decide the preliminary aspects as indicated in the earlier part of  this judgment.  These will be his own jurisdiction to entertain  the request, the existence of a valid arbitration agreement, the  existence or otherwise of a live claim, the existence of the  condition for the exercise of his power and on the qualifications  of the arbitrator or arbitrators\005"  

Further, it has also been held that determination of certain preliminary  jurisdictional issues is mandatory for the designate:  "It is necessary to define what exactly the Chief Justice,  approached with an application under Section 11 of the Act, is  to decide at that stage. Obviously, he has to decide his own  jurisdiction in the sense whether the party making the motion  has approached the right High Court.   He has to decide whether  there is an arbitration agreement, as defined in the Act and  whether the person who has made the request before him, is a  party to such an agreement. It is necessary to indicate that he  can also decide the question whether the claim was a dead one;  or a long barred claim that was sought to be resurrected and  whether the parties have concluded the transaction by recording  satisfaction of their mutual rights and obligations or by  receiving the final payment without objection.  It may not be  possible at that stage, to decide whether a live claim made, is  one which comes within the purview of the arbitration clause.   It will be appropriate to leave that question to be decided by the  Arbitral Tribunal on taking evidence, along with the merits of  the claims involved in the arbitration. The Chief Justice has to  decide whether the applicant has satisfied the conditions for  appointing an arbitrator under Section 11(6) of the Act."  

I am, therefore, required to decide whether the preliminary conditions  necessary for the exercise of the designate’s power under Section 11(6) are  satisfied, especially whether there exists a valid arbitral agreement.  

One more issue needs appraisal here: what kind of evidence is the  designate under Section 11(6) required to place reliance on to arrive at a  finding on the preliminary jurisdictional issues? According to the judgment  in Patel Engineering (supra): "For the purpose of taking a decision on these aspects  (preliminary jurisdictional issues), the Chief Justice can either  proceed on the basis of affidavits and the documents produced  or take such evidence or get such evidence recorded, as may be  necessary. We think that adoption of this procedure in the  context of the Act would best serve the purpose sought to be  achieved by the Act of expediting the process of arbitration,  without too many approaches to the court at various stages of  the proceedings before the Arbitral tribunal."            Accordingly, I am given wide discretion to decide what evidence\027

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oral or documentary\027is necessary for me to make an effective finding on  the preliminary jurisdictional issues.   

That an agreement dated 29.10.2003 was signed by the Directors of  the Respondent-Company for and on behalf of the Respondent as well as by  the Directors of the Petitioner-Company for and on behalf of the Petitioner is  not in dispute. What is in dispute is that, subsequent thereto, the said  agreement has been repudiated in an Extraordinary General Meeting alleged  to have been held on 14.9.2004. It is further alleged that the Management  Agreement dated 29.10.2003, which was signed by the Directors of the  Petitioner on the one hand and the Directors of the Respondent on the other  hand was merely a proposal subject to approval of the shareholders of the  Respondent-Company. Certain documents are placed on record and my  attention has been drawn thereto in support of this stand of the Respondent.

       The Petitioner, however, has emphatically denied that any resolution  was passed in the Board Meeting of 14.9.2004, as alleged, by which the  Management Agreement has been repudiated or rendered ineffective. One  Roger Shashoua, who is a major shareholder and Director of the Petitioner- Company, is also a major shareholder and Director of the Respondent- Company, had personal knowledge as to the affairs of the Respondent- Company and, therefore, the Petitioner is aware that no such Extraordinary  General Meeting of the Respondent-Company was held on 14.9.2004 at all,  as alleged. However, in support of his stand, Mr. Ranjit Kumar drew my  attention to copies of certain resolutions purporting to the extract of the  resolution passed on 14.9.2004 at 11:00 A.M. in an Extraordinary General  Meeting held at Business Centre, Hotel Park Royal Intercontinental, Nehru  Place, New Delhi. This resolution is vehemently disputed by Mr. Nariman,  appearing for the Petitioner-Company.

It is not possible to accept the correctness of the disputed documents  or to proceed on the footing that there was such a resolution passed in an  Extraordinary General Meeting by which the Management Agreement of  29.10.2003 was not approved and, therefore, resolved to be treated as null  and void. Mr. Ranjit Kumar then suggested that he be given an opportunity  to lead evidence, including oral evidence to substantiate his stand.  Exercising the discretion granted to me in Patel Engineering (supra), I  decline Mr. Ranjit Kumar’s request as I do not believe that oral evidence is  necessary to determine the present issue. I decline to do so for even if the  power under Section 11(6) be judicial in the sense of requiring a judicial  determination by the designate of the Chief Justice, it surely does not render  the designate of the Chief Justice into a trial court.

       Mr. Ranjit Kumar then placed reliance on Clause (6) of the Minutes of  the Meeting of the Respondent-Company dated 29.10.2003 in which there  was a Resolution passed with regard to ’Management Agreement’, which  inter alia reads as under: "6. Management Agreement Mr. Roger Shashoua proposed to grant a (sic) exclusive  Management Agreement to Rodemadan India Ltd. to manage  the upcoming expocentre on a minimum guarantee basis. The  way the Expocentre will have confirmed income from the  beginning and will enjoy the worldwide experience of  Rodemadan India Ltd. The Board members agreed to the  proposals, subject to statutory approvals.

Resolved that the management contract with Rodemadan India  Ltd. for the management of the centre be approved by all board  members present subject to statutory approvals from the  respective authorities, if any\005."

       There is no dispute on this resolution. Admittedly, the Director of the  Petitioner-Company had attended this meeting and, in fact, it is pursuant to  this resolution that the Management Agreement dated 29.10.2003 was

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entered into between the Petitioner and the Respondent. Mr. Ranjit Kumar  contended that the said resolution proved that the Management Contract was  "subject to statutory approval from the respective authorities, if any".  According to him, Mr. Roger Shashoua is a Director of Rodemadan India  Limited (the Petitioner-Company) and another company, known as,  Rodemadan Holdings Ltd., and also a shareholder in the Respondent- Company. He contends that Section 299 of the Companies Act, 1956  contemplates that: "Every director of a company who is in any way, whether  directly or indirectly, concerned or interested in a contract or  arrangement, or proposed contract or arrangement, entered into  or to be entered into, by or on behalf of the company, shall  disclose the nature of his concern or interest at a meeting of the  Board of directors".  

Under Section 300, such a Director is precluded from taking any part  in the discussion of the Board of Directors nor allowed to vote with regard to  a resolution touching upon such a contract. Learned counsel contended that  Mr. Roger Shashoua was interested in the contract, and therefore, the  Management Contract was null and void because an interested director had  voted thereupon.

       To say the least, the argument appears to be one of sheer desperation,  in my view. It is nobody’s case that Mr. Roger Shashoua is a party to the  Management Agreement. The Management Agreement is between the  Petitioner-Company and the Respondent-Company. Merely because Mr.  Roger Shashoua happens to be a Director of the Petitioner-Company as well  as, a shareholder in the Respondent-Company, I do not think that the  provisions of Sections 299 or 300 of the Companies Act were attracted to the  situation, which required approval of the Government.

       The next contention raised by Mr. Ranjit Kumar is that the Petitioner  is attempting to obtain specific performance when specific performance of  the contract cannot be granted in arbitral proceedings. In fact, this contention  has been squarely rejected by the judgment of this Court in Olympus  Superstructures Pvt. Ltd.  v.  Meena Vijay Khetan and ors.  

       Further, it was urged that Clauses 8.0 and 8.1 of the Management  Agreement are mutually exclusive and, therefore, the relief for specific  performance cannot be asked for and since no consideration had been paid  the contract was void and unenforceable. In my view, these are not issues to  be considered in a petition under Section 11(6) of the Act, as they can all be  raised during the arbitral proceedings.  

       In short, I am not satisfied that the arbitral agreement was vitiated on  any of the grounds averred by Mr. Ranjit Kumar. I am satisfied that there  exists a valid arbitration agreement which contemplates that that all disputes  between the parties under that agreement be referred to arbitration.            Finally, it is contended that as recourse had been taken by the  Petitioner under Section 9 of the Act to obtain interim relief by moving the  Delhi High Court by their Original Petition OMP No. 98/2005 dated  24.3.2005, by reason of Section 42 of the Act that court alone could have  jurisdiction upon the arbitral tribunal. In my view, this contention has no  merit as I have held earlier, neither the Chief Justice nor his designate under  Section 11(6) is a "court" as contemplated under the Act. Section 2(1)(e) of  the Act defines the expression "court". The bar of jurisdiction under Section  42 is only intended to apply to a "court" as defined in Section 2(1)(e). The  objection, therefore, has no merit and is rejected.  The situation is one of a dispute between the Petitioner, which is a  foreign company and the Respondent and is therefore, an "International  Commercial Arbitration" within the meaning of Section 2(1)(f) of the Act.  There is a dispute between the parties where both parties are subject to an  arbitration agreement. Further, the appointed arbitrators have failed to reach  an agreement upon a Chairperson/ Presiding Arbitrator of the Arbitral

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Tribunal. Hence, I am satisfied that all the preliminary conditions specified  in Section 11(6) and Patel Engineering (supra) have been met.          In the result, I allow the petition and appoint Justice Arun Kumar, a  retired Judge of the Supreme Court of India, as the Chairman/ Presiding  Arbitrator of the Arbitral Tribunal, subject to his consent and on such terms  as he fixes.         The petition is accordingly allowed with no order as to costs.