http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

CASE NO.: Appeal (civil)  5048 of 2005

PETITIONER: Shin-Etsu Chemical Co. Ltd.                      

RESPONDENT: M/s Aksh Optifibre Ltd., & Anr.          

DATE OF JUDGMENT: 12/08/2005

BENCH: D. M. Dharmadhikari

JUDGMENT: JUDGMENT         [Arising out of SLP(C) No. 3160 of 2005]

Dharmadhikari J.

                Leave granted.

       I have carefully gone through very elaborate and well- considered opinions differing with each other of learned Brethren Y.  K. Sabharwal and B. N. Srikrishna JJ.

       With utmost respect to both of them, I am inclined to agree  with the view expressed by learned Brother Srikrishna J. but only  with a rider and a partly different reason which may I state below:-

       The main issue is regarding the scope of power of any judicial  authority including a regular civil court under section 45 of the Act  in making or refusing a reference of dispute arising from an  international arbitration agreement governed by the provisions  contained in Part III Chapter-I of the Act of 1996. I respectfully  Agree with learned Brother Srikrishna J only to the extent that if on  prima facie examination of the documents and material on record,  including the arbitration agreement on which request for reference  is made by one of the parties, the judicial authority or the court  decides to make a reference, it may merely mention the  submissions and contentions of the parties and summarily decide  the objection if any raised on the alleged nullity, voidness,  inoperativeness or incapability of the arbitration agreement. In  case, however, on a prima facie view of the matter, which is  required to be objectively taken on the basis of material and  evidence produced by the parties on the record of the case, the  judicial authority including a regular civil court, is inclined  to reject  the request for reference on the ground that the agreement is ’null  and void’ or ’inoperative’ or ’incapable of being performed’ within  the meaning of section 45 of the Act, the judicial authority or the  court must afford full opportunities to the parties to lead whatever  documentary or oral evidence they want to lead and then decide the  

question like trial of a preliminary issue on jurisdiction or limitation  in regular civil suit and pass an elaborate reasoned order. Where a  judicial authority or the court refuses  to make a reference on the  grounds available under section 45 of the Act, it is necessary for the  judicial authority or the court which is seized of the matter, to pass  a reasoned order as the same is subject to appeal to the appellate  court under section 50(1)(a) of the Act and further appeal to this  Court under sub-section (2) of the said section.  

       Whether such a decision of the judicial authority or the court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

of  refusal to make a reference on grounds permissible under  section 45 of the Act would be subjected to further reexamination  before the arbitral tribunal or the court in which eventually the  award comes up for enforcement in accordance with section  48(1)(a) of the Act, is a legal question of sufficient complexity and  in my considered opinion since that question does not directly arise  on the facts of the present case, it should be left open for  consideration in an appropriate case where such a question is  directly raised and decided by the court.  

        With this addition, I agree with the view expressed by learned  Brother Srikrishna J., and with his conclusion that the matter should  be remitted to the original court for a fresh decision in the light of  the view expressed by this Court.