HEERLAXMI CONTRACTORS PVT LTD Vs. STATE BANK OF INDIA
DEBTS RECOVERY APPELLATE TRIBUNAL
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Shrikant G.Kulkarni, -
(1.) WHETHER there is an arbitration agreement between the applicant and the opponent? If yes, whether in view of provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (for short SRFAESI Act), the dispute falls within the jurisdiction of Arbitrator are the points that arise for consideration in the present application filed for relegating the matter before the Arbitrator under Section 8 of the Arbitration and Conciliation Act, 1996.
(2.) It is the contention of the opponent that there is an agreement between the applicant and the opponent to refer the dispute to the Arbitrator and, therefore, the matter needs to be relegated to the Arbitrator. The application is opposed on the ground that there is no agreement as contemplated under Section 7 of the Arbitration and Conciliation Act, 1996. Secondly, the clause regarding arbitration was applicable on "the relevant date" and thirdly the Arbitrator cannot decide the dispute in view of Sections 35 and 37 of SRFAESI Act.
I have beard Mr. Anil Kumar, learned Counsel appearing on behalf of the opponent No. 1 and Mr. Subodh Dharmadhikari, learned Counsel appearing on behalf of the applicant in extenso.
(3.) MR. Anil Kumar, learned Counsel appearing on behalf of the opponent Bank submitted that the language of Section 8 of the Arbitration and Conciliation Act, 1996 is clear and unambiguous, if the opponent proves that the applicant had submitted to the arbitration clause, then the Tribunal has to relegate the matter to the Arbitrator. MR. Anil Kumar placed reliance on the announcement dated 29th November, 2004, particularly Clause 19 and submitted that the said announcement made it clear in unequivocal terms, that the dispute should be referred to the Arbitrator. He placed reliance on the announcement dated 12th February, 2005, particularly Clause 14, which is a replica of Clause 19 in the earlier announcement and submitted that the said stand of the opponent Bank was clear right from the beginning. He then referred to the letters issued by the applicant on 20th November, 2004, 22nd November, 2004, 29th November, 2004, 30th November, 2004 and 19th November, 2005, issued by the applicant and submitted that the applicant was fully aware of the terms of arbitration and did not repudiate the said term and impliedly accepted the same. He submitted that Section 7 of the Arbitration and Conciliation Act, 1996 lays down that agreement regarding arbitration can be gathered from exchange of letters, telegrams or other means of telecommunication which provide the record and agreement and it is not necessary that the parties should sit together and put their hands on the document called arbitration agreement. Relying on Hindustan v. Pink City Petroleums III (2003) CLT 17 (SC) : AIR 2003 SC 2881, Shri Anil Kumar submitted that once the existence of arbitration clause stands proved, then the Court has no option but to relegate the parties to the Arbitrator.;
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