HARKIRAT SINGH Vs. RABOBANK INTERNATIONAL HOLDING B.V. CO-OPERATIVE CENTRALE CO-OPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.

JUDGEMENT

(1.) This appeal is directed against the order dated 16 October 2006, of a learned single Judge of this Court dismissing the appellant's arbitration petition under section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "the Indian Arbitration Act"). By the said petition, the appellant challenged the Final Award dated 10 April 2006. The Award was rendered by the Arbitral Tribunal and the seat of arbitration was London. The learned single Judge has dismissed the petition on the ground that the petition under section 34 of the Indian Arbitration Act was not maintainable as the impugned Award is a foreign Award and, therefore, Part-I of the Indian Arbitration Act would not apply.

(2.) In view of the above finding of the learned single Judge and the fact that the section 34 petition was dismissed only on the ground of maintainability, we have heard the learned counsel for the parties only on the question of maintainability of the petition under section 34 of the Indian Arbitration Act and not on merits of the dispute between the parties.

(3.) The background facts broadly stated are that a dispute arose out of a failed attempt by the parties to establish a private commercial bank "The Joint Venture Bank (India)". The appellant and two other persons were to be the Indian partners in this venture and the respondent-bank was to be the overseas party. Negotiations between the parties led to drafting the Share Subscription Agreement (SSA) and the Shareholders Agreement (SHA) and draft Articles of Association (AOA) of the proposed Joint Venture Bank. The appellant's claim was that it was a material term of alleged agreements between the Indian partners and the bank that the appellant would be the Chief Executive Officer (CEO) of the proposed Joint Venture Bank but by its actions and conduct, the respondent was in repudiatory breach of the agreements. The respondent contended that the agreements were merely draft and were of no legal force or effect and that the terms of the AOA were never agreed. The notice of arbitration was given under both SHA and SSA. There was a slight difference in the arbitration clauses in the two agreements, but in material respects, the terms were identical. The difference was only concerning the time limit within which the party may nominate an arbitrator in case the other party fails to do so. Article 12.3 of the SSA provided for the agreement to arbitrate in the following terms :