Telangana High Court
M/S Singareni Collieries Company Ltd vs M/S H.B.T Gmbh on 27 February, 2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
COMCA No.3 of 2025
Sri E. Madan Mohan Rao, learned Senior Counsel representing Sri P.Sri Harsha Reddy,
learned counsel for the appellant.
Sri Vedula Srinivas, learned Senior Counsel appearing for Sri B.Sriram Reddy, learned
counsel for the respondent No.1
JUDGMENT:
(Per Hon’ble. Justice Moushumi Bhattacharya)
The subject matter of the Commercial Court Appeal is an
order dated 04.11.2024 passed by the Special Judge for Trial and
Disposal of Commercial Disputes, Ranga Reddy District at L.B.
Nagar (Commercial Court) allowing an Interlocutory Application
(I.A.No.60 of 2024 in C.O.S.No.46 of 2023) filed by the respondent
No.1 under Order VII Rule 11 r/w Section 151 of The Code of Civil
Procedure, 1908 (CPC), for rejection of plaint. By the impugned
order, the Commercial Court rejected the plaint filed by the
appellant in C.O.S.No.46 of 2023.
2. The appellant filed the Suit (C.O.S.No.46 of 2023) for a
permanent injunction restraining the respondent No.1/defendant
No.1 (M/s.H.B.T. GMBH) from continuing to resolve its claims
through arbitration before the defendant No.2 (the International
Court of Arbitration in International Chamber of Commerce) (ICA)
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under the Agreements dated 18.12.2009 and 11.04.2011. The
defendant No.2 is the second respondent in this appeal. The cause
of action pleaded in the plaint arose on 29.04.2023 with the
respondent No.1/defendant No.1 invoking the arbitration clause in
the Agreement dated 18.12.2009 against the appellant and on
31.08.2023 when the defendant No.2 (ICA) directed the parties to
nominate their Co-Arbitrators. The cause of action pleaded in the
plaint includes 29.09.2023 when the respondent No.2/ICA directed
the appellant/plaintiff to nominate its Co-Arbitrator.
3. The respondent No.1 filed the Interlocutory Application
(I.A.No.60 of 2024 in C.O.S.No.46 of 2023) under Order VII Rule 11
of the C.P.C stating that the plaint in the C.O.S. deserves to be
rejected since the appellant had an equally efficacious remedy
under section 16 of The Arbitration and Conciliation Act, 1996
(1996 Act) and also under the law pronounced by the Supreme
Court declaring that a Civil Suit is not maintainable where the
existence or validity of an Arbitration Agreement has been
questioned by a party. The respondent No.1 accordingly sought for
rejection of the plaint on the ground that the plaint is barred by
law.
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I. Submissions of the Appellant and the Respondent No.1
4. Learned Senior Counsel appearing for the appellant/plaintiff
submits that the parties executed Agreements on 18.12.2009 and
11.04.2011 for procurement of long wall equipment for extracting
coal from the appellant/plaintiff’s underground mines, which
contained an arbitration clause. Counsel submits that disputes
arose between the parties during the course of execution of the
contract in 2015-16 and the respondent No.1 claimed amounts
from the appellant, which the latter refused to pay on the ground
that the predecessor of the respondent No.1 had committed default
in the guaranteed performance of the equipment supplied by the
respondent No.1 to the appellant for extracting coal from the
underground mines.
5. Counsel submits that the appellant was precluded from
invoking the Arbitration Clause (Clause 15 of the Agreement dated
18.12.2009) since the invocation was beyond the time limit
provided under Clause 15. Counsel relies on Clause 15A of the
Agreement to argue that the respondent No.1 could only have
initiated proceedings before the District Courts of Khammam/
Karimnagar since the respondent No.1 failed to initiate arbitral
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proceedings within the time limit provided under Clause 15(a) of
the Agreement. Counsel submits that the parties had
unsuccessfully tried to resolve the dispute through negotiation and
that the respondent No.1 should have invoked the Arbitration
Clause within 30 days from 13.03.2016 i.e., the date on which the
negotiation came to an end. Counsel submits that Order VII Rule
11 of the C.P.C would not be applicable since the appellant’s Suit
was not barred by any statute. It is further submitted that section
16 of The Arbitration and Conciliation Act, 1996 can only be
invoked after commencement of the arbitration proceedings which
is admittedly not the case in the present Appeal.
6. Learned Senior Counsel appearing for the respondent No.1
submits that the respondent No.1 sought for rejection of the plaint
since the dispute is related to the existence and validity of the
Arbitration Clause which can only be decided by the Arbitral
Tribunal as opposed to a Civil Court. Counsel argues that a Civil
Court does not have jurisdiction to decide the competence of the
Arbitral Tribunal and cannot pass any injunction order to prevent
arbitration proceedings. Counsel argues that even if the appellant
contends that arbitration clause had been exhausted by expiry of
the prescribed timeframe, such issue can only be decided before
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the Arbitral Tribunal. Counsel places several decisions to contend
that a Civil Court does not have the power to grant an injunction
restraining continuation of arbitral proceedings and that a Suit
seeking such an injunction is contrary to law.
7. We have heard learned Senior Counsel appearing for the
appellant and the respondent No.1 and we have carefully gone
through the material placed before us. The respondent No.2/ICA
is not represented.
8. Our decision in the matter is divided under sub-heads for a
better understanding of the issues involved.
II. Decision
A. Background facts:
9. The appellant/plaintiff and the respondent No.1 entered into
an Agreement on 18.12.2019 for procurement of equipment for
extracting coal from the underground mines of the appellant. The
respondent No.1 was to supply these goods to the appellant. A
further purchase order was executed between the parties on
11.04.2011 for procurement of additional equipment with similar
terms as the earlier Agreement. Clause 15 of the Agreement dated
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18.12.2009 contains an Arbitration Clause. While Clause 15 (a) –
(c) provides for Arbitration, Clause 15A provides for parties to file
proceedings before the Courts having original civil jurisdiction in
the Districts of Khammam/Karimnagar.
10. Disputes arose between the parties in 2015-2016. The
parties exchanged letters on 19.01.2016 and 20.01.2016 with
regard to the start and end-points for negotiations and the
appointment of an Arbitrator under Clause 15 of the Agreement.
The appellant sent a letter to the respondent No.1 on 18.08.2018
with regard to the alleged poor performance of the equipment
supplied by the respondent No.1. The respondent No.1 replied to
the said letter on 06.09.2018 urging the appellant to take a more
collaborative approach to the dispute. The appellant thereafter
sent another letter to the respondent No.1 on 13.12.2018
reiterating the poor performance of the equipment supplied by the
respondent No.1. The parties also exchanged letters on 06.07.2020
and 13.09.2020 and held a meeting on 16.12.2020 for working out
the modalities of the appellant’s claim.
11. The correspondence/discussions between the parties
escalated when the appellant sent a letter to the State Bank of
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India on 20.03.2023 for invoking the Bank Guarantee furnished by
the respondent No.1 against the purchase orders dated 18.12.2009
and 11.04.2011. The appellant sent a further letter to the
respondent No.1 on 05.04.2023 for payment of Euro 2,507,044.51
and INR 1,65,33,612.05 towards insurance and other claims. The
respondent No.1, in turn, sent a notice to the appellant on
28.04.2023 invoking the Arbitration Clause under Clause 15 of the
Agreement and called upon the appellant to agree to one of the
names given by the respondent No.1 as the sole Arbitrator for
adjudicating the dispute within a period of 30 days from the date
of receipt of the notice. By a letter dated 22.05.2023, the appellant
rejected the request of the respondent No.1 for nominating the
Arbitrator on the ground that the reference was beyond the time
frame provided under Clause 15 of the Agreement.
12. The respondent No.2 (ICA) passed an order on 31.08.2023
requiring the respondent No.1/claimant to nominate its Co-
Arbitrator within 15 days under the ICC Rules of Arbitration, 2021
and the respondent No.1 to do the same upon receipt of the
claimant’s nomination.
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13. The appellant applied to the respondent No.2/ICA for
recalling the order dated 31.08.2023. Counsel for the respondent
No.1 sent a letter to the respondent No.2 (ICA) on 26.09.2023
requesting the respondent No.2 to direct the appellant to appoint
its nominee Arbitrator and refer all disputes under the Agreement
dated 18.12.2009 to the Arbitral Tribunal.
14. The appellant filed the Commercial Original Suit
(C.O.S.No.46 of 2023) before the Commercial Court at Ranga
Reddy District on 19.10.2023 for restraining the respondent No.1
from seeking resolution of its claims through Arbitration before the
respondent No.2/ICA under the Agreements dated 18.12.2009 and
11.04.2011. The Commercial Court passed an ex parte interim
injunction on 20.10.2023 restraining the respondent No.l from
continuing the arbitration against the appellant till 03.11.2023.
The respondent No.1 filed its Statement of Objections on
24.01.2024 and I.A.No.60 of 2024 on 05.02.2024 before the
Commercial Court for rejection of plaint under Order VII Rule 11 of
the C.P.C.
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15. The Commercial Court passed the impugned order on
04.11.2024 allowing I.A.No.60 of 2024 and rejecting the plaint filed
in C.O.S.No.46 of 2023.
16. The respondent No.2/ICA granted time to the appellant till
30.12.2024 to nominate its Arbitrator.
17. We propose to restrict our decision only to whether the plaint
was correctly rejected under Order VII Rule 11(d) of the CPC.
B. The statements in the plaint must be taken to be correct for a
Decision on whether the Plaint was liable to be rejected.
18. The captioned heading is the test for application for rejection
of plaint under Order VII Rule 11 of the CPC, that is, whether the
rejection is warranted on any of the grounds under Clauses (a) – (f)
of Order VII Rule 11. In the present case, the ground taken by the
respondent was under Clause (d) i.e.,
“(d) where the suit appears from the
statement in the plaint to be barred by any
law;”
19. The test to be applied runs along the statements made in the
plaint which are taken to be correct in their entirety i.e., whether
the statements made in the plaint would alone entitle the plaintiff
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to a decree: Liverpool & London S.P. & I Assn. Ltd. Vs. M.v. Sea
Success I 1 . The plea taken by the defendant in the written
statement or in the application for rejection of plaint is irrelevant
for a decision on whether the plaint was liable to be rejected:
Sopan Sukhdeo Sable Vs. Charity Commr., 2. Therefore, the starting
point of adjudication as to the correctness of the impugned order,
allowing the respondent’s application for rejection of plaint, would
be the statements in the plaint itself.
C. Does the plaintiff’s Suit appear to be barred by law from the
statements made in the plaint ? Order VII Rule 11(d) of the CPC.
20. A summary of the relevant paragraphs/statements in the
plaint is given below:
The Suit described itself as a “Suit for Permanent
Injunction”.
The parties could not arrive at a settlement under clause 15
of the Agreement dated 18.12.2009 within the time period
provided under the said clause i.e., by 15.03.2018
(paragraph No.6)
1 (2004) 9 SCC 512
2 (2004) 3 SCC 137
11 The defendant No.1 sought to refer the disputes to
arbitration in May, 2023. Arbitration mechanism for
redressal is not permitted under the Agreement since clause
15 of the Agreement ceased to be in operation and Clause
15A was triggered instead. Thus, only a civil Suit can be
filed for redressal of grievance if any. (paragraph 9)
A 5 – Judge Bench of the Supreme Court in N.N. Global
Mercantile Private Limited Vs. Indo Unique Flame Limited 3
(dated 25.04.2023) held that an insufficiently-stamped
Arbitration Agreement cannot be acted upon. (paragraph
10B)
The Agreement dated 18.12.2019 is null and void in view of
the law laid down by the Supreme Court in N.N. Global
(paragraph 13)
The claims referred to arbitration dated 29.04.2023 were
barred by the laws of limitation (paragraph 12)
The plaintiff is entitled to and the Court has the power to
grant an anti-suit injunction. (paragraph 18)
3
(2023) 7 SCC 1
12 Prayer (i) of the plaint is for permanent injunction
restraining the defendant No.1 from seeking resolution of its
claims through arbitration with the defendant No.2
(International Court of Arbitration) under the Agreements
dated 18.12.2009 and 11.04.2011.
21. These are the statements made in the plaint. The scrutiny of
this Court will hence be limited to the legality/preservation of the
plaint in light of the statements therein. It is clear from the
statements that the Suit is for restraining the defendant
No.1(respondent No.1 herein) from resolving its claims through
and/or continue with the arbitral process. The appellant/plaintiff
has grounded this prayer on a construction of clause 15 of the
Agreement dated 18.12.2009. The appellant says that the
respondent No.1/defendant No.1 was precluded from invoking
arbitration under clause 15 since the time to invoke arbitration
expired under clause 15(a).
22. The appellant’s case is that Clause 15(a) would be triggered
once the time to invoke arbitration expires. The only recourse
available under Clause 15(a) would be to approach the Courts
having original civil jurisdiction in the district of
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Khammam/Karimnagar in the State of Telangana. This ground
was taken in the statements made in the plaint as enumerated
above.
23. We reiterate that the contra-interpretation given by the
respondent No.1 to Clause 15 or the correspondence relied upon
by the said respondent is strictly outside the purview of an Order
VII Rule 11 issue where the plaint stands front and center of the
adjudication. We shall therefore proceed to answer the issue on
the legality of the plaint.
24. The answer can be found in The Arbitration and Conciliation
Act, 1996 and the law pronounced by the Supreme Court, which is
discussed below.
D. The Arbitration and Conciliation Act, 1996 provides the
statutory bulwark against Court – Intervention
25. The fetters to judicial interference are built into the Scheme
of the 1996 Act. Section 5 of the Act curtails the powers of the
Courts to intervene in matters governed by Part I of the Act relating
to arbitrations anchored in India.
14
26. Section 16 underscores the principle of kompetenz-
kompetenz by bestowing the power to the Arbitral Tribunal to rule
on its own jurisdiction including on any objections with respect to
the existence or validity of the Arbitration Agreement.
27. The doctrine of kompetenz-kompetenz implies conferment of
this very power on the Arbitral Tribunal and intends to minimise
judicial intervention in the arbitral process. The only exception to
this doctrine is where the Arbitration Agreement itself is
impeached by fraud or analogous principles thereto or lacks any of
the requirements under section 7 of the Act which lends form and
substance to an “Arbitration Agreement” as defined under section
2(1)(b) of the 1996 Act. The exception also covers matters where
the arbitrability of the dispute is called into question: M/s.
Uttarakhand Purv Sainik Kalyan Nigam Ltd. Vs. Northern Coal Field
Limited 4.
E. The law with regard to Anti-Arbitration Suits.
28. The consensus of the Courts, as would be evident from the
decisions placed before us, is that Civil Courts should adopt a
hands-off approach in respect of arbitration matters. The decisions
4
(2020) 2 SCC 455
15
emphasise limited judicial intervention under section 5 of the 1996
Act concerning matters governed by Part I of the 1996 Act and on
the principle of kompetenz-kompetenz, which preserves the sanctity
of the power conferred on the Arbitral Tribunal to rule on its own
jurisdiction.
29. A brief statement of the decisions reinforcing the above view
is given below. The list ends with the most recent decision on the
subject.
F. Judicial Non-Interference permeates the scheme of The
Arbitration and Conciliation Act, 1996
Kvaerner Cementation India Limited Vs. Bajranglal Agarwal 5 –
Section 16 of the 1996 Act confers power on the Arbitral
Tribunal to rule on its own jurisdiction including on any
objection in respect to the existence or validity of the
Arbitration Agreement. A Civil Court does not have
jurisdiction to go into that question.
National Aluminium Company Limited Vs. Subash Infra
Engineers Private Limited 6 – the Supreme Court followed the
decision in Kvaerner Cementation India Limited (supra).
5
(2012) 5 SCC 214
6
(2020) 15 SCC 557
16
Sushma Shivkumar Daga Vs. Madhurkumar Ramkrishnaji
Bajaj 7 – the Supreme Court held that section 16 of the 1996
Act gives immense powers to the Arbitral Tribunal, including
the power to rule on its own jurisdiction. Hence, all
jurisdictional issues can be gone into by the Arbitral
Tribunal. Party autonomy and minimal judicial intervention
in the arbitral process underscores the legislative intent in
enacting the 1996 statute. It was further held that the scope
of judicial scrutiny at the stage of section 11(6) or section 8
is extremely limited after the 2015 amendment to the Act.
The only exception to this rule is where the dispute itself is
non-arbitrable or statutorily protected under a special
legislation.
In Re: Interplay between Arbitration Agreements under
Arbitration and Conciliation Act, 1996 and Stamp Act, 1899 8 –
A 7-Judge Bench of the Supreme Court reiterated that the
principle of party autonomy is an integral element of the
ever-evolving domain of arbitration law and means that the
parties to an Arbitration Agreement can exercise their
7
AIR 2024 SC 197
8
(2024) 6 SCC 1
17
contractual freedom to bestow the Arbitral Tribunal with the
authority to decide disputes that may arise between them.
The principle of judicial non-interference reflects the
autonomy of Arbitral Tribunals. The competence of an
Arbitral Tribunal to rule on its own jurisdiction including on
any objections with regard to the existence or validity of the
Arbitration Agreement indicates that the Arbitral Tribunal
enjoys sufficient autonomy from the national courts. The
principle of judicial non-interference is fundamental to both
domestic and international commercial arbitration and finds
statutory expression in section 5 of the Act which is a
reproduction of Article 5 of the Model Law on the extent of
Court intervention. Section 5 of the Act in fact has more
teeth since it begins with a non-obstante clause. The
doctrine of kompetenz-kompetenz implies that Arbitrators are
empowered to make a final ruling on their own jurisdiction
with no subsequent judicial review of the decision by any
Court.
SBI General Insurance Com. Ltd. Vs. Krish Spinning 9 – The
Supreme Court held that the principle of judicial non-
9
2024 SCC OnLine SC 1754
18
interference permeates the scheme of the 1996 Act and is
contained in section 16 thereof. Section 5 of the 1996 Act
minimises the supervisory role of Courts. Judicial
authorities are prohibited from intervening in the arbitral
proceedings where the Arbitral Tribunal has been conferred
with exclusive jurisdiction. Section 16 recognises the
intention of the parties in choosing arbitration as the dispute
– resolution mechanism and prevents the parties from
initiating parallel proceedings before Courts.
Cox and Kings Limited Vs. SAP India Private Limited 10 and
Aslam Ismail Khan Deshmukh Vs. ASAP Fluids Private
Limited 11 – In both these decisions, the Supreme Court
reiterated the limited role of the Court in an application for
appointment of Arbitrator under section 11(6) of the 1996
Act. The Supreme Court held that it was open for the parties
to raise all available objections in law including that of
limitation before the Arbitral Tribunal. The principle of
judicial non-interference permeates the Scheme of the 1996
Act and sections 16 and 5 indicate that the Arbitral Tribunal
enjoys sufficient autonomy from the national courts.
10
(2025) 1 SCC 611
11
(2025) 1 SCC 502
19
G. Anti-Arbitration Injunctions militate against Party Autonomy
30. Apart from the law laid down by the Supreme Court, the
broad parameters governing anti-arbitration injunctions may be
summarized in the following manner:
31. A Court should be extremely circumspect in granting an
Anti-Arbitration injunction and such an injunction should only be
granted upon the considered view that the proceedings initiated
are vexatious or oppressive to the party resisting arbitration. An
injunction may also be granted where the authenticity of the very
Arbitration Agreement has been questioned or the arbitration
proceedings are found to be unconscionable. In the context of an
Anti-Suit Injunction, the Supreme Court in Modi Entertainment
Network Vs. W.S.G. Cricket PTE Ltd. 12 held that such an injunction
would not be granted to nullify the exercise of jurisdiction of the
forum chosen by the parties.
32. In general, the overarching consideration of the Court is that
underpinning section 45 of the 1996 Act i.e., when the Court prima
facie finds that the arbitration agreement is null and void,
inoperative or incapable of being performed.
12
(2003) 4 SCC 341
20
33. The expression ‘null and void’ would cover those cases where
the arbitration agreement is affected by invalidity right from the
beginning, such as lack of consent due to misrepresentation,
duress, fraud or undue influence. The word ‘inoperative’ would
apply where the arbitration agreement has ceased to have effect,
such as revocation by the parties. ‘Incapable of being performed’
would apply where the arbitration cannot effectively be set into
motion, either because it is vaguely – worded or the terms of the
contract contradicts the parties’ intention to arbitrate: Albert Jan
Van Den Berg in an article titled “The New York Convention, 1958 –
An Overview” published in the website of ICCA.
34. In essence, the threshold tests for an Anti-Arbitration
injunction are exacting and are rarely entertained or applied by the
Courts, given the all-pervasive remedy under section 16 of the
1996 Act.
35. It is important to bear in mind that the focus of the 1996 Act
is to minimise interference in the arbitration process and the
parties’ forum of choice. The thrust should be to carry the
legislative intention forward rather than taking a regressive view of
the object of the Act.
21
36. The unimpeachable conclusion is that any question as to the
existence or validity of the arbitration agreement or a doubt as to
the invocation of the arbitration clause must inevitably be decided
by the Arbitral Tribunal. The parties cannot approach the Civil
Courts for thwarting the arbitral process particularly where the
arbitration agreement has not been disputed. The case sought to
be made out by the appellant is contrary to the position under the
1996 Act and the decisions referred to above.
37. The plaint also contains one other statement/ground which
is contrary to law. The plaintiffs rely on the 5 – Judge Bench
judgment of the Supreme Court in N.N. Global (supra) decided on
25.04.2023 in paragraph 10(B) and 13 of the plaint stating that
the defendant No.1 is not entitled to invoke arbitration mechanism
on an un-stamped agreement. The 5 – Judge Bench of the
Supreme Court in N.N. Global (supra) was overruled in a Curative
Petition decided by a 7 – Judge Bench of the Supreme Court in
Interplay between Arbitration Agreements under Arbitration and
Conciliation Act, 1996 and Stamp Act, 1899 (supra).
22
38. Therefore, the proposition stated in the plaint for restraining
the defendant No.1 from invoking or continuing with arbitration is
on an incorrect and patently erroneous legal premise.
39. We are accordingly of the firm view that the Suit (COS.No.46
of 2023) filed by the appellants appears to be barred by law from
the statements made in the plaint under Order VII Rule 11 (d).
III. The impugned Order dated 04.11.2024
40. The impugned order does not give any scope for interference
in the context of our decision in the foregoing paragraphs of this
judgment. The Trial Court relied on sections 9 and 16 of the 1996
Act together with the decisions pronounced by the Supreme Court
to allow the petition for rejection of plaint.
41. In Oriental Insurance Vs. Narbheram Power and Steel Private
Limited 13, the Supreme Court came to a specific finding that there
was absence of an unequivocal intention of the parties to arbitrate.
A Single Bench decision of the Delhi High Court in Techfab
International Private Limited Vs. Midima Holdings Limited 14 is not
applicable to the issue at hand since the appointment of the Sole
13 (2018) 6 SCC 534
14 2024 SCC OnLine Del 699
23
Arbitrator was found to be contrary to the procedure agreed upon
by the parties. Board of Trustees of the Port of Kolkata Vs. Louis
Dreyfus Armatures SAS 15 questioned the initiation of the
proceedings under the arbitration rules of the United Nations
Commission on International Trade Law, 1976 by a French
National on the basis of a bilateral treaty between Government of
India and the Government of France. The facts are hence totally
distinguishable from this case. B and T AG Vs. Ministry of
Defence 16 dealt with a belated plaint which the Supreme Court
found to be hopelessly time-barred. The said proposition has no
application to the present facts of the case. World Sport Group
(Mauritius) Vs. MSM Satellite (Singapore) PTE17 was pronounced in
relation to the proceedings under section 45 of the 1996 Act in a
foreign-seated arbitration in Part – II of the said Act. Emaar India
Limited Vs. Tarun Aggarwal Projects LLP 18, Magic Eye Developers
Private Limited Vs. Green Edge Infrastructure Private Limited 19 and
Indian Oil Corporation Limited Vs. NCC Limited 20 are in relation to
15 2014 SCC OnLine Cal 17695
16 (2024) 5 SCC 358
17 (2014) 11 SCC 639
18 (2023) 13 SCC 661
19 (2023) 8 SCC 50
20 (2023) 2 SCC 539
24
section 11(6) of the 1996 Act which is also not applicable to the
facts before us.
IV. Conclusion
42. None of the aforesaid or the other decisions cited by the
appellant are relevant to the adjudication in the present Appeal.
Counsel for the appellant has not cited any decision on Order VII
Rule 11 of the CPC which was the issue before the Trial Court and
forms the fulcrum of consideration before us in the present Appeal.
43. We should also add that the appellant’s contention of the
inapplicability of section 16 at a stage before constitution of the
Arbitral Tribunal is iniquitous and self-serving, to say the least.
The appellant cannot take advantage of its inaction having
obtained an ex parte interim injunction from the Trial Court on
20.10.2023 for restraining the respondent No.1 from continuing
with the arbitration and thereafter failing to nominate its Arbitrator
in the International Court of Arbitration. In essence, the appellant
cannot contend that section 16 of the 1996 Act will only apply after
constitution of the Arbitral Tribunal.
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44. We accordingly find sufficient basis to affirm the impugned
order dated 04.11.2024 as correct. The impugned order does not
give any scope for interference.
45. COMCA.No.3 of 2025 is accordingly dismissed. All
connected applications are disposed of. Interim orders, if any,
shall stand vacated. There shall be no order as to costs.
_________________________________
MOUSHUMI BHATTACHARYA, J
_____________________________
B.R.MADHUSUDHAN RAO, J
Date: 27.02.2025
VA/BMS
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