USHA DRAGER PRIVET LIMITED Vs. DRAEGERWERK AKTINGESELLLSCHAFT

JUDGEMENT

(1.) This is an application under Section 45 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the said Act") moved on behalf of the defendant No.2 claiming that there is an arbitration agreement between the parties and that the disputes which are sought to be raised in the present suit be referred to arbitration. The admitted position is that the purported agreement between the parties is one which has reference to Section 44 of the said Act and, therefore, the provisions of section 45 would apply. Section 45 of the said Act reads as under:

(2.) It is contended by Mr Jaitley, the learned senior counsel for the applicant/defendant No.2, that there exists an arbitration agreement between the parties of the nature specified in Section 44 of the said Act and as such the disputes that are sought to be raised in the present suit are referable to arbitration in terms of the arbitration clause. On the other hand, Mr. Mohta, the learned senior counsel for the plaintiffs submitted that a reference under Section 45 of the arbitration cannot arise in a situation where the court finds that the arbitration agreement is null and void or where the agreement is inoperative or incapable of being performed. He submitted that the present arbitration agreement which is being invoked by the defendants, and, in particular, by defendant No.2, is null and void, inoperative and incapable of being performed. This is the ambit within which this application has to

(3.) The suit filed by the plaintiffs' seeks, Inter alia, the following reliefs: