LEEPEE ENTERPRISE Vs. MEHUL INDUSTRIES

JUDGEMENT

(1.) The present appeal under sec. 37 of the Arbitration and Concilliation Act 1996 (" Arbitration Act " for short) is preferred to assail the judgment and order passed by learned 13th Additional District Judge, Rajkot in Regular Civil Appeal No.29 of 2017 whereunder lower appellate court dismissed the application preferred by the appellant under sec. 34 of the Arbitration Act to set aside the arbitral award dtd. 24/8/2015.

(2.) I have heard Mr.Vasim Mansuri, learned advocate for the appellant and Mr.B.B.Gogia, learned advocate for respondent No.1. Respondent No.2 - Arbitrator is a formal party.

(3.) Mr.Mansuri vehemently submits that there was no valid bipartite arbitration agreement between the appellant and respondent No.1. It is his submission that the appellant had purchased the goods from respondent No.1 on the basis of delivery challan wherein no arbitration clause is stipulated. He submits that arbitration clause is unilaterally incorporated in the invoice. He submits that invoice is signed by respondent No.1 or its authorized representative, but the same is not signed by the appellant or its authorized representative. He submits that bare reading of arbitration clause contained in invoice makes it clear that such clause is in respect of particular invoice alone. He, therefore, submits that arbitration proceedings on the basis of such unilateral arbitration clause contained in invoice was without jurisdiction and not binding to the appellant. He further submits that common arbitration proceedings for various invoices was also not competent, as, if it is assumed for the sake of argument that arbitration clause in the invoice is valid then separate arbitration proceedings ought to have been initiated in respect of each invoice. He emphatically submits that as the appellant has not signed the invoice, parties were not consensus ad idem regarding appointment of Arbitrator. He further submits in reply to legal notice dtd. 21/10/2014 issued by respondent No.1, the appellant has clearly stated that there is no agreement regarding appointment of Arbitrator for the dispute regarding accounts and goods between the parties. He further submits that the issue of jurisdiction of the Arbitrator is a legal issue which can be raised at any stage of the proceedings, hence, non-raising or not participating in the arbitral proceedings cannot debar the appellant from raising the issue of jurisdiction in an application under sec. 34 of the Arbitration Act or in the present appeal. He further submits that as the arbitral award is without jurisdiction, the same is null and void and nonest and is not binding to the appellant. In respect of his contention that unilateral condition in invoice does not constitute valid arbitration agreement between the parties, he has relied upon the decisions of the Delhi High Court in the cases of Alupro Building Systems Pvt Ltd Vs Ozone Overseas Pvt Ltd, reported in , Rameshwar Dass & Sons (HUF) Vs M/s Caravel Logistics Pvt Ltd, reported in 2015 Lawsuit (Del) 256, IMV India Pvt Ltd Vs Stridewel International, reported in and Divya Shivlaks Impex Vs Shantilal Jamnadas Textiles Pvt Ltd, reported in 1999 Lawsuit (Bom) 130. He, therefore, submits that the appeal requires consideration.