RAJIV VYAS Vs. JOHNWIN MANAVALAN

JUDGEMENT

(1.) This petition is filed by the petitioner under section 9 of the Arbitration and Conciliation Act, 1956 (the Act).

(2.) The learned Senior Advocate appearing for the petitioner has at the commencement of the final hearing of this petition clarified that the petitioner is not seeking any reliefs against defendant No. 3 (SCOD 18 Networking Pvt. Ltd.) and is also not seeking any relief pertaining to or arising out of the management agreement dated 5th September, 2006 entered into between the Company called "SCOD Networking Pvt. Ltd." and the petitioner. The main grievance of the petitioner in the present petition is that the respondent Nos. 1 and 2 have breached Clause 12 of the share-holders Agreement (Exhibit-A to the petition) i.e. the "non compete and non solicitation" clause. The petitioner by the present petition is, therefore, desirous of restraining respondent Nos. 1 and 2 from in any manner committing breach of Clause 12 of the said share-holders agreement.

(3.) According to respondent Nos. 1 and 2 the agreement containing the Arbitration Clause is not a concluded agreement, but is incomplete, inchoate and has not come into existence. It is submitted that if the underlined agreement has not been concluded or is not in existence, the arbitration agreement would not be a valid and existing arbitration agreement and cannot be independently enforced. The question therefore of granting any relief under section 9 of the Act cannot arise. It is submitted that in view of the decisions of the Hon'ble Supreme Court in SBP and Co. Vs. Patel Engineering Ltd., 2005 8 SCC 618 and Sundaram Finance Ltd. Vs. NEPC India Ltd., 1999 2 SCC 479, it is a settled position that if there is no arbitration agreement in existence between the parties, the Court will not exercise jurisdiction under section 9 of the Act. Equally, the Court before which a section 9 petition has been filed has to satisfy itself of the existence of an arbitration agreement.