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Antrix Corp. Ltd. v/s Devas Multimedia P. Ltd.

    Arbitration Petition No. 20 of 2011

    Decided On, 16 November 2011

    At, Supreme Court of India



Judgment Text

Surinder Singh Nijjar, J.

1. I have heard learned counsel for the parties at length. In my opinion in the present petition, certain questions have arisen, which would have far reaching consequences with regard to the scope and ambit of the powers of this Court under Section 11(6) of the Arbitration & Conciliation Act, 1996 (`Act' for short) and the powers of the ICC to constitute the Arbitral Tribunal, especially after the powers of the CJI under Section 11 of the Act has been invoked. In order to define the contours of the controversy between the parties, I had requested learned counsel appearing for the parties to formulate propositions of law which would need to be addressed by the Larger Bench. Pursuant to the aforesaid request, Mr. Soli J. Sorabjee, learned senior counsel and Mr. Gopal Subramanium, learned senior counsel appearing for the petitioner have proposed the following two propositions of law:

"Where the arbitration clause contemplates the application of either ICC Rules or UNCITRAL Rules after the constitution of the Tribunal, could a party unilaterally proceed to invoke ICC to constitute the Tribunal and proceed thereafter?

Whether the judgment of this Hon'ble Court in TDM Infrastructure vs. UE Development reported in (2008) 14 SCC 271 lays down the correct law with reference to the definition of International Commercial Arbitration?"

2. According to Mr. Subramanium, if the aforesaid propositions of law are answered in favour of the petitioner, no further question of law need be considered.

3. On the other hand, Mr. Harish Salve, learned senior counsel appearing for the respondent has also framed 5 questions of law which according to Mr. Salve would also cover the entire field of controversy between the parties.

Mr. Salve has proposed the following 5 questions of law/propositions of law:

"1. Whether the jurisdiction of the Court under Section 11 extends to declaring as invalid the constitution of an arbitral tribunal purportedly under an arbitration agreement, especially, where the tribunal has been constituted by an Institution purportedly acting under the Arbitration agreement?

2. Whether the jurisdiction of an arbitration tribunal constituted by an institution purportedly acting under an arbitration agreement can be assailed only before the Tribunal and in proceedings arising from the decision or award of such Tribunal and not before the Court under Section 11 of the Act?

3. Whether, once an arbitral tribunal has been constituted, the Court has jurisdiction under Section 11 of the Act to interfere and constitute another tribunal?

4. Whether an arbitration between two Indian companies could be an "international commercial arbitration" within the meaning of Section 2(1)(f) of the Act if the management and control of one of the said companies is exercised in any country other than India?

5. Whether the petition is maintainable in light of the reliefs claimed and whether the conditions precedent for the exercise of jurisdiction under Section 11 of the Act are satisfied or not?"

4. In my opinion given the magnitude of the controversy involved, all the 7 questions need to be placed before the Larger Bench to elucidate/clarify the jurisdictional content of this Court under Section 11 of the Act.

5. Mr. Sorabjee and Mr. Subramanium, learned senior counsel relaying on the judgment of this Court in the case of Income Tax Officer, Cannanore Vs. M.K. Mohammed Kunhi1 (AIR 1969 SC 430) have tried to persuade this Court that even while exercising the jurisdiction under Section 11(6) it would have the necessary ancillary/incidental/inherent power to pass interim order, keeping in view the peculiar facts and circumstances of a case.

6. It may also be noticed that at the time of in

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itial hearing of this petition I had actually issued notice on the interim relief. The matter was to be considered upon completion of pleadings. In that view of the matter, the question with regard to the powers/jurisdiction of this Court to grant interim relief may also be placed before the Bench. 7. Registry to take necessary directions from Hon'ble the Chief Justice of India for constitution of Larger Bench.