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2000 (4) TMI 755 - SC - Companies LawWhether clause 5 amounted to an arbitration clause at all and whether such a question amounted to a dispute relating to the ‘existence’ of the arbitration clause ? Whether such a question should be decided only by the arbitral Tribunal under section 16 and could not be decided by the Chief Justice of India or his designate while dealing with an application under section 11 ? If the Chief Justice or his designate could decide the said question, then whether clause 5 of the agreements dated 15-8-1995 which used the words "may be referred" required fresh ‘consent’ of the parties before areferences was made for arbitration ? Held that:- Appeal dismissed. Even if the Chief Justice of India or his designate under section 11(12) is to be treated as an administrative authority, the position is that when the said authority is approached seeking appointment of an arbitrator/arbitrators Tribunal under section 11 and a question is raised that there is, to start with, no arbitration clause at all between the parties, the Chief Justice of India or his designate has to decide the said question. The words ‘may be referred’ used in clause 5, read with clause 4, lead me to the conclusion that clause 5 is not a firm or mandatory arbitration clause and in my view, it postulates a fresh agreement between the parties that they will go to arbitration. Point 2 is decided accordingly against the petitioner
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