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2022 (2) TMI 444 - HC - Indian LawsPrayer for appointment of Sole Arbitrator to adjudicate the disputes among the parties - existence of an arbitration agreement between the parties - Section 11 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- It prima facie, appears that the intention of the parties was to carry out the transaction under the MOUI in the re-negotiated form while accepting all other attendant agreements. It is for this reason all ICDs, Share-Pledge Agreements and Deeds of Guarantees, which were executed on 25.11.2019, were incorporated as part of the MOU-II. There is no reason to exclude the Arbitration Agreement, which was also executed on the same date, from the scope of incorporation by reference under Clause 15 of the MOU-II - It is also the respondents’ case that the question as to the existence of the Arbitration Agreement must be left open for the Arbitral Tribunal to decide. The Court will decline appointment of an arbitrator if it finally concludes that an arbitration agreement does not exist. However, the Court needs only to be prima facie satisfied as to the existence of an arbitration agreement for the arbitrator to be appointed - this Court is prima facie satisfied as to the existence of an arbitration agreement. Thus, this Court considers it apposite to allow the present petition. It is, however, clarified that this would not preclude the respondents from contesting the existence of an arbitration agreement before the Arbitral Tribunal. Justice (Retd.) Aftab Alam, a former Judge of the Supreme Court, is appointed as the Sole Arbitrator to adjudicate the disputes between the parties subject to the learned Sole Arbitrator making the necessary disclosure as required under Section 12(1) of the A&C Act and not being ineligible under Section 12(5) of the A&C Act. The parties are at liberty to approach the learned Sole Arbitrator for further proceedings. Petition allowed.
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