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2022 (5) TMI 1122 - HC - Insolvency and BankruptcyLiability of respondents to pay its share of the Cash Calls - Appointment of nominee arbitrator - enabling constitution of an Arbitral Tribunal for adjudication of the disputes that have arisen between the parties in relation to the Joint Operating Agreement - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- It is well settled that in terms of sub-section (6A) of Section 11 of the A&C Act, the scope of examination under Section 11 of the A&C Act is limited to the existence of an arbitration agreement between the parties. Notwithstanding the same, in cases where it is ex facie clear that the disputes cannot be entertained, the courts would refrain from entertaining the petition to appoint an arbitrator as the same would be an exercise in futility. It is also trite law that it is only in exceptional cases where it is absolutely clear that the disputes cannot be entertained that the court will decline to entertain a petition under Section 11 of the A&C Act. The standards of examination under Section 11 of the A& C Act do not permit the court to carry out any adjudicatory exercise in respect of any contentious issue. The question whether the liability sought to be enforced by BPRL against the respondent stands extinguished is a contentious issue. This Court is unable to accept that the controversy involved in the present case falls within the standards of examination under Section 11 of the A&C Act. The Supreme Court in its recent decision in MOHAMMED MASROOR SHAIKH VERSUS BHARAT BHUSHAN GUPTA & ORS. [2022 (2) TMI 134 - SUPREME COURT] while referring to the decision in VIDYA DROLIA AND OTHERS VERSUS DURGA TRADING CORPORATION [2020 (12) TMI 1227 - SUPREME COURT] held that “the Court by default would refer the matter when contentions relating to nonarbitrability are plainly arguable.” This Court is not required to examine and adjudicate any contentious issue and the parties must be relegated to the forum of their choice for adjudication of their disputes - Petition allowed.
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