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2021 (4) TMI 1322 - HC - Indian LawsValidity of arbitration proceedings - seeking permanent injunction to restrain ADM from initiating, proceeding with, or continuing with arbitration proceedings - whether a case is made out to grant an anti-arbitration injunction? - HELD THAT:- The principles relating to the grant of anti-suit injunctions were examined and formulated in paragraph 24 of Modi Entertainment [2003 (1) TMI 734 - SUPREME COURT], wherein the Supreme Court held, inter alia, that an anti-suit injunction would not be granted to forbear the exercise of jurisdiction by the forum chosen by the parties - there are no contemporaneous document complaining of the non-receipt of FOSFA Form 54. On the contrary, the executed contracts contain a clause stating that the parties admit knowledge and notice of contract Form 54 of FOSFA. In this context, it is noteworthy that reciprocal obligations were fulfilled by the buyer and seller as regards some of the executed contracts, all of which used the same template, and the allegation that contract Form 54 was not received did not surface then. Therefore, the material on record does not prima facie support the contention that the respective Plaintiff did not have a copy of the contract Form 54 of FOSFA. However, in order to not prejudice the contesting parties in proceedings before the appropriate forum, I do not propose to enter conclusive findings. As regards the contention that the contract is unconscionable because it permits termination by the seller but not by the buyer; prima facie, such contention appears to be untenable in view of the incorporation of contract Form 54 in the executed contracts with the consequential recourse to the termination clause contained therein - The distinction between an arbitration clause and the other provisions of the contract becomes material in this context, and both severance and the Kompetenz-kompetenz principle are firmly entrenched in Indian jurisprudence, as is evident from Sasan and MSM. The respective Plaintiff also contended that the arbitral institution is not neutral inasmuch as it is controlled by oil seed producers. In effect, the respective Plaintiff appeared to contend that any arbitral institution which is set up by a trade organisation is not neutral - The material on record does not support a conclusion that the FOSFA arbitral institution is ex facie not neutral and I see no reason to draw such conclusion merely because FOSFA is an organisation representing the interest of traders in oil seeds and fats. The next contention that should be dealt with relates to the alleged lack of neutrality on the part of the arbitrators. Although such allegation is levelled by the respective Plaintiff, no actionable material has been placed before this Court to substantiate the contention that all the panel arbitrators of FOSFA or the specific arbitrators in the present case are not neutral. Indeed, the facts on record disclose that the respective Plaintiff proceeded to nominate its arbitrator upon receiving a notice of arbitration from ADM. The decision to abandon the arbitral process and institute proceedings before this Court was taken subsequently. In any event, any grievance on this score should be canvassed before the arbitral tribunal and/or the courts in the UK in accordance with applicable law. The respective Plaintiff has failed to demonstrate that the arbitration agreement is null and void, inoperative or incapable of being performed. In light of the above discussion and analysis, there are no reason to continue the anti-arbitration injunction. Consequently, the order of injunction granted originally on 05.07.2019 and extended periodically stands vacated. Plaintiff has failed to make out a case for an anti-arbitration injunction and that this Court does not have jurisdiction - the arbitral process need not be interfered with - application disposed off.
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