TMI Blog1999 (9) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... the arbitration agreement when the parties have with their eyes open willingly entered into the agreement. Moreover, in the case at hand the parties have willingly initiated the arbitration proceedings on the disputes having arisen between them. They have appointed arbitrators, participated in arbitration proceedings and suffered an award. The plea raised before us was not raised either before or during arbitration proceedings, nor before the learned Single Judge of the High Court in the objections filed before him, nor in the Letters Patent Appeal filed before the Division Bench. Such a plea is not available to be raised by the appellant Atlas before this Court for the first time. For the foregoing reasons, we find no fault with the awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailure to ship the goods by the time appointed by the contract and as extended which resulted into a dispute arising between the parties. The contract dated 3rd June, 1980 incorporated an arbitration clause which is extracted and reproduced hereunder :- "This contract is made under the terms and conditions effective at date of the Grain and Food Trade Association Ltd. London Contract No.15 which is hereby made a part of this contract........ both buyers and sellers hereby acknowledge familiarity with the text of the GAFTA contract and agree to be bound by its terms and conditions." `GAFTA' stands for the Grain and Food Trade Association Ltd., London. Clause 27 of the Standard Contract 15 of the GAFTA provides as under:- "27. ARBITRATI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Foreign Awards (Recognition and Enforcement) Act, 1961 before the High Court of Bombay seeking enforcement of the award by filing of the same and pronouncing judgment according to the award. Atlas raised objections against the prayer made by Kotak. The objections have been rejected and the award made rule of the Court followed by decree in terms of the award under the judgment dated 22nd September, 1992 passed by learned Single Judge of the High Court of Bombay. A Letters Patent Appeal preferred by Atlas having been dismissed, the present appeal by special leave has been filed. Having heard the learned counsel for the parties we are of the opinion that the appeal is devoid of any merit and hence liable to be dismissed. The only ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it may be included in a particular contract by reference or implication. The agreement between the parties may incorporate arbitration provisions which are set out in some other document, but in order to be binding the arbitration provisions must be brought to the notice of both parties. It is inherent in cases of incorporation by reference that the parties are concerned not with one document alone but with at least two, one of which contains an arbitration clause and the other of which does not. In some cases the one document may constitute a contract between other parties. A common case is where the two documents concerned are a charterparty and a bill of lading. If the relevant contract between the relevant parties is contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between whom the dispute arose, are both Indian parties and the contract which had the effect of compelling them to resort to arbitration by foreign arbitrators and thereby impliedly excluding the remedy available to them under the ordinary law of India should be held to be opposed to public policy. Under Section 23 of the Indian Contract Act the consideration or object of an agreement is unlawful if it is opposed to public policy. Section 28 and Exception 1 to it, ( which only is relevant for the purpose of this case) are extracted and reproduced hereunder:- "28. Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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