TMI Blog2006 (5) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 of the FAI terms. Section 10 of the Act provides that the number of Arbitrators shall not be `even'. The arbitration clause provides that the dispute shall be referred to two Arbitrators and in the event of Arbitrators not agreeing then an Umpire to be appointed by the Arbitrators in writing before proceeding to the reference. Having regard to section 10 of the Act, the Arbitral Tribunal shall consist of three Arbitrators (one to be appointed by each of the two parties and the Presiding Arbitrator). Thus this petition is allowed and the following Arbitral Tribunal is constituted to adjudicate upon the claim made by the petitioner against the Respondent and to settle the disputes between the parties - ARBITRATION P. 4 OF 2006 - - - Dated:- 24-5-2006 - R.V. RAVEENDRAN, J. JUDGMENT The petitioner has filed this petition under Section 11(4) of the Arbitration and Conciliation Act, 1996 (for short `the Act') for appointment of an Arbitral Tribunal for adjudication of its claims and settlement of the disputes between the parties. 2. The facts, in brief, as stated by petitioner are as follows: 2.1. Petitioner is a company incorporated under the laws of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of the notice. The petitioner also informed the respondent that if the respondent failed to comply, appropriate proceedings will be initiated. In spite of it, the respondent did not comply, necessitating the filing of this petition for appointment of an second Arbitrator to the Arbitral Tribunal for adjudication and settlement of the claims. 3. The respondent entered appearance and has filed its counter, resisting the petition on the following grounds : (i) The petitioner, having denied before the Jordanian Courts (Amman Court of First Instance and Amman Court of Appeals), the existence of arbitration agreement between the parties, is estopped from contending in this petition, that there is an arbitration agreement between the parties, or that the disputes should be settled by arbitration. (ii) The claim of the petition is barred by limitation as the amounts claimed are in respect of goods dispatched as per the Bills of Lading dated 19.11.2000, 28.11.2000, 10.12.2000, 22.12.2000 and 13.7.2001, and the last of the correspondence from Respondent was on 17.4.2002. (iii) The petitioner's contention that there is an arbitration agreement between the parties in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er denies having placed 5 purchase orders on the petitioner nor denied the fact that the purchase orders were all placed subject to the FAI terms and conditions, including clause 15 of FAI terms which provides for arbitration. On the other hand, the contention of the respondent is that the petitioner having denied the arbitration agreement before the Jordanian Court, cannot now contend that there is an arbitration agreement. Respondent also contends that in the absence of any letter from the petition specifically referring to or agreeing to arbitration and in view of petitioner's denial of the existence of arbitration agreement in its pleadings before the Jordanian Court, there is no consensus ad idem between the parties to refer the disputes to arbitration and therefore there cannot be any reference to arbitration. 6. Whether there is an arbitration agreement or not, has to be decided with reference to the contract documents and not with reference to any contention raised before a court of law after the dispute has arisen. Reference to pleadings before the Jordanian Courts would have been relevant if the plea was that the arbitration agreement between the parties is contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pared with reference to the supplies made under the contract. When the contract (purchase order) incorporates an arbitration agreement by reference, the invoice need not contain a provision for arbitration. 9. It is true that the petitioner had contended before the Jordanian Court that there was no arbitration agreement between the parties. But the said contention was not accepted and the suit filed by the petitioner has been dismissed on the ground of want of jurisdiction. Thereafter, on reconsidering the matter and taking legal advice, with reference to the contentions of the respondent, the petitioner has now proceeded on the basis that an arbitration agreement exists between the parties. If, on account of mistake or wrong understanding of law, a party takes a particular stand (that is, there is no arbitration agreement), he is not barred from changing his stand subsequently or estopped from seeking arbitration. (See U.P. Rajkiya Nirman Nigam Ltd. v. Indore (P) Ltd., [1996] 2 SCC 667, where the contention based on estoppel was negatived while considering a reserve situation). 10. In regard to limitation, the petitioner submitted that having regard to the acknowledgements c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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