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2015 (12) TMI 913 - SUPREME COURT

2015 (12) TMI 913 - SUPREME COURT - TMI - Appointment of an arbitrator - Held that:- There is no manner of doubt that the said MOU dated 17th July, 2013 was executed by and between the petitioner on one hand and respondent No.1 represented by respondent No.2 as its power of attorney holder on the other. Clearly and evidently, sale and purchase of the Helicopter and delivery thereof in terms of the aforesaid MOU dated 17th July, 2013 has not materialized till date. Whether the petitioner is entit .....

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(one month) within which payment was to be made to the respondent No.1 by the respondent No.2 is over; that clause 12 and clause 19 of the MOU dated 4th July, 2013 had been materially altered by changing the period of payment from one month to three months; and further that the power of attorney was forged by the respondent No.2 are questions that cannot be gone into by the court in exercise of jurisdiction under Section 11(6) of the Arbitration Act. These are matters which can be raised before .....

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) No. 37 of 2014 - Dated:- 15-10-2015 - Ranjan Gogoi, J. JUDGMENT 1. This application has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act ) for appointment of an arbitrator to go into the disputes and differences that the petitioner claims to have arisen between the petitioner-Company and the respondents under an Agreement/Memorandum of Understanding dated 17.07.2013. 2. According to the petitioner, the respondent No.1 .....

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The petitioner states that on 17th July, 2013 a MOU was executed between the petitioner and the respondent No.1 represented by its power of attorney i.e. respondent No.2 for sale of the Helicopter in question. The price was agreed upon and an advance amount of ₹ 5,00,000/- (Five Lakhs only) was paid by the petitioner to the respondent No. 1. 3. The petitioner has contended that it was agreed by and between the parties in the MOU dated 17th July, 2013 that the sale of the Helicopter would .....

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ch was responded to by the petitioner on 10th December, 2013, inter alia, informing the respondent No.2 of its failure to comply with clause 4 and clause 13 of the MOU dated 17th July, 2013. Accordingly, legal notice was issued by the petitioner to the respondents. As the petitioner apprehended that the respondents may sell the Helicopter to a third party it had approached the Delhi High Court by means of a petition under Section 9 of the Arbitration Act. Accordingly, interim orders were passed .....

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2 failed to make payment within one month from the date of the MOU (i.e. 4th July, 2013) then the said MOU would stand terminated. It was stated that the respondent No.2 had failed to make such payment and, therefore, the MOU between the respondents dated 4th July, 2013 had become non-est in law. The respondent No.1 has further contended that it is not bound by the MOU dated 17th July, 2013 as it was not a party to the same. It is the further contention of the respondent No.1 that the power of a .....

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the provision of Indian Arbitration and Conciliation Act, 1996 and any other modification or re-enactment thereof. The arbitration proceedings shall be held in New Delhi and the language of arbitration shall be English. 6. There is no manner of doubt that the said MOU dated 17th July, 2013 was executed by and between the petitioner on one hand and respondent No.1 represented by respondent No.2 as its power of attorney holder on the other. Clearly and evidently, sale and purchase of the Helicopt .....

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respondent No.1 seeks to resist the appointment of an arbitrator, namely, that the period contemplated under the MOU dated 4th July, 2013 (one month) within which payment was to be made to the respondent No.1 by the respondent No.2 is over; that clause 12 and clause 19 of the MOU dated 4th July, 2013 had been materially altered by changing the period of payment from one month to three months; and further that the power of attorney was forged by the respondent No.2 are questions that cannot be g .....

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ent, and for that purpose,- (a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and (b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from r .....

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