BHARAT RASIKLAL ASHRAversusGAUTAM RASIKLAL ASHRA & ANR.

                    [2011] 10 S.C.R. 685


                BHARAT RASIKLAL ASHRA                              A
                               v.
            GAUTAM RASIKLAL ASHRA & ANR.
              (Civil Appeal No. 7334 of 2011)

                      AUGUST 25, 2011
                                                                   B
      [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

      Arbitration and Conciliation Act, 1996 - s. 11 -
 4ppointment ·of arbitrator - Application uls. 1 i - Duty of the
Chief Justice of the Supreme Court I High Court or his             C
designate - Partnership deed dated 12-6-1988 entered
between the appellant, the first respondent and their
grandfather contained an arbitration agreement - Dispute
between appellant and first respondent pursuant to death of
their grandfather - First respondent filed application uls. 11     D
seeking appointment of arbitrator not with reference to the
partnership deed dated 12-6-1998, but with reference to
another partnership deed dated 19-5-2000 allegedly entered
between the appellant and the first respondent - Appellant
denied the existence of the deed dated 19-5-2000 contending        E
that the same was forged and fraudulent and therefore there
 was no question of appointment of arbitrator in terms of the
arbitration clause contained therein - Designate of the Chief
Justice of the High Court, however, allowed the application ul
s. 11 and appointed an arbitrator - Whether the designate of       F
the Chief Justice, in exercise of power uls.11, could appoint
an arbitrator without deciding the question whether there was
an .arbitration agreement between the parties, leaving it open
to be decided by the arbitrator - Held: The question whether
there is arbitration agreement is a jurisdictional issue - Such    G
issue ought to have been decided by the designate of the
Chief Justice and only if the finding was in the affirmative he
could have proceeded to appoint the Arbitrator - Unless the
first respondent was able to make out that there was a valid

                             685                                   H
    686       SUPREME COURT REPORTS              [2011] 10 S.C.R.


A arbitration clause as per the deed dated 19-5-2000, there
    could be no appointment of arbitrator uls. 11 - Since serious
    a/legations of fraud and fabrication were made, the Court
    could not have proceeded to appoint an arbitrator without
    deciding the said issue which related to the very validity of
B   the arbitration agreement - Order of the High Court appointing
    an arbitrator accordingly set aside - Matter remitted to· High
    Court for deciding the questions whether the deed dated 19-
    5-2000 was forged or fabricated and whether there was a valid
    and enforceable arbitration agreement between tf)e parties.
c     The appellant and the first respondent are brothers.
  A deed of partnership dated 12.6.1988 was entered
  amongst the appellant, the first respondent and their
  grandfather 'K' to carry on business, their shares being
  30%, 30% and 40% respectively. The said partnership
D deed provided that all disputes between the partners shall
  be referred to arbitration.
       It was the stand of the first respondent that
  immediately after the death of 'K', fresh partnership deeds
E were executed between him and the appellant on 6.9.1991
  and again on 19.5.2000; and consequently the share of
  the appellant was reduced to 10% while the share of the
  first respondent stood at 90%. The first respondent sent
  letter to the appellant stating that several issues relating
F to the firm had arisen; and that it was necessary to sort
  out those disputes by arbitration. The first respondent
  therefore appointed his arbitrator and called upon the
  appellant to appoint his arbitrator. The appellant replied
  stating that he had not signed the partnership deeds
G dated 6.9.1991 or 19.5.2010 and the said documents were
  forged documents and not binding and therefore the
  question of appointing an arbitrator in terms of the said
  documents did not arise.
          The first respondent thereafter filed application under
H
 BHARAT RASIKLAL ASHRA v. GAUTAM RASIKLAL             687
               ASHRA & ANR.

section 11 of the Arbitration and Conciliation Act, 1996 A
alleging that disputes had arisen between appellant and
first respondent, who were the partners of the second
respondent firm governed by partnership deed dated
19.5.2000; and that clause 12 thereof provided for
settlement of disputes by arbitration. He therefore prayed s
that a sole arbitrator be appointed in terms of the
arbitration agreement contained in the partnership deed
dated 19.5.2000. The designate of the Chief Justice
allowed the application under section 11 of the Act and
appointed a sole arbitrator and left open the question c
whether the two subsequent partnership deeds had been
executed by the appellant or not, for the decision of the .
arbitrator.
     In the instant appeal, the appellant contended that
the Chief Justice or his designate was required to decide    D
the issue relating to the existence of an arbitration
agreement before referring the dispute between the
parties; and since serious questions of fraud, forgery and
fabrication of documents were made out, the Chief
Justice or his designate should not have appointed an        E
arbitrator.
     The question which therefore arose for consideration
was "Where the arbitration agreement between the
parties is denied by the respondent, whether the Chief       F
Justice or his designate, in exercise of power under
section 11 of the Act, can appoint an arbitrator without
deciding the question whether there was an arbitration
agreement between the parties, leaving it open to be
decided by the arbitrator?"
                                                             G
    Allowing the appeal, the Court
    HELD: 1. The preliminary issues that may arise for
consideration in an application under section 11 of the
Arbitration and Conciliation Act, 1996 can be identified     H--
   688     SUPREME COURT REPORTS             .[2011] 10 S.C.R.


A and segregated the into three categories, that is (i) issues
  which the Chief Justice or his Designate is bound to
  decide; (ii) issues which he can also decide, that is
  issues which he may choose to decide; and (iii) issues
  which should be left to the Arbitral Tribunal to decide. The
B issues (first category) which Chief "Justice/his designate
  will have to decide are: (a) Whether the party making the
  application has approached the appropriate High Court
  and (b) Whether there is an arbitrati<>n agreement and
  whether the party who has applied under section 11 of
c the Act, is a party to such an agreement. The issues
  (second category) which the Chief Justice/his designate
  may choose to decide (or leave them to the decision of
  the arbitral tribunal) are: (a) Whether the claim is a dead
  (long barred) claim or a live claim and (b) Whether the
  parties have concluded the c;:ontract/ transaction by
0
  recording satisfaction of their mutual rights and
  obligation or by receiving the final payment without
  objection. The issues (third category) which the Chief
  Justice/his designate should leave exclusively to the
  arbitral tribunal are: (!)Whether a claim made falls within
E the arbitration clause (as for example, a matter which is
  reserved for final decision of a departmental authority
  and excepted or excluded from arbitration) and (ii) merits
  or any claim involved in the arbitration. [Para 8] [695-A-
  H; 696-A-C]
F
       1.2. The question whether there is an arbitration
  agreement has to be decided only by the Chief Justice
  or his designate and should not be left to the decision of
  the arbitral tribunal. This is because the question whether
G there is arbitration agreement is a jurisdictional issue and
  unless there is a valid arbitration agreement, the
  application under section 11 of the Act will not be
  maintainable and the Chief Justice or his designate will
  have no jurisdiction to appoint an arbitrator under section
H 11 of the Act. Only in regard to the issues shown· in the
  BHARAT RASIKLAL ASHRA v. GAUTAM RASIKLAL 689
                ASHRA & ANR.

 second category, the Chief Justice or his designate has      A
 the choice of either deciding them or leaving them to the
 decision of the arbitral tribunal. Even in regard to the
 issues falling under the second category, where
.allegations of forgery or fabrication are made in regard
 to the documents, it would be appropriate for the Chief      B
 Justice or his designate to decide the issue. In view of
 this settled position of law, the issue whether there was
 an arbitration agreement ought to have been decided by
 the designate of the Chief Justice and only if the finding
 was in the affirmative he could have proceeded to            c
 appoint the Arbitrator. [Para 9] [696-D-H]

     S.B.P: & Co. vs. Patel Engineering Ltd. 2005 (8) SCC
618: 2005 (4) Suppl. SCR 688 and National Insurance Co.
Ltd. vs. Boghara Polyfab Pvt. Ltd. 2009 (1) SCC 267: 2008
(13) SCR 638 - relied on.                                     D
     2. It is well settled that an arbitrator can be appointed
only if there is an arbitration agreement in regard to the
contract in question. If there is an arbitration agreement
in regard to contract A and no arbitration agreement in E
regard to contract B, obviously a dispute relating to
contract B cannot be referred to arbitration on the ground
that contract A has an arbitration agreement. Therefore,
where there is an arbitration agreement in the partnership
deed dated 12.6.1988, but the dispute is ·raised and an F
appointment of arbitrator is sought not with reference to
the said partnership deed, but with reference to another
partnership deed dated 19.5.2000, unless the party filing
the application under section 11 of the Act is able to make
out that there is a valid arbitration clause as per the G
contract dated 19.5.2000, there can be no appointment of
an arbitrator. [Paras 10, 11] (697-A-G]

    3. Existence of a valid and enforceable arbitration
agreement is a condition precedent before an arbitrator
can be appointed under section 11 of ·the Act. When           H
   690     SUPREME COURT REPORTS             [2011] 10 S.C.R


A serious allegations of fraud and fabrication are made, it
  is not possible for the Court to proceed to appoint aii
  arbitrator without deciding the said issue which relates
  to the very validity of the arbitration agreement. The fact
  that the allegations of fraud, forgery and fabrication are·
B likely to involve recording of evidence or involve some
  delay in disposal, are not grounds for refusing to
  consider the existence of a valid arbitration agreement.
  The apprehension that such contentions are likely to be
  raised frequently to protract the proceedings under
c section 11 of the Act or to delay the arbitration process,
  thereby defeating the purpose of section 11 of the Act is
  also without· basis. Where agreements have been
  performed in part, such a contention will not be
  entertained. It is only in a very few cases, where an
  agreement .which had not seen the light of the day is
0
  suddenly propounded, or where the agreement had never
  been acted upon or where sufficient circumstances exist
  to doubt the genuineness of the agreement, the Chief
  Justice of his designate will examine this issue. On the
  ground of termination, performance or frustration of the
E contract, arbitration agreement cannot be avoided. The
  legislature has entrusted the power of appointment of an
  arbitrator to the holders of high judicial offices like the
  Chief Justice or Judge of the Supreme Court/High Court,
  with a view that they can identify and effectively deal with
F false or vexatious claims made only to protract the
  proceedings or defeat arbitration. If a party is found to
  have falsely contended that the contract was forged/
  fabricated, the Chief Justice or his designate may subject
  such part to heavy costs so that such false claims are
G discouraged. [Paras 12, 13] [698-B-H; 699-A]
      4. The order of the High Court appointing an
  arbitrator is set aside and the matter is remitted to the
  High Court for deciding the questions whether the deed
H dated 19.5.2000 was forged or fabricated and whether
 BHARAT RASIKLAL ASHRA v. GAUTAM RASIKLAL                    691
               ASHRA & ANR.

there was a valid and enforceable arbitration agreement              A
between the parties. [Para 14) [699·B·C]
                      Case Law Reference:
     2005 (4) Suppl. SCR 688 relied on                  Para 8
                                                                     B
    2008 (13) SCR 638             relied on             Para 8
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7334 of 2011.

    From the Judgment & Order dated 31.03.2011 of the High           c
Court of Judicature at Bombay in Arbitration No. 160 6f 2010.

    L.N. Rao, Pratap Venugopal, Surekha Raman, Namrata
Sood (for K.J. John & Co.) for the Appellant.

    Shyam Divan, Ayaz Billawala, Mahesh Agarwal, E.C.                D
Agrawala, Radhika Gautam for the Respondents.

    The Judgment of the Court was delivered by

     R.V.RAVEENDRAN, J. 1. Leave granted. Heard.
                                                                     E
     2. The appellant and first respondent are brothers. A deed
of partnership dated 12.6.1988 was entered among Mr.. Kanji
Pitamber Ashra and his two grandsons (appellant and first
respondent) to carry on the business under the name and style
of Mis. Kanji Pitamber & Co., their shares being 40%, 30% and        F
30% respectively. Clause 10 provided that death of any partner
shall not dissolve the partnership firm as to the surviving
partners. Clause 11 of the said agreement provided that all
disputes between the partners regarding the rights and liabilities
of partners or in regard to the transactions or accounts of the      G
partnership shall be referred to arbitration.

     3. The appellant is permanent resident of United States
of America. Kanji Pitamber Ashra died on 4.9.1991. According
to appellant, the appellant and first respondent continued the
                                                                     H
    692     SUPREME COURT REPORTS                 [2011] 10 S.C.R.


A business of Mis. Kanji Pitamber & Co., (second respondent
  firm), by increasing their profit and loss ratio from 30% to 50%
  each. The appellant alleges that in or about 2008 he came to
  know that the first respondent was claiming that fresh
  partnership deeds were executed by the parties on 6.9.1991
8 and 19.5.2000. The appellant claims that he did not execute
  any such deeds. He claims that the firm's bankers by their letter
  dated 7.7.2008 have confirmed that the only partnership deed
  of the firm held by them was the deed dated 12.6:1988. He also
  claims that the first respondent, as partner of the second
C respondent firm had sent a letter dated 1. 7.2008 to the Foreign
  Exchange Brokers Association of India (of which the second
  respondent is a member) confirming that the appellant and first
  respondent were the partners as per the deed dated 12.6.1988
  and there was no change in the said partnership deed.

D       4. According to the first respondent, immediately after the
  death of their grandfather, a fresh partnership deed was
  executed on 6.9.1991 and again another deed was executed
  on 19.5.2000 by the appellant and first respondent; that under
  deed dated 6.9.1991, the share of the appellant was reduced
E from 50% to 25% and under the deed dated 19.5.2000, the
  share of the appellant was reduced from 25% to 10% with a
  further condition that if the appellant did not attend to the
  business on account of his commitments elsewhere, the entire
  profit and loss of the business shall belong to or borne by the
F first respondent. The first respondent by letter dated 19.8.2010
  stated that the shares of appellant and first respondent in the
  firm were 10% and 90% respectively; that the appellant had
  abandoned his interest in the firm and showed no inclination
  to participate in its business; that several issues relating to the
G firm had arisen; and that it was necessary to sort out those
  disputes by arbitration. The first respondent therefore appointed
  his arbitrator and called upon the appellant to appoint his
  arbitrator. The appellant sent a reply dated 7.9.2010 stating that
  he had not signed the partnership deeds dated 6.9.1991 or
H 19.5.2010 and the said documents were forged documents
 BHARAT RASIKLAL ASHRA v. GAUTAM RASIKLAL 693
     ASHRA & ANR. [R.V. RAVEENDRAN, J.]

and not binding and therefore the question of appointing an          A
arbitrator in terms of the said documents did not arise.

      5. The first respondent filed an application under section
11 of the Arbitration and Conciliation Act, 1996 ('Act' for short)
alleging that disputes had arisen between appellant and first        8
respondent, who were the partners of the second respondent
firm governed by partnership deed dated 19.5.20qo; and that
clause 12 thereof provided for settlement of disputes by
arbitration. He therefore prayed that the persoo named in his
notice dated 19.8.2010, as his arbitrator, be appointeC:t as the     C
sole arbitrator in terms of the arbitration agreement contained
in the partnership deed dated 19.5.2000. The appellant resisted
the said petition by filing detailed objections denying the
existence of the partnership deeds dated 6.9.1991 and
19.5.2000. The appellant asserted that they were governed by
the partnership deed dated 12.6.1988 and therefore question          D
of appointment of arbitrator in terms of the arbitration clause
contained in the alleged partnership deed dated 19.5.2000 did
not arise.

     6. The learned designate of the Chief Justice made an           E
order dated 11.2.2011 for appointing a Commissioner for
recording the evidence of parties as it was necessary to decide
whether said two partnership deeds dated 6.9.1991 and
 19.5.2000 were valid or not, before a reference could be made
in terms of an arbitration clause contained in the deed dated        F
19.5.2000. However, when the application subsequently came
up for hearing before another designate of the Chief Justice,
the earlier order for recording evidence was ignored and by
order dated 31.3.2011, the application under section 11 of the
Act was allowed and Mr. Ketan Parekh, Advocate, was
                                                                     G
appointed as arbitrator. The learned designate held that a
dispute raised by Vijayaben Kanji Ashra, grandmother of the
parties, claiming a share in the second respondent firm as the
legal heir of Kanji Pitamber Ashra, was the subject matter of
an application under section 11 of the Act in Arbitration
                                                                     H
     694       SUPREME COURT REPORTS                 [2011) 10 S.C.R.


A Application No.1.61/2010 and in that petition, by consent of all
  parties, Mr. Ketan Parekh had already been appointed as
  arbitrator; and that therefore, it will be appropriate to appoint
  the said Mr. Ketan Parekh as the Arbitrator and leave open the
  question whether the two subsequent partnership deeds had
B been executed by the appellant or not, for the decision of the
  arbitrator.

         7. The said order is challenged in this appeal by special
    leave. The appellant submitted that this Court has repeatedly
. C held that the the Chief Justice or his designate will have to
    decide the issue relating to the existence of an arbitration
    agreement before referring the dispute between the parties; and
    that where serious questions of fraud, forgery and fabrication
    of documents have been made out, the Chief Justice or his
    designate should not appoint an arbitrator. Learned counsel for
  D the appellant made it clear that if the first respondent wanted
    appointment of an arbitrator as per the arbitration clause
    contained in the partnership deed dated 12.6.1988 and wanted
    the disputes to be resolved in terms of the said partnership
    deed, the appellant would not have any objection for
  E appointment of an arbitrator. He submitted that appellant's
  ' objection was to appoint an arbitrator under clause 12 of a
    forged and fabricated deed dated 19.5.2000 execution of
    which had been denied by him. Therefore, the following
    question arises for consideration in this appeal:
 F
           "Where the arbitration agreement between the parties is
           denied by the respondent, whether the Chief Justice or his
           designate, in exercise of power under section 11 of the
           Act, can appoint an arbitrator without deciding the question
           whether there was an arbitration agreement between the
G
           parties, leaving it open to be decided by the arbitrator?"

       8. The question is covered by the decisions of this Court
  in S.B.P. & Co. vs. Patel Engineering Ltd. [2005 (8) SCC 618]
  and National Insurance Co. Ltd. vs. Boghara Polyfab Pvt. Ltd.
H [2009 (1) SCC 267]. In S.B.P.& Co., a Constitution Bench of
 . BHARAT RASIKLAL ASHRA v. GAUTAM RASIKLAL 695
     . ASHRA & ANR. [R.V. RAVEENDRAN, JJ
this court held that when an application under section 11 of the       A
Act is filed, it is for the Chief Justice or his designate to decide
wheth.er there is an arbitration agreement, as defined in the Act
and whether the party who has made a request before him, is
a party to such an agreement The said decision also made it
clear as to which issues could be left to the decision of the          B
arbitrator. Following the decision in S.B.P. & Co., this court in
National Insurance Co. Ltd. held as follows :

     "17. Where the intervention of the court is sought for
     appointment of an Arbitral Tribunal under section 11, the C
     duty of the Chief Justice or his designate is defined in SBP
     & Co. This Court identified and segregated the preliminary
     issues that may arise for consideration in an application
     under section 11 of the Act into three categories, that is
     (i) issues which the Chief Justice or his Designate is bound
     to decide; (ii) issues which he can also decide, that is D
     issues which he may choose to decide; and (iii) issues
     which should be left to the Arbitral Tribunal to decide.

     17.1) The issues (first category) which Chief Justice/his
     designate will have to decide are:                                E

      (a)   Whether the party making the application has
            approached the appropriate High Court.

      (b)    Whether there is an arbitration agreement and
             whether the party who has applied under section           F
             11 of the Act, is a party to such an agreement.

     17.2) The issues {second category) which the Chief
     Justice/his designate may choose to decide (or leave
     them to the decision of the arbitral tribunal) are:  G

      (a) · Whether the claim is a dead (long barred) claim or
            a live claim.

      (b)   Whether the parties have concluded the contract/
            transaction by recording satisfaction of their mutual      H
    696          SUPREME COURT REPORTS               [2011] 10 S.C.R.


A                  rights and obligation or by ·receiving the final
                   payment without objection.

          17.3) The issues (third category) which the Chief Justice/
          his designate should leave exclusively to the arbitral tribunal
          are:
B
           (i)     Whether a claim made falls within the arbitration
                   clause (as for example, a matter which is reserved
                   for final decision of a departmental authority and
                   excepted or excluded from arbitration).
c
           (ii)    Merits or any claim involved in the arbitration."

                                                  (emphasis supplied)

        9. It is clear from the said two ·decisions that the question
D whether there is an arbitration agreement has to be decided
  only by the Chief Justice or his designate and should not be
  left to the decision of the arbitral tribunal. This is because the
  question whether there is arbitration agreement is a
  jurisdictional issue and unless there is a valid arbitration
E agreement, the application under section 11 of the Act will not
  be maintainable and the Chief Justice or his designate will have
  no jurisdiction to appoint an arbitrator under section 11 of the
  Act. This Court also made it clear that only in regard to the
  issues shown in the second category, the Chief Justice or his
F designate has the choice of either deciding them or leaving
  them to the decision of the arbitral tribunal. Even in regard to
  the issues falling under the second category, this court made
  it clear that where allegations of forgery or fabrication are made
  in regard to the documents, it would be appropriate for the
G Chief Justice or his designate to decide the issue. In view of
  this settled position of law, the issue whether there was an
  arbitration agreement ought to have been decided by the
  designate of the Chief Justice and only if the finding was in the
  affirmative he could have proceeded to appoint the Arbitrator.
H
 BHARAT RASIKLAL ASHRA v. GAUTAM RASIKLAL 697
     ASHRA & ANR. [R.V. RAVEENDRAN, J.]

    10. Learned counsel for the first respondent submitted that A
the. appellant has already agreed for the appointment of Mr.
Ketan Parekh as the arbitrator in the application filed by their
grandmother under section 11 of the Act, with respect to her
claim for a share in the firm; and the dispute between the two
brothers also being in regard to the extent of the shares in the 8
firm, it would be proper to have it decided by the same
arbitrator. Disagreeing with the said submission, learned
counsel for the appellant submitted that his grandmother's claim
was with reference to the partnership deed dated 12.6.1988
and as the said deed contained an arbitration agreement, he            c
had agreed for appointment of an arbitrator. He submitted that
merely because he had consented for appointment of an
arbitrator in regard to the deed dated 12.6.1988, and had
expressed confidence in the arbitrator, it does not mean that
he should agree for arbitration even where arbitration was 0
claimed in pursuance of a provision contained in a forged and
fabricated document, which was materially· different from the
deed dated 12.6.1988.

     11. It is well settled that an arbitrator can be appointed only
if there is an arbitration agreement in regard to the contract in E
question. If there is an arbitration agreement in regard to
contract A and no arbitration agreement in regard to contract
8, obviously a dispute relating to contract 8 cannot be referred
to arbitration on the ground that contract A has an arbitration
agreement. Therefore, where there is an arbitration agreement F
in the partnership deed dated 12.6.1988, but the dispute is
raised and an appointment of arbitrator is sought not with
reference to the said partnership deed, but with reference to
another partnership deed dated 19.5.2000; unless the party
filing the application under section 11 of the Act is able to make G
out that there is a valid arbitration clause as per the contract
dated 19.5.2000, there can be no appointment of an arbitrator.

    12. The learned counsel for the first respondent next'
submitted that if the Chief Justice or his designate is required       H
    698      SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A  to examine the allegations of fabrication and forgery m.ade by
   a party in regard to the contract containing the arbitration
   agreement, before appointing an arbitrator under section 11 of
   the Act, the proceedings under the said section will cease to
 . be a summary proceedings, and become cumbersome and
B protracted, necessitating recording of evidence, thereby
   defeating the object of the Act. In our considered view this
   apprehension has no relevance or merit. Existence of a valid
   and enforceable arbitration agreement is a condition precedent
   before an arbitrator can be appointed under section 11 of the
c Act. When serious allegations of fraud and fabrication are
   made, it is not possible for the Court to proceed to appoint an
   arbitrator without deciding the said issue which relates to the
   very validity of the arbitration agreement. Therefore the fact that
   the allegations of fraud, forgery and fabrication are likely to
   involve recording of evidence or involve some delay in
D disposal, are not grounds for refusing to consider the existence
   of a valid arbitration agreement.

        13. The apprehension that such contentions are likely to
  be raised frequently to protract the proceedings under section
E 11 of the Act or to delay the arbitration process, thereby
  defeating the purpose of section 11 of the Act is also without
  basis. Where agreements have been performed in part, such
  a contention will not be entertained. It is only in a very few cases,
  where an agreement which had not seen the light of the day is
F suddenly propounded, or where the agreement had never been
  acted upon or where sufficient circumstances exist to doubt the
  genuineness of the agreement, the Chief Justice of his
  designate will examine this issue. This course has repeatedly
  held that on the ground of termination, performance or
G frustration of the contract, arbitration agreement cannot be
  avoided. The legislature has entrusted the power of
  appointment of an arbitrator to the holders of high judicial offices
  like the Chief Justice or Judge of the Supreme Court/High
  Court, with a view that they can identify and effectively deal with
H false or vexatious claims made only to protract the proceedings
 BHARAT RASIKLAL ASHRA v. GAUTAM RASIKLAL                      699
     ASHRA & ANR. [R.V. RAVEENDRAN, J.]

or defeat arbitration. If a party is found to have falsely contended   A
that the contract was forged/fabricated, the Chief Justice or his
designate may subject such part .to heavy coots so that such
false claims are discouraged. Be that as it may.

     14. We therefore allow this appeal, set aside the order of        B
the High Court appointing an arbitrator and remit the matter to
the High Court for deciding the questions whether the deed
dated 19.5.2000 was forged or fabricated and whether there
is a valid and enforceable arbitration agreement between the
parties. Nothing stated herein shall be construed as expression        C
of any opinion ,on the merits of the case,

B.B.B.                                           Appeal allowed.