M/S MAYAVTI TRADING PVT. LTD.versusPRADYUAT DEB BURMAN

                       [2019] 12 S.C.R. 123                          123


              M/S MAYAVTI TRADING PVT. LTD.                          A
                                v.
                  PRADYUAT DEB BURMAN
                  (Civil Appeal No. 7023 of 2019)
                     SEPTEMBER 05, 2019                              B

        [R. F. NARIMAN, R. SUBHASH REDDY AND
                    SURYA KANT, JJ.]
       Arbitration and Conciliation Act, 1996 – Sub-section (6-A)
to s.11 [Amendment Act, 2015] and s.11 [Amendment Act, 2019] –       C
Effect of – Held: After the amendment Act of 2019, s.11(6A) has
been omitted because appointment of arbitrators is to be done
institutionally, in which case the Supreme Court or the High Court
under the old statutory regime are no longer required to appoint
arbitrators and consequently to determine whether an arbitration
                                                                     D
agreement exists.
      Arbitration and Conciliation Act, 1996 – Sub-section (6-A)
to s.11 [Amendment Act, 2015] – Effect of – Held: s.11(6A) is
confined to the examination of the existence of an arbitration
agreement and is to be understood in the narrow sense as has been    E
laid down in the judgment Duro Felguera, S.A. v. Gangavaram Port
Limited (2017) 9 SCC 729 in paras 48 and 59.

     United India Insurance Company Limited v. Antique Art
     Exports Private Limited (2019) 5 SCC 362 – overruled.
                                                                     F
     Duro Felguera, S.A. v. Gangavaram Port Limited, (2017)
     9 SCC 729 : [2017] 10 SCR 285; SBP & Co. v. Patel
     Engineering Ltd. and Anr. (2005) 8 SCC 618 : [2005]
     4 Suppl. SCR 688; ONGC Mangalore Petrochemicals
     Limited v. ANS Constructions Limited and another,
     (2018) 3 SCC 373 : [2018] 2 SCR 598; Garware Wall               G
     Ropes Ltd. v. Coastal Marine Constructions &
     Engineering Ltd., (2019) SCC OnLine SC 515 –
     referred to.

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                               123
124            SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A                             Case Law Reference
      (2019) 5 SCC 362                    overruled              Para 4
      [2017] 10 SCR 285                   referred to            Para 4
      [2005] 4 Suppl. SCR 688             referred to            Para 7
B     [2018] 2 SCR 598                    referred to            Para 8
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7023
      of 2019
            From the Judgment and Order dated 12.03.2019 of the High
      Court at Calcutta in A.P. No. 565 of 2018.
C
            Mukul Rohatgi, Sr. Adv., Utpal Majumdar, Ms. Ranjeeta Rohatgi,
      Ms. Samten Doma, Abhishek Thakral, Sagnik Majumdar, Advs. for the
      Appellant.
            Shyam Divan, Sr. Adv., Ms. Sonia Dube, Ms. Labanyasree Sinha,
D     S. Chakraborty, Ms. Kanchan Yadav, Ms. Surbhi Anand, Bhav Ratan
      (for M/s. Victor Moses & Associates), Advs. for the Respondent.
            The Judgment of the Court was delivered by
            R. F. NARIMAN, J.
            1. Leave granted.
E
           2. We have heard Mr. Mukul Rohatgi, learned Senior Advocate
      appearing for the appellant and Mr. Shyam Divan, learned Senior
      Advocate appearing for the respondent at considerable length.
            3. On the facts of this case, we do not propose to interfere with
      the impugned decision of 12.03.2019 and, therefore, do not find it
F
      necessary to exercise our extraordinary jurisdiction under Article 136 of
      the Constitution of India.
             4. Having said this, however, during the course of argument, a
      recent decision of this Court was pointed out, namely, United India
      Insurance Company Limited vs. Antique Art Exports Private
G     Limited, (2019) 5 SCC 362. In this judgment, purportedly following
      Duro Felguera, S.A. vs. Gangavaram Port Limited, (2017) 9 SCC
      729, this Court held:
               “20. The submission of the learned counsel for the respondent
               that after insertion of sub-section (6-A) to Section 11 of the
H
   M/S MAYAVTI TRADING PVT. LTD. v. PRADYUAT DEB                             125
            BURMAN [R. F. NARIMAN, J.]

         Amendment Act, 2015 the jurisdiction of this Court is denuded       A
         and the limited mandate of the Court is to examine the factum
         of existence of an arbitration and relied on the judgment in
         Duro Felguera, S.A. v. Gangavaram Port Ltd. [(2017) 9
         SCC 729 : (2017) 4 SCC (Civ) 764] The exposition in this
         decision is a general observation about the effect of the amended
         provisions which came to be examined under reference to six         B
         arbitrable agreements (five agreements for works and one
         corporate guarantee) and each agreement contains a provision
         for arbitration and there was serious dispute between the parties
         in reference to constitution of Arbitral Tribunal whether there
         has to be Arbitral Tribunal pertaining to each agreement. In        C
         the facts and circumstances, this Court took note of sub-section
         (6-A) introduced by the Amendment Act, 2015 to Section 11
         of the Act and in that context observed that the preliminary
         disputes are to be examined by the arbitrator and are not for
         the Court to be examined within the limited scope available for
         appointment of arbitrator under Section 11(6) of the Act.           D
         Suffice it to say that appointment of an arbitrator is a judicial
         power and is not a mere administrative function leaving some
         degree of judicial intervention; when it comes to the question
         to examine the existence of a prima facie arbitration agreement,
         it is always necessary to ensure that the dispute resolution
                                                                             E
         process does not become unnecessarily protracted.
         21. In the instant case, prima facie no dispute subsisted after
         the discharge voucher being signed by the respondent without
         any demur or protest and claim being finally settled with accord
         and satisfaction and after 11 weeks of the settlement of claim
         a letter was sent on 27-7-2016 for the first time raising a voice   F
         in the form of protest that the discharge voucher was signed
         under undue influence and coercion with no supportive prima
         facie evidence being placed on record in absence thereof, it
         must follow that the claim had been settled with accord and
         satisfaction leaving no arbitral dispute subsisting under the       G
         agreement to be referred to the arbitrator for adjudication.”
       5. Section 11 (6A) was added by the amendment Act of 2015 and
states as follows:
      “11. (6A) The Supreme Court or, as the case may be, the High
      Court, while considering any application under sub-section (4) or      H
126             SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A           sub-section (5) or sub-section (6), shall, notwithstanding any
            judgment, decree or order of any Court, confine to the examination
            of the existence of an arbitration agreement.”
             6. Mr. Mukul Rohatgi, learned Senior Advocate, has pointed out
      that by an amendment Act of 2019, which has since been passed, this
B     sub-section has now been omitted. Section 3 of the amendment Act of
      2019 insofar as it pertains to this omission has not yet been brought into
      force. The omission is pursuant to a High Level Committee Review
      regarding institutionalization of arbitration in India, headed by Justice B.
      N. Srikrishna. The Report given by this Committee is dated 30th July,
      2017. The omission of the sub-section is not so as to resuscitate the law
C     that was prevailing prior to the amendment Act of 2015. The reason for
      omission of S. 11(6A) is given in the Report as follows:
            “Thus, the 2015 amendments to section 11 are geared towards
            facilitating speedy disposal of section 11 applications by: (a)
            enabling the designation of any person or institution as an appointing
D           authority for arbitrators in addition to the High Court or Supreme
            Court under section 11; (b) limiting challenges to the decision made
            by the appointing authority; and (c) requiring the expeditious
            disposal of section 11 applications, preferably within the prescribed
            60-day time period.
E           While these amendments no doubt facilitate the speedy disposal
            of section 11 applications to a large extent, they do not go all the
            way in limiting court interference. Pursuant to the amendments,
            the appointment of arbitrators under section 11 may be done: (a)
            by the Supreme Court or the High Court; or (b) by a person or
            institution designated by such court in exercise of an administrative
F           power following section 11(6B). In either case, the amendments
            still require the Supreme Court / the High Court to examine whether
            an arbitration agreement exists, which can lead to delays in the
            arbitral process as extensive evidence and arguments may be led
            on the same.
G           The Committee notes that the default procedure for appointment
            of arbitrators in other jurisdictions do not require extensive court
            involvement as in India.
            For instance, in Singapore, the relevant provision of the IAA
            provides that where the parties fail to agree on the appointment
H           of the third arbitrator, within 30 days of the receipt of the first
   M/S MAYAVTI TRADING PVT. LTD. v. PRADYUAT DEB                                  127
            BURMAN [R. F. NARIMAN, J.]

      request by either party to appoint the arbitrator, the appointment          A
      shall be made by the appointing authority (the President of the
      SIAC) by the request of the parties. (See section 9A(2) read with
      sections 2(1) and 8(2), IAA)
      The arbitration legislation of Hong Kong incorporates Article 11
      of the UNCITRAL Model Law relating to the appointment of                    B
      arbitrators. Like in the case of Singapore where the SIAC is the
      appointing authority for arbitrators, the default appointment of
      arbitrator(s) is done by the HKIAC. (Section 13(2) read with
      section 24, AO)
      In the United Kingdom, in the case of default of one party to               C
      appoint an arbitrator, the other party may appoint his arbitrator as
      the sole arbitrator after giving notice of 7 clear days to the former
      of his intention to do so. (Section 17, AA) The defaulting party
      may apply to the court to set aside the appointment. (Section 17(3),
      AA) In case of a failure of the appointment procedure, any party
      may apply to the court to make the appointment or give directions           D
      regarding the making of an appointment. (Section 18(2), AA)
      The Committee recommends the adoption of the practice followed
      in Singapore and Hong Kong in the Indian scenario — apart from
      avoiding delays at court level, it may also give impetus to institutional
      arbitration.                                                                E
      xxx xxx
      Recommendations
      1. In order to ensure speedy appointment of arbitrators, section
         11 may be amended to provide that the appointment of
                                                                                  F
         arbitrator(s) under the section shall only be done by arbitral
         institution(s) designated by the Supreme Court (in case of
         international commercial arbitrations) or the High Court (in
         case of all other arbitrations) for such purpose, without the
         Supreme Court or High Courts being required to determine
         the existence of an arbitration agreement.”                              G
       Thus, it can be seen that after the amendment Act of 2019, Section
11(6A) has been omitted because appointment of arbitrators is to be
done institutionally, in which case the Supreme Court or the High Court
under the old statutory regime are no longer required to appoint arbitrators
and consequently to determine whether an arbitration agreement exists.
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128             SUPREME COURT REPORTS                             [2019] 12 S.C.R.


A           7. Prior to Section 11(6A), this Court in several judgments beginning
      with SBP & Co. vs. Patel Engineering Ltd. and Anr.(2005) 8 SCC
      618 has held that at the stage of a Section 11(6) application being filed,
      the Court need not merely confine itself to the examination of the existence
      of an arbitration agreement but could also go into certain preliminary
      questions such as stale claims, accord and satisfaction having been
B
      reached etc.
             8. In ONGC Mangalore Petrochemicals Limitedvs.ANS
      Constructions Limited and another,(2018) 3 SCC 373, this Court in a
      case which arose before the insertion of Section 11(6A) dismissed a
      Section 11 petition on the ground that accord and satisfaction had taken
C     place in the following terms: -
            “31. Admittedly, no-dues certificate was submitted by the
            contractee company on 21-9-2012 and on their request completion
            certificate was issued by the appellant contractor. The contractee,
            after a gap of one month, that is, on 24-10-2012, withdrew the no-
D           dues certificate on the grounds of coercion and duress and the
            claim for losses incurred during execution of the contract site
            was made vide letter dated 12-1-2013, i.e. after a gap of 3 ½
            (three-and-a-half) months whereas the final bill was settled on
            10-10-2012. When the contractee accepted the final payment in
E           full and final satisfaction of all its claims, there is no point in raising
            the claim for losses incurred during the execution of the contract
            at a belated stage which creates an iota of doubt as to why such
            claim was not settled at the time of submitting final bills that too in
            the absence of exercising duress or coercion on the contractee
            by the appellant contractor. In our considered view, the plea raised
F           by the contractee company is bereft of any details and particulars,
            and cannot be anything but a bald assertion. In the circumstances,
            there was full and final settlement of the claim and there was
            really accord and satisfaction and in our view no arbitrable dispute
            existed so as to exercise power under Section 11 of the Act. The
G           High Court was not, therefore, justified in exercising power under
            Section 11 of the Act.”
            9. The 246th Law Commission Report dealt with some of these
      judgments and felt that at the stage of a Section 11(6) application, only
      “existence” of an arbitration agreement ought to be looked at and not
H     other preliminary issues. In a recent judgment of this Court, namely,
   M/S MAYAVTI TRADING PVT. LTD. v. PRADYUAT DEB                              129
            BURMAN [R. F. NARIMAN, J.]

Garware Wall Ropes Ltd.vs.Coastal Marine Constructions &                      A
Engineering Ltd., (2019 SCC OnLine SC 515), this Court adverted to
the said Law Commission Report and held: -
     “14. The case law under Section 11(6) of the Arbitration Act, as it
     stood prior to the Amendment Act, 2015, has had a chequered
     history. In Konkan Railway Corporation Ltd. v. Mehul                     B
     Construction Co., (2000) 7 SCC 201 [“Konkan Railway I”], it
     was held that the powers of the Chief Justice under Section 11(6)
     of the 1996 Act are administrative in nature, and that the Chief
     Justice or his designate does not act as a judicial authority while
     appointing an arbitrator. The same view was reiterated in Konkan
     Railway Corporation Ltd. v. Rani Construction (P) Ltd., (2002)           C
     2 SCC 388 [“Konkan Railway II”].
     15. However, in SBP & Co. (supra), a seven-Judge Bench
     overruled this view and held that the power to appoint an arbitrator
     under Section is judicial and not administrative. The conclusions
     of the seven-Judge Bench were summarised in paragraph 47 of              D
     the aforesaid judgment. We are concerned directly with sub-
     paragraphs (i), (iv), and (xii), which read as follows:
        “(i) The power exercised by the Chief Justice of the High
        Court or the Chief Justice of India under Section 11(6) of the
        Act is not an administrative power. It is a judicial power.           E

         xxx xxx xxx
        (iv) The Chief Justice or the designated Judge will have the
        right to decide the preliminary aspects as indicated in the earlier
        part of this judgment. These will be his own jurisdiction to          F
        entertain the request, the existence of a valid arbitration
        agreement, the existence or otherwise of a live claim, the
        existence of the condition for the exercise of his power and on
        the qualifications of the arbitrator or arbitrators. The Chief
        Justice or the designated Judge would be entitled to seek the
        opinion of an institution in the matter of nominating an arbitrator   G
        qualified in terms of Section 11(8) of the Act if the need arises
        but the order appointing the arbitrator could only be that of the
        Chief Justice or the designated Judge.
        xxx xxx xxx
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130      SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A     (xii) The decision in Konkan Rly. Corpn. Ltd. v. Rani
      Construction (P) Ltd. [(2002) 2 SCC 388] is overruled.”
      16. This position was further clarified in Boghara Polyfab (supra)
      as follows:
        “22. Where the intervention of the court is sought for appointment
B
      of an Arbitral Tribunal under Section 11, the duty of the Chief
      Justice or his designate is defined in SBP & Co. [(2005) 8 SCC
      618]. 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
C     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.
         22.1. The issues (first category) which the Chief Justice/his
D        designate will have to decide are:
            (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 11 of the Act, is a
E
            party to such an agreement.
         22.2. 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:
F           (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 rights
            and obligation or by receiving the final payment without
G           objection.
         22.3. The issues (third category) which the Chief Justice/his
         designate should leave exclusively to the Arbitral Tribunal are:
         (i) Whether a claim made falls within the arbitration clause (as
         for example, a matter which is reserved for final decision of a
H
M/S MAYAVTI TRADING PVT. LTD. v. PRADYUAT DEB                              131
         BURMAN [R. F. NARIMAN, J.]

    departmental authority and excepted or excluded from                   A
    arbitration).
    (ii) Merits or any claim involved in the arbitration.”
 17. As a result of these judgments, the door was wide open for
 the Chief Justice or his designate to decide a large number of
 preliminary aspects which could otherwise have been left to be            B
 decided by the arbitrator under Section 16 of the 1996 Act. As a
 result, the Law Commission of India, by its Report No. 246
 submitted in August 2014, suggested that various sweeping
 changes be made in the 1996 Act. Insofar as SBP & Co. (supra)
 and Boghara Polyfab (supra) are concerned, the Law                        C
 Commission examined the matter and recommended the addition
 of a new sub-section, namely, sub-section (6A) in Section 11. In
 so doing, the Law Commission recommendations which are
 relevant and which led to the introduction of Section 11(6A) are
 as follows:
                                                                           D
      “28. The Act recognizes situations where the intervention of
    the Court is envisaged at the pre-arbitral stage, i.e. prior to the
    constitution of the arbitral tribunal, which includes sections 8,
    9, 11 in the case of Part I arbitrations and section 45 in the
    case of Part II arbitrations. Sections 8, 45 and also section 11
    relating to “reference to arbitration” and “appointment of the         E
    tribunal”, directly affect the constitution of the tribunal and
    functioning of the arbitral proceedings. Therefore, their
    operation has a direct and significant impact on the “conduct”
    of arbitrations. Section 9, being solely for the purpose of securing
    interim relief, although having the potential to affect the rights     F
    of parties, does not affect the “conduct” of the arbitration in
    the same way as these other provisions. It is in this context the
    Commission has examined and deliberated the working of these
    provisions and proposed certain amendments.
      29. The Supreme Court has had occasion to deliberate upon            G
    the scope and nature of permissible pre-arbitral judicial
    intervention, especially in the context of section 11 of the Act.
    Unfortunately, however, the question before the Supreme Court
    was framed in terms of whether such a power is a “judicial”
    or an “administrative” power – which obfuscates the real issue
    underlying such nomenclature/description as to –                       H
132            SUPREME COURT REPORTS                            [2019] 12 S.C.R.


A                     -the scope of such powers – i.e. the scope of arguments
                   which a Court (Chief Justice) will consider while deciding
                   whether to appoint an arbitrator or not – i.e. whether the
                   arbitration agreement exists, whether it is null and void,
                   whether it is voidable etc.; and which of these it should
                   leave for decision of the arbitral tribunal.
B                     -the nature of such intervention – i.e. would the Court
                   (Chief Justice) consider the issues upon a detailed trial and
                   whether the same would be decided finally or be left for
                   determination of the arbitral tribunal.
              30. After a series of cases culminating in the decision in SBP v.
C           Patel Engineering, (2005) 8 SCC 618, the Supreme Court held
            that the power to appoint an arbitrator under section 11 is a “judicial”
            power. The underlying issues in this judgment, relating to the scope
            of intervention, were subsequently clarified by RAVEENDRAN
            J in National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd.,
            (2009) 1 SCC 267, where the Supreme Court laid down as follows
D           –
            “1. The 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?
E               (b) Whether there is an arbitration agreement and whether the
                party who has applied under section 11 of the Act, is a party to
                such an agreement?
            2. The issues (second category) which the Chief Justice/his
      designate may choose to decide are:
F               (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 rights and obligation
                or by receiving the final payment without objection?
G           3. The issues (third category) which the Chief Justice/his designate
      should leave exclusively to the arbitral tribunal are:
                (a) Whether a claim 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)?
H
M/S MAYAVTI TRADING PVT. LTD. v. PRADYUAT DEB                             133
         BURMAN [R. F. NARIMAN, J.]

    (b) Merits of any claim involved in the arbitration.”                 A
   31. The Commission is of the view that, in this context, the same
 test regarding scope and nature of judicial intervention, as
 applicable in the context of section 11, should also apply to sections
 8 and 45 of the Act – since the scope and nature of judicial
 intervention should not change upon whether a party (intending to        B
 defeat the arbitration agreement) refuses to appoint an arbitrator
 in terms of the arbitration agreement, or moves a proceeding before
 a judicial authority in the face of such an arbitration agreement.
   32. In relation to the nature of intervention, the exposition of the
 law is to be found in the decision of the Supreme Court in Shin          C
 Etsu Chemicals Co. Ltd. v. Aksh Optifibre, (2005) 7 SCC 234,
 (in the context of section 45 of the Act), where the Supreme
 Court has ruled in favour of looking at the issues/controversy only
 prima facie.
   33. It is in this context, the Commission has recommended
 amendments to sections 8 and 11 of the Arbitration and Conciliation      D
 Act, 1996. The scope of the judicial intervention is only restricted
 to situations where the Court/Judicial Authority finds that the
 arbitration agreement does not exist or is null and void. In so far
 as the nature of intervention is concerned, it is recommended that
 in the event the Court/Judicial Authority is prima facie satisfied       E
 against the argument challenging the arbitration agreement, it shall
 appoint the arbitrator and/or refer the parties to arbitration, as the
 case may be. The amendment envisages that the judicial authority
 shall not refer the parties to arbitration only if it finds that there
 does not exist an arbitration agreement or that it is null and void.
 If the judicial authority is of the opinion that prima facie the         F
 arbitration agreement exists, then it shall refer the dispute to
 arbitration, and leave the existence of the arbitration agreement
 to be finally determined by the arbitral tribunal. However, if the
 judicial authority concludes that the agreement does not exist, then
 the conclusion will be final and not prima facie. The amendment
                                                                          G
 also envisages that there shall be a conclusive determination as to
 whether the arbitration agreement is null and void. In the event
 that the judicial authority refers the dispute to arbitration and/or
 appoints an arbitrator, under sections 8 and 11 respectively, such
 a decision will be final and non-appealable. An appeal can be
                                                                          H
134      SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A     maintained under section 37 only in the event of refusal to refer
      parties to arbitration, or refusal to appoint an arbitrator.”
       18. Pursuant to the Law Commission recommendations, Section
      11(6A) was introduced first by Ordinance and then by the
      Amendment Act, 2015. The Statement of Objects and Reasons
B     which were appended to the Arbitration and Conciliation
      (Amendment) Bill, 2015 which introduced the Amendment Act,
      2015 read as follows:
          “STATEMENT OF OBJECTS AND REASONS
      xxx xxx xxx
C
      6. It is proposed to introduce the Arbitration and Conciliation
      (Amendment) Bill, 2015, to replace the Arbitration and Conciliation
      (Amendment) Ordinance, 2015, which inter alia, provides for the
      following, namely:-
         (i) to amend the definition of “Court” to provide that in the
D
         case of international commercial arbitrations, the Court should
         be the High Court;
         (ii) to ensure that an Indian Court can exercise jurisdiction to
         grant interim measures, etc., even where the seat of the
         arbitration is outside India;
E
         (iii) an application for appointment of an arbitrator shall be
         disposed of by the High Court or Supreme Court, as the case
         may be, as expeditiously as possible and an endeavour should
         be made to dispose of the matter within a period of sixty days;

F        (iv) to provide that while considering any application for
         appointment of arbitrator, the High Court or the Supreme Court
         shall examine the existence of a prima facie arbitration
         agreement and not other issues;
         (v) to provide that the arbitral tribunal shall make its award
G        within a period of twelve months from the date it enters upon
         the reference and that the parties may, however, extend such
         period up to six months, beyond which period any extension
         can only be granted by the Court, on sufficient cause;
         (vi) to provide that a model fee Schedule on the basis of which
         High Courts may frame rules for the purpose of determination
H
   M/S MAYAVTI TRADING PVT. LTD. v. PRADYUAT DEB                                135
            BURMAN [R. F. NARIMAN, J.]

          of fees of arbitral tribunal, where a High Court appoints             A
          arbitrator in terms of section 11 of the Act;
          (vii) to provide that the parties to dispute may at any stage
          agree in writing that their dispute be resolved through fast track
          procedure and the award in such cases shall be made within a
          period of six months;                                                 B
          (viii) to provide for neutrality of arbitrators, when a person is
          approached in connection with possible appointment as an
          arbitrator;
          (ix) to provide that application to challenge the award is to be
          disposed of by the Court within one year.                             C

      7. The amendments proposed in the Bill will ensure that arbitration
      process becomes more user-friendly, cost effective and lead to
      expeditious disposal of cases.
      xxx xxx xxx”                                                              D
      19. A reading of the Law Commission Report, together with the
      Statement of Objects and Reasons, shows that the Law
      Commission felt that the judgments in SBP & Co. (supra) and
      Boghara Polyfab (supra) required a relook, as a result of which,
      so far as Section 11 is concerned, the Supreme Court or, as the
                                                                                E
      case may be, the High Court, while considering any application
      under Section 11(4) to 11(6) is to confine itself to the examination
      of the existence of an arbitration agreement and leave all other
      preliminary issues to be decided by the arbitrator.”
      10. This being the position, it is clear that the law prior to the 2015
                                                                                F
Amendment that has been laid down by this Court, which would have
included going into whether accord and satisfaction has taken place, has
now been legislatively overruled. This being the position, it is difficult to
agree with the reasoning contained in the aforesaid judgment as Section
11(6A) is confined to the examination of the existence of an arbitration
agreement and is to be understood in the narrow sense as has been laid          G
down in the judgment Duro Felguera, S.A. (supra) – see paras 48 &
59.
      11. We, therefore, overrule the judgment in United India
Insurance Company Limited (supra) as not having laid down the correct
law but dismiss this appeal for the reason given in para 3 above.               H
136                SUPREME COURT REPORTS                    [2019] 12 S.C.R.


A            12. Mr. Rohatgi now requests us for an extension of the status
      quo order granted by the trial court for a period of one week from today
      so that he may adopt other proceedings. This request is granted.


      Ankit Gyan                                               Appeal dismissed.
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