MAGIC EYE DEVELOPERS PVT. LTD.versusM/S. GREEN EDGE INFRASTRUCTURE PVT. LTD. & ORS. ETC.

                          [2023] 5 S.C.R. 401                               401


              MAGIC EYE DEVELOPERS PVT. LTD.                                A
                                   v.
  M/S. GREEN EDGE INFRASTRUCTURE PVT. LTD. & ORS.
                       ETC.
                 (Civil Appeal Nos. 3634-37 of 2023)                        B
                            MAY 12, 2023
          [M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
       Arbitration and Conciliation Act, 1996 – Arbitration and
Conciliation Amendment Act, 2015 – s.11(6) – Pre-referral
                                                                            C
jurisdiction – Before the High Court, appellant raised objection
with regard to the existence of an arbitration agreement – High
Court/referral court held that the issue of arbitrability of the dispute
can be addressed by Arbitral Tribunal – Thereafter, High Court
referred the disputes for arbitration and appointed a arbitrator –
On appeal, held: Pre-referral jurisdiction of the court u/s. 11(6) of       D
the Arbitration Act is very narrow and inheres two inquiries – The
primary inquiry is about the existence and the validity of an
arbitration agreement and the Secondary inquiry is with respect to
the non-arbitrability of the dispute – The issue of existence and the
validity of an arbitration agreement has to be to conclusively and
                                                                            E
finally decided by the referral court at the referral stage itself and
the same should not be left to be determined by the Arbitral Tribunal
as it goes to the root of the matter – Furthermore, it is the duty of the
referral court to decide the said issue first conclusively to protect
the parties from being forced to arbitrate when there does not exist
any arbitration agreement and/or when there is no valid arbitration         F
agreement at all – In the instant case, the referral court (High Court)
has not decided the said issue conclusively and finally, which ought
to have been done by it and Court has left it to be decided by the
Arbitral Tribunal – Judgment of High Court quashed and set aside
– Matter remitted back to the High Court.
                                                                            G
      Allowing the appeals, the Court
       HELD: 1. As per the settled position of law, pre-referral
jurisdiction of the court under Section 11(6) of the Arbitration
Act is very narrow and inheres two inquiries. The primary inquiry
is about the existence and the validity of an arbitration agreement,        H
                                  401
402            SUPREME COURT REPORTS                      [2023] 5 S.C.R.


A     which also includes an inquiry as to the parties to the agreement
      and the applicant’s privity to the said agreement. The said matter
      requires a thorough examination by the referral court. The
      Secondary inquiry that may arise at the reference stage itself is
      with respect to the non-arbitrability of the dispute. Both are
      different and distinct. So far as the first issue with respect to the
B
      existence and the validity of an arbitration agreement is
      concerned, as the same goes to the root of the matter, the same
      has to be to conclusively decided by the referral court at the
      referral stage itself. Now, so far as the non-arbitrability of the
      dispute is concerned, even as per the law laid-down by this Court
C     in the case of Vidya Drolia, the court at prereferral stage and
      while examining the jurisdiction under Section 11(6) of the Act
      may even consider prima facie examining the arbitrability of
      claims. As observed, the prima facie review at the reference stage
      is to cut the deadwood and trim off the side branches in
      straightforward cases where dismissal is barefaced and pellucid
D
      and when on the facts and law the litigation must stop at the first
      stage. However, so far as the dispute with respect to the existence
      and validity of an arbitration agreement is concerned and when
      the same is raised at pre-referral stage, the referral court has to
      decide the said issue conclusively and finally and should not leave
E     the said issue to be determined by the arbitral tribunal. The reason
      is that the issue with respect to the existence and validity of an
      arbitration agreement goes to the root of the matter. If the dispute/
      issue with respect to the existence and validity of an arbitration
      agreement is not conclusively and finally decided by the referral
      court while exercising the pre-referral jurisdiction under Section
F
      11(6) and it is left to the arbitral tribunal, it will be contrary to
      Section 11(6A) of the Arbitration Act. It is the duty of the referral
      court to decide the said issue first conclusively to protect the
      parties from being forced to arbitrate when there does not exist
      any arbitration agreement and/or when there is no valid arbitration
G     agreement at all. [Para 5.3][407-C-H; 408-B-C]
            2. The referral court has not decided the said issue
      conclusively and finally and referral court has left it to be decided
      by the arbitral tribunal. The submission on behalf of the contesting
      respondent relying upon some observations made in paragraph
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 MAGIC EYE DEVELOPERS PVT. LTD. v. M/S. GREEN EDGE                       403
            INFRASTRUCTURE PVT. LTD.

22 of the impugned order that the referral court has in fact opined      A
that the four agreements are indisputably interconnected is
concerned, it is required to be noted that the observations made
in paragraph 22 are to be read along with the prayer of the
appellant to appoint different arbitrator(s). However, in paragraph
13, it is specifically observed by the referral court that “this Court
                                                                         B
cannot finally pronounce one way or the other on this aspect.” In
paragraph 14 also, it is specifically observed that the arbitrability
of the dispute raised viz-a-viz the arbitration clause 27.3 of SHA-
1, is an involved issue, can be addressed by the learned arbitral
tribunal. Thus, the referral court has not pronounced anything
finally on the existence and validity of the arbitration agreement       C
which ought to have been done by the referral court. [Para 6]
      Vidya Drolia and Ors. Vs. Durga Trading Corporation
      (2021) 2 SCC 1; N.N. Global Mercantile Private Limited
      Vs. Indo Unique Flame Ltd. and Ors. 2023 SCC Online
      SC 495; NTPC Ltd. Vs. SPML Infra Ltd. 2023 SCC                     D
      Online SC 389; Chloro Controls India Private Limited
      Vs. Severn Trent Water Purification Inc. and Ors. (2013)
      1 SCC 641 : [2012] 13 SCR 402; Olympus
      Superstructures (P) Ltd. Vs. Meena Vijay Khetan (1999)
      5 SCC 651 : [1999] 3 SCR 490 – referred to.
                                                                         E
                       Case Law Reference
(2021) 2 SCC 1                   referred to              Para 2.2
[2012] 13 SCR 402                referred to              Para 4.2
[1999] 3 SCR 490                 referred to              Para 4.2       F
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3634-3637
of 2023
      From the Judgment and Order dated 25.03.2021 of the High Court
of Delhi at New Delhi in ARB. P Nos. 347 of 2019, 753 of 2020 and
OMP (I) (COMM) Nos. 26 of 2019, 114 of 2020.                             G
      Preetesh Kapur, Neeraj Kishan Kaul, Sr. Advs., Shaunak Kashyap,
Nishtha Gupta, M/s. Mitter & Mitter Co., Abhimanyu Bhandari, Aarush
Bhatia, Ms. Rooh-e-hina Dua, Shubhankar Sengupta, Advs. for the
appearing parties.
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404             SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A            The Judgment of the Court was delivered by
             M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned common
      judgment and order passed by the High Court of Delhi at New Delhi in
      respective Arbitration Petitions, by which, the High Court has referred
B     the disputes for arbitration and has appointed the sole arbitrator, the
      original opponent – Magic Eye Developers Pvt. Ltd. has preferred the
      present appeals.
            2. The issue involved in the present appeals is as such in a very
      narrow compass, namely, pre-referral jurisdiction of the Court under
C     Section 11(6) of the Arbitration and Conciliation Amendment Act, 2015.
             2.1 At the outset, it is required to be noted that before the High
      Court the appellant herein specifically raised an objection with regard to
      the existence of an arbitration agreement/clause. It was the case on
      behalf of the appellant that the dispute revolves entirely around MOU-2
D     which does not contain the arbitration clause. However, on the other
      hand, it was the case on behalf of the contesting respondent herein –
      original applicant that other agreement(s) i.e., SHA-1, SHA-2 and MOU-
      1 are interlinked/interconnected with the MOU-2 which contained the
      arbitration clause/agreement and therefore, all the aforesaid agreements
E     are required to be read along with MOU-2.
             2.2 By the impugned common judgment and order and relying
      upon the decision of this Court in the case of Vidya Drolia and Ors.
      Vs. Durga Trading Corporation, (2021) 2 SCC 1 and by observing
      that the arbitrability of the dispute raised, viz-a-viz the arbitration clause
F     27.3 of SHA-1, is an involved issue and the said issue can be addressed
      by the learned Arbitral Tribunal, given the complexity of the transaction
      involved, the High Court has referred the disputes for arbitration and
      has appointed the arbitrator.
            3. Shri Preetesh Kapur, leanred Senior Advocate has appeared
G     on behalf of the appellant and Shri Neeraj Kishan Kaul, learned Senior
      Advocate has appeared on behalf of the contesting respondent – original
      applicant.
            3.1 Shri Preetesh Kapur, learned Senior Advocate appearing on
      behalf of the appellant has taken us to Section 11(6A) of the Arbitration
H     Act and has submitted that post- Arbitration and Conciliation Amendment
 MAGIC EYE DEVELOPERS PVT. LTD. v. M/S. GREEN EDGE                                405
     INFRASTRUCTURE PVT. LTD. [M. R. SHAH, J.]

Act, 2015 by which sub-section (6A) has been added to Section 11 of               A
the Arbitration Act, while deciding the application under Section 11(6) of
the Act and while exercising the pre-referral jurisdiction, the Court has
to consider and examine the existence of an arbitration agreement and it
should not be left to the Arbitral Tribunal.
       3.2 It is vehemently submitted that there is a difference and              B
distinction between the existence and validity of an arbitration clause
and non-arbitrability of the dispute. It is submitted that so far as the issue
with respect to the existence and validity of an arbitration agreement at
the stage of pre-referral jurisdiction under Section 11(6) of the Act, the
Court has to give a specific finding finally on such issue and such an
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issue should not be left to the Arbitral Tribunal. It is submitted that
therefore, the High Court has misapplied and/or misread the decision of
this Court in the case of Vidya Drolia (supra).
        3.3 It is vehemently submitted by Shri Kapur, learned Senior
Advocate appearing on behalf of the appellant that as such it is the duty
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cast upon the referral court to protect the parties from being forced to
arbitrate when the matter is demonstrably non-arbitrable. It is submitted
that the dispute with respect to the existence and validity of an arbitration
agreement/clause goes to the root of the matter and has to be decided
first by the referral court. It is submitted that if ultimately it is held that
there is no existence of an arbitration agreement and/or there is no valid        E
arbitration agreement and the said issue is left to be decided by the
arbitral tribunal in that case the entire exercise by the arbitral tribunal
will be futile. It is submitted that therefore in order to prevent wastage
of public and private resources and taking into consideration Section
11(6A) of the Act, the referral court has to finally conclude the issue
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with respect to the existence and validity of the arbitration agreement.
Reliance is placed upon the recent decision of the Constitution Bench of
this Court in the case of N.N. Global Mercantile Private Limited
Vs. Indo Unique Flame Ltd. and Ors., 2023 SCC Online SC 495.
It is submitted that in the said decision it is observed and held by this
Court that Sans an agreement, there cannot be a reference to arbitration.         G
It is submitted that it is further held that an arbitration agreement must
satisfy the requirements of Section 7(1). It is submitted that it is further
observed and held that the true intention behind the insertion of Section
11(6A) in the Act was to confine the Court, acting under Section 11, to
examine and ascertain about the existence of an arbitration agreement.
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406             SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A           3.4 Shri Kapur, learned Senior Advocate appearing on behalf of
      the appellant has also relied upon the recent decision of this Court in the
      case of NTPC Ltd. Vs. SPML Infra Ltd., 2023 SCC Online SC
      389 (paragraphs 19, 25 and 28).
             4. While opposing the present appeals, Shri Neeraj Kishan Kaul,
B     learned Senior Advocate appearing on behalf of the original applicant
      has vehemently submitted that in the facts and circumstances of the
      case, the High Court has rightly followed the decision of this Court in the
      case of Vidya Drolia (supra) and has rightly referred the disputes
      between the parties to the arbitration.
C             4.1 It is vehemently submitted by Shri Kaul, learned Senior
      Advocate appearing on behalf of the original applicant that in the present
      case all the agreements, namely, SHA-1, SHA-2 and MOU-1 are required
      to be read along with MOU-2. It is submitted that the agreements other
      than MOU-2 do contain the arbitration clause, more particularly, clause
D     27.3 in SHA-1. It is submitted that the High Court in paragraph 22 has
      specifically observed and opined that the four agreements are indisputably
      interconnected. It is submitted that once there is a specific finding given
      that all the agreements are interconnected, the agreement in which there
      is an arbitration clause has to be read along with MOU-2 and therefore,
      the High Court has rightly referred the disputes to the arbitration.
E
             4.2 Shri Kaul, learned Senior Advocate appearing on behalf of
      the original applicant has heavily relied upon the decision of this Court in
      the case of Chloro Controls India Private Limited Vs. Severn Trent
      Water Purification Inc. and Ors., (2013) 1 SCC 641 as well as the
      decision of this Court in the case of Olympus Superstructures (P)
F     Ltd. Vs. Meena Vijay Khetan, (1999) 5 SCC 651 in support of his
      submission that all the four agreements are interconnected and therefore,
      are required to be read altogether.
             5. Heard. The short question which is posed for the consideration
      of this Court is, the jurisdiction of the referral court at pre-referral stage
G     when the issue with respect to the existence and validity of an arbitration
      agreement is raised.
             5.1 While considering the aforesaid issue Section 11(6A) of the
      Arbitration Act which has been added through Arbitration and Conciliation
      Amendment Act, 2015 is required to be read which reads as follows: -
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 MAGIC EYE DEVELOPERS PVT. LTD. v. M/S. GREEN EDGE                                 407
     INFRASTRUCTURE PVT. LTD. [M. R. SHAH, J.]

       “(6-A) The Supreme Court or, as the case may be, the High                   A
       Court, while considering any application under subsection
       (4) or 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.”
       5.2 Thus, post-Arbitration and Conciliation Amendment Act, 2015,            B
the jurisdiction of the court under Section 11(6) of the Act is limited to
examining whether an arbitration agreement exists between the parties
– “nothing more, nothing less”. Thus, as per the Section 11(6A) of the
Act, it is the duty cast upon the referral court to consider the dispute/
issue with respect to the existence of an arbitration agreement.
                                                                                   C
        5.3 At this stage, it is required to be noted that as per the settled
position of law, pre-referral jurisdiction of the court under Section 11(6)
of the Arbitration Act is very narrow and inheres two inquiries. The
primary inquiry is about the existence and the validity of an arbitration
agreement, which also includes an inquiry as to the parties to the
                                                                                   D
agreement and the applicant’s privity to the said agreement. The said
matter requires a thorough examination by the referral court. [paragraph
25 of the decision in the case of NTPC Ltd. (supra)]. The Secondary
inquiry that may arise at the reference stage itself is with respect to the
non-arbitrability of the dispute. Both are different and distinct. So far as
the first issue with respect to the existence and the validity of an arbitration   E
agreement is concerned, as the same goes to the root of the matter, the
same has to be to conclusively decided by the referral court at the referral
stage itself. Now, so far as the non-arbitrability of the dispute is concerned,
even as per the law laid-down by this Court in the case of Vidya Drolia
(supra), the court at pre-referral stage and while examining the
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jurisdiction under Section 11(6) of the Act may even consider prima
facie examining the arbitrability of claims. As observed, the prima facie
review at the reference stage is to cut the deadwood and trim off the
side branches in straightforward cases where dismissal is barefaced
and pellucid and when on the facts and law the litigation must stop at the
first stage. However, so far as the dispute with respect to the existence          G
and validity of an arbitration agreement is concerned and when the same
is raised at pre-referral stage, the referral court has to decide the said
issue conclusively and finally and should not leave the said issue to be
determined by the arbitral tribunal. The reason is that the issue with
respect to the existence and validity of an arbitration agreement goes to
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408             SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A     the root of the matter. As observed by the Constitution Bench in the
      case of N.N. Global Mercantile Pvt. Ltd. (supra) Sans an agreement,
      there cannot be any reference to the arbitration. In the said decision this
      Court has also specifically observed and held that the intention behind
      the insertion of Section 11(6A) in the Act was to confine the Court,
      acting under Section 11, to examine and ascertain about the existence of
B
      an arbitration agreement. We are of the opinion that therefore, if the
      dispute/issue with respect to the existence and validity of an arbitration
      agreement is not conclusively and finally decided by the referral court
      while exercising the pre-referral jurisdiction under Section 11(6) and it is
      left to the arbitral tribunal, it will be contrary to Section 11(6A) of the
C     Arbitration Act. It is the duty of the referral court to decide the said
      issue first conclusively to protect the parties from being forced to arbitrate
      when there does not exist any arbitration agreement and/or when there
      is no valid arbitration agreement at all.
             6. From the impugned common order passed by the referral court,
D     it appears from the observations made in paragraphs 11 to 13 that the
      referral court has not decided the said issue conclusively and finally and
      referral court has left it to be decided by the arbitral tribunal. The
      submission on behalf of the contesting respondent relying upon some
      observations made in paragraph 22 of the impugned order that the referral
      court has in fact opined that the four agreements are indisputably
E
      interconnected is concerned, it is required to be noted that the observations
      made in paragraph 22 are to be read along with the prayer of the appellant
      to appoint different arbitrator(s). However, in paragraph 13, it is
      specifically observed by the referral court that “this Court cannot finally
      pronounce one way or the other on this aspect.” In paragraph 14 also, it
F     is specifically observed that the arbitrability of the dispute raised viz-a-
      viz the arbitration clause 27.3 of SHA-1, is an involved issue, can be
      addressed by the learned arbitral tribunal. Thus, the referral court has
      not pronounced anything finally on the existence and validity of the
      arbitration agreement which ought to have been done by the referral
G     court.
             7. Now, so far as the submission made by Shri Kaul, learned
      Senior Advocate that all the agreements being interlinked and
      interconnected and reliance placed on the decision of this Court in the
      cases of Chloro Controls India Pvt. Ltd. (supra) and Olympus
      Superstructures (P) Ltd. (supra), we do not propose to go into the
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 MAGIC EYE DEVELOPERS PVT. LTD. v. M/S. GREEN EDGE                                 409
     INFRASTRUCTURE PVT. LTD. [M. R. SHAH, J.]

merits as the same has to be considered by the referral court. We have             A
not even permitted learned counsel appearing on behalf of the appellant
to make submission on merits.
       8. In view of the above and for the reasons stated above, the
impugned common judgment and order passed by the High Court in
respective Arbitration Petitions, referring the disputes to arbitration is         B
hereby quashed and set aside. The matter is remitted back to the High
Court/referral court to decide the respective arbitration petitions afresh
and in light of the observations made hereinabove and to decide the
issue conclusively and finally with respect to the existence and validity
of the arbitration agreement. The aforesaid exercise to be completed
within a period of three months from the date of receipt of the present            C
order. However, it is observed that we have not expressed anything on
merits on the existence and validity of the arbitration agreement and on
the four agreements being interconnected/interlinked. It is ultimately for
the High Court/referral court to take an appropriate decision in accordance
with law and on its own merits. Present appeals are accordingly allowed to         D
the aforesaid extent. In the facts and circumstances of the case, there shall
be no order as to costs.

Ankit Gyan                                                      Appeals allowed.
(Assisted by : Abhishek Agnihotri and Aarsh Choudhary, LCRAs)
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