Sasan Power Limited Vs North American Coal Corporation India Private Limited

Page 1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8299 OF 2016 (Arising out of SLP (C) No.33227 of 2015)

Sasan Power Limited … Appellant

Versus

North American Coal Corporation India Private Limited … Respondent

J U D G M E N T

Chelameswar, J.

1. Leave granted.

2. The Appellant herein a company registered under the

laws of India and an American company known as North

American Coal Corporation (A Delaware Corporation)

hereinafter referred to as the ‘American company’ entered into

an agreement dated 1st January, 2009 for mine and

Page 2

development operations hereinafter referred to as

“AGREEMENT-I”.

3. Under AGREEMENT-I, the American company agreed to

provide certain consultancy and other onsite services for a

mine to be operated by the appellant herein in India. Article

XII1 of AGREEMENT-I provides for two things – (1) the

governing law of the agreement, and (2) resolution of disputes,

if any to arise between the parties, by arbitration.

4. Section 12.1 stipulates that (i) the governing law of the

agreement shall be the law of the United Kingdom, (ii) the

conflict of laws principles of England will have no application

while interpreting AGREEMENT-I in accordance with the laws

of the United Kingdom. Section 12.2 stipulates the arbitrator,

seat of arbitration and the procedure to be followed in the

arbitration (i) the arbitration is “to be administered by the

1

Article XII insofar as it is relevant for our purpose reads as follows:-

“Section 12.1 Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with the laws of the United Kingdom without regard to its conflict of laws principles.

Section 12.2 Dispute Resolution; Arbitration.

(a) Any and all claims, disputes, questions or controversies involving Reliance (i.e. SASAN) on the one hand and NAC on the other hand arising out of or in connection with this Agreement (collectively, “Disputes”) which cannot be finally resolved by such parties within 60 (sixty) days of arising by amicable negotiation shall be resolved by final and binding arbitration to be administered by the International Chamber of Commerce (the “ICC”) in accordance with its commercial arbitration rules then in effect (the “Rules”). The place of arbitration shall be London, England.

2

Page 3

International Chambers of Commerce (the ICC)”, (ii) the place

of arbitration shall be London, (iii) such arbitration shall be

conducted in accordance with the commercial arbitration rules

of the ICC, in effect at the time of the arbitration.

5. Article XV Section 15.6 of the AGREEMENT-I provides for

assignment:

“Article XV Section 15.6. Successors and Assigns. This Agreement may be assigned by NAC to any Affiliate of NAC; with the previous written consent of Reliance, which consent shall not be unreasonably withheld. Without the written consent of NAC, which consent shall not be unreasonably withheld, Reliance shall not assign its rights under this Agreement or cause its obligations under this Agreement to be assumed by any other person. No assignment or other transfer shall release the assignor from its obligations or liabilities hereunder. Any assignment in violation of the foregoing shall be null and void ab initio. This agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.”

6. On 1.4.2011, the appellant, the American company and

the respondent herein, which is an Indian Company and a

fully owned subsidiary2 of the American company entered into

an agreement (hereinafter AGREEMENT-II). By the said

agreement, the American company purported to assign3 all its 2 Section 4 of the Companies Act.

3 “ASSIGNMENT AND ASSUMPTION (1) NAC hereby transfers and assigns all of NAC’s rights and obligations under the Agreement to

NACC India. NAC hereby acknowledges that, as provide3d in Section 15.6 of the Agreement, NAC’s transfer and assignment of all of NAC’s rights and obligations under the Agreement to NACC India does not release NAC, as assignor, from its obligations or liabilities under the Agreement.

(2) NACC India hereby accepts the transfer and assignment of all of NAC’s rights and hereby assumes all of NAC’s obligations under the Agreement, and hereby agrees to perform such obligations in accordance with the terms of the Agreement.

3

Page 4

rights and obligations with the consent of the appellant to the

Indian Company with effect from 1.4.2011. A fact which is

significant in the context of the questions argued in this

appeal is that all the three signatories to the AGREEMENT-II

agree that the American company is not relieved of its

obligations and liabilities.

7. Disputes arose between the appellant and the

respondent. The respondent by its letter dated 23.7.2014

purported to terminate the AGREEMENT-I. Thereafter, the

respondent made a request for arbitration on 08.08.2014.

8. The appellant herein filed a suit (Suit No.4A of 2014 in

the Court of the District Judge, Singrauli, Madhya Pradesh)

seeking various reliefs. The reliefs insofar as they are relevant

for our purpose are as follows:-

(i) Pass a decree of declaration in favour of the Plaintiff declaring Section 10.2 of the Agreement dated 01.01.2009 as null, void, inoperative and unenforceable.

(ii) Pass a decree of declaration declaring that the invoices raised by the defendant upon the plaintiff dated defendant’s invoices dated 01.10.2013, 02.01.2014, 01.04.2014, 11.04.2014, 16.01.2014, 11.04.2014, and four invoices dated 21.07.2014 as also Section 10.2 of

CONSENT TO ASSIGNMENT AND ASSUMPTION (3) Reliance hereby consents to NAC’s transfer and assignment of all of NAC’s rights and

obligations under the Agreement to NACC India, and agrees that hereafter NACC India shall have the right to enforce all of NAC’s rights under the Agreement.”

4

Page 5

the Agreement are illegal, null and void and unenforceable.

(iii) Pass a decree of declaration declaring that not even a default having occurred as per Section 8.1, the letter of termination dated 23.7.2014 is illegal, null and void and inoperative and issuance of such a letter amounts to a breach of the contract by the defendant.

(iv) Pass a Decree of Declaration in favour of the Plaintiff and against the Defendant, thereby declaring the Governing Law and Arbitration Agreement being Article XII of the Agreement as null, void, inoperative and unenforceable; and that the Arbitration Agreement has no legal and binding force in the eyes of Law;

(v) Pass a decree for Permanent Injunction, in favour of the Plaintiff and against the Defendant, thereby restraining the Defendant or any other person on its behalf in any manner proceeding or continuing with the arbitration proceedings (bearing No.20432/TO) initiated by Defendant before the ICC in London against the Plaintiff.

(vi) Pass a decree of declaration that Request for Arbitration dated 8.8.2014 is null and void being contrary to Indian law.

9. It is relevant to take note of two facts. There is no prayer

with respect to the AGREEMENT-II. The American company is

not a party to the suit, inspite of the fact that the 1st relief

sought in the suit is for a declaration of the illegality of one of

the clauses of AGREEMENT-I to which only the appellant and

American company are parties

In the said suit, an ex-parte order came to be passed on

11.11.2014 injuncting the ICC from proceeding with the

arbitration.

5

Page 6

10. Thereafter, the respondent filed two applications, one

(I.A. No.5/15) under Order 7 Rule 11(d) CPC read with Section

45 of the Arbitration and Conciliation Act, 1996 (hereinafter

referred to as “1996 Act”) praying that the dispute be referred

to arbitration and the second (I.A. No. 4/15) under Order 39

Rule 4 CPC seeking vacation of the injunction order. The

applications were contested by the appellant unsuccessfully.

The suit was dismissed. The operative portion of the judgment

reads:

“On the basis of the above discussions, the application filed by the defendant/applicant as I.A. No.5 under Order 7 Rule 11-D CPC read with Sec. 45 of the Arbitration and Conciliation Act, 1996 is allowed, resultantly the present plaint of the plaintiff is rejected. I.A. No.4 under Order 39 Rule 4 CPC is also allowed on the same ground on which I.A. No.5 has been allowed. Resultantly, the orders/directions of this Court dated 11.11.2014 and 2.12.14, 7.1.15 and 11.3.15, restraining the defendant from proceeding further with the arbitration proceeding No.20432/T.O. before ICC, London are set aside.”

Aggrieved by the same, the appellant carried the matter to the

High Court of Madhya Pradesh. The High Court dismissed the

appeal and held:

“71. Finally, we may observe that once it is found by us that parties by mutual agreement have decided to resolve their disputes by arbitration and when then on their own, chose to have the seat of arbitration in a foreign country, then in view of the provisions of Section 2(2) of the Act of 1996, Part 1 of the Act, will not apply in a case where the place of arbitration is not India and if Part 1 does not apply and if the agreement in question fulfills the requirement of Section 44 then Part II will apply and when Part II applies

6

Page 7

and it is found that agreement is not null or void or inoperative, the bar created under Section 45 would come into play and if bar created under Section 45 comes into play then it is a case where the Court below had no option but to refer the parties for arbitration as the bar under Section 45 would also apply and the suit itself was not maintainable.

72. Accordingly, in the facts and circumstances, we find no error in the order passed by the learned District Judge, warranting record deration.

73. Appeal is therefore, dismissed. No order on costs.”

Hence the present appeal.

11. One of the grounds of appeal is that the High Court has

erroneously rejected the contention of the appellant that two

Indian companies are prevented from entering into an

agreement for arbitration of their dispute to be seated outside

India. We do not find from the impugned judgment anything

to indicate that such a submission was made before the High

Court. On the other hand, learned counsel for the appellant

specifically submitted during the course of the argument

before us that he is not making that submission before us.

12. The argument before us was confined only to the

question whether two Indian companies can enter into an

agreement with a stipulation that their agreement “be

governed by, construed and interpreted in accordance with the

laws of the United Kingdom”. Various submissions incidental

7

Page 8

to that main submission were made and would be taken note

of at the appropriate place.

13. Parties have filed written submissions after the

conclusion of the arguments before this Court. In the written

submissions filed by the appellant, it is stated that three

questions “of general importance arise for the consideration

and decision of this Court” and they are;

Q.(1) Whether it is permissible under the consolidated Indian law of arbitration (now contained in the Arbitration and Conciliation Act 1996) for two Indian Companies (each incorporated and registered in India) to agree to refer their commercial disputes (that might arise between them) to a binding arbitration, (ad hoc or institutional), with place of arbitration outside India, and with governing law being English law?

Q.(2) Whether two Indian companies, Sasan Power Ltd. and NACC India Ltd., each of whom have been incorporated and registered in India could in law be said to have “made an agreement referred to in Section 44” of the 1996 Act, so as to confer jurisdiction and authority on the competent Court (District Court of Singrauli, Madhya Pradesh) to refer the parties to ICC arbitration in London under Section 45 of the Arbitration and Conciliation Act 1996?

Q.(3) Whether the arbitration agreement in Clause XII was invalid and void for being in breach of Clause (a) of Section 28 of the Indian Contract Act 1872 (not being saved by the Exception Clause), and also void because of the provisions of Section 23 of the Indian Contract Act, 1872, and hence not referable to arbitration under Section 45 of the Arbitration and Conciliation Act, 1996?

8

Page 9

14. We presume that Question No.I insofar as it pertains to

the “place of arbitration” found its way into the written

submission by oversight as the said submission was expressly

given up at the time of the argument. From the questions

projected by the appellant, it can be seen that the entire case

of the appellant is built up on the assumption that the parties

to the arbitration agreement are only two Indian companies.

The substance of the other two questions is that parties herein

(two Indian companies) could not enter into an agreement with

a stipulation that the governing law for the construction and

interpretation of the AGREEMENT-I to be the law of United

Kingdom. The appellant also raise a further question that in

view of the fact that both the parties to the dispute in the

arbitration4 being companies registered in India whether the

respondent could have invoked Section 45 of the 1996 Act and

the courts below were justified in referring the dispute to

arbitration purportedly in discharge of the statutory obligation

under Section 45.

15. The basic prayer in the suit is twofold i.e. for declaration

that Article X Section 10.2 and Article XII of the

4 Admittedly, already initiated on a request of the Respondent on 8.8.2014 – Admitted, See prayers V and VI of the plaint.

9

Page 10

AGREEMENT-I are null and void. The remaining prayers in the

suit are either incidental or ancillary to these two prayers. The

appellant’s grievance regarding the Article X, Section 10.2 is to

be found in paragraphs 39-41.5 According to the copies of the

plaint supplied to us by the appellant, Section 10.2 of

AGREEMENT-I is “contrary to 5.7.3 of the Contract Act”. We

presume 5.7.3 refers Section 73 of the Indian Contract Act,

1872!?

16. Before we examine this question of law, certain

indisputable facts are to be noted:

1) The rights and obligations of the American company

(under AGREEMENT-I) were purported to have been

assigned in favour of the respondent by

AGREEMENT-II. 5 Para 39- “The Plaintiff submits that Section 10.2 of the Association Agreement reproduced hereinafter “Limitation on Damages in no event shall either party be liable to the other for any consequential, incidental, special punitive or indirect damages, including loss of profits, revenue or business opportunities. Reliance acknowledges and agrees that its exclusive remedies against NAC and its direct and indirect owners and Affiliates for any breach or other violation of this Agreement are set forth in Sections 6.3(b) and 8.2 and that in no event shall any damages recoverable against NAC and its direct and indirect owners and Affiliates exceed U.S. $1,000,000” which sets a cap on the damages that may be recovered by the Plaintiff is contrary to the principle that when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Section 10.2 of the Association Agreement is consequently liable to be declared null and void and set aside as being contrary to 5.7.3 of the Contract Act.”

Para 40- “It is submitted that the section 10.2 should be construed as a clause merely to prevent breach of contract, and is not a measure of damages accrued to the Plaintiff. The Section 10.2 since it puts a cap on the liquidated damages is unenforceable, illegal and liable to be declared as null and void.”

Para 41 “Upon a declaration by this Hon’ble Court that Section 10.2 of the said Agreement is null and void, the Plaintiff is entitled to the aforesaid damages. The plaintiff reserves it remedy of seeking damages under Order II rule 2 of Civil Procedure Code and would file proceedings once a aforesaid declaration is made by this Hon’ble Court.”

10

Page 11

2) From a copy of the AGREEMENT-II filed along with

the appeal it is clear that the representatives of all

the 3 companies, i.e., the AMERICAN and the two

INDIAN companies (parties herein) signed the

AGREEMENT-II.

3) Under the AGREEMENT-II it is agreed that such an

assignment does not release the American company

from its obligations or liabilities under

AGREEMENT-I.

4) Apart from that, it was agreed between the parties

that certain clauses of AGREEMENT-I would be

substituted with new clauses6.

Another important feature of AGREEMENT-II is that

the parties agreed – “except as amended by this

amendment, the agreement shall remain in effect as

written”. The expression ‘agreement’ is defined in

AGREEMENT-II as follows:-

“WHEREAS, Reliance and NAC are parties to that certain Association Agreement for Mine Development and Operations, dated as of January 1, 2009, as amended by that certain First Amendment, dated as of September 30, 2009 (as amended, the “AGREEMENT”).” – i.e. AGREEMENT as amended by 30.09.2009 agreement.

6 Section 5.3 and 5.6 of Article V came to be substituted. * See para 6 of the agreement

11

Page 12

In other words, the appellant never raised any objection

regarding the consistency of Section 10.2 of Article X and

Article XII of AGREEMENT-I with the Indian Contract Act

either when the appellant entered into AGREEMENT-II or

when the parties acted upon it.

17. At the outset we would like to examine the legal nature of

the transaction covered by the AGREEMENT-II. It can be seen

from the tenor7 of the AGREEMENT-II that it is a tripartite

agreement. The assignment to be effective between the

American company and the respondent requires the consent of

the appellant in view of Section 15.6 of AGREEMENT-I8. The

consent given by the appellant herein is qualified. The

appellant retained its right against the American company for

the enforcement of obligations and liabilities under

AGREEMENT-I owed by the American company to the

appellant. Therefore, the rights and obligations flowing out of

7 “This Assignment and Assumption Agreement, Consent and Second Amendment to Association Agreement for Mine Development and Operations (this “Amendment”) is made and entered into effective as of April 1, 2011 by and between Sasan Power Limited, an Indian company (“Reliance”), The North American Coal Corporation, a Delaware corporation (“NAC”), and North American Coal Corporation India Private Limited, an Indian company (“NACC India”) that is 99% owned by NAC and 1% owned by TRU Global Energy Services, L.L.C., a wholly-owned subsidiary of NAC.”

8 “NAC hereby acknowledges that, as provide3d in Section 15.6 of the Agreement, NAC’s transfer and assignment of all of NAC’s rights and obligations under the Agreement to NACC India does not release NAC, as assignor, from its obligations or liabilities under the Agreement.”

12

Page 13

AGREEMENT-II between the three parties are interdependent.

What exactly are such rights and obligations and their legal

implications require an elaborate enquiry and no argument in

this behalf has been advanced before us. The appellant’s case

that the transaction covered by the AGREEMENT-II is an

assignment is a question which requires examination. Because

it is neither the nomenclature adopted by the parties to an

agreement nor their understanding of law that determines the

true nature and the legal character of the agreement. The

rights and obligations created under the agreement determine

the legal character of an agreement.

18. An assignment is understood to be the transfer from one

person to another (referred to in law as the assignor and

assignee respectively) the whole or part of an existing right or

interest in intangible property presently owned by the

assignor. The right or interest itself is not extinguished.9

19. It is settled law that there can only be an assignment of

rights arising under a contract but not the “burden of a

contract”.10 In Tolhurst v. The Associated Portland Cement 9 See A.G. Guest and Ting Khai Liew, Guest on the Law of Assignment, 2nd ed. Pg. 1 (Sweet and Maxwell, UK). 10 Jaffer Meher Ali v. Budge-Budge Jute Mills Co., ILR (33) Cal 702 at page 707- “…the rule as regards the assignability of contracts in this country is that the benefit of a contract…as distinguished from the liability thereunder may be assigned…This rule is however subject to two qualifications: first that the

13

Page 14

Manufacturers Limited, [1902] 2 K.B. 660, Collins MR held

as follows-

“It is, I think, quite clear that neither at law nor in equity could the burden of a contract be shifted off the shoulders of a contractor on to those of another without the consent of the contractee … this can only be brought about by the consent of all three, and involves the release of the original debtor … it is equally clear that the benefit of a contract can be assigned”

The Court of Appeal further laid down-

(i) Assignment of the benefit of the contract IS

PERMISSIBLE where the consideration has been

executed and nothing remains but to enforce the

obligation against the party who has received the

consideration; and

(ii) “There is, however, another class of contracts, where there are

mutual obligations still to be enforced and where it is impossible to

say that the whole consideration has been executed. Contracts of

this class cannot be assigned at all in the sense of discharging the

original contractee and creating privity or quasi privity with a

substituted person.”

The decision of the Court of Appeal was affirmed by the House

of Lords11. benefit sought to be assigned is not coupled with any liability or obligation that the assignor is bound to fulfil…that the contract is not one which has been induced by the personal qualifications or considerations as regards the parties to it” 11 Tolhurst v. The Associated Portland Cement Manufacturers Limited, (1903) AC 414

14

Page 15

20. In the facts and circumstances of the case on hand as

indicated by the record, the AGREEMENT-II appears to be

falling under the 2nd of the above mentioned two classes of the

contracts. There is no discharge of the original contractee i.e.,

the American company’s obligations. There are mutual

obligations (arising out of AGREEMENT-I) still to be enforced.

The American company legally cannot claim to have been

discharged from the obligations arising under AGREEMENT-I

and infact has not been discharged. On the other hand, the

appellant by an express covenant under AGREEMENT-II

retained its rights to enforce obligations (arising under

AGREEMENT-I) against the American company (See Footnote

3). AGREEMENT-II perhaps only creates an agency12 where

the American company is the principal and the respondent its

agent or what is described in some cases as sub-contracting or

an arrangement for “vicarious performance”. We hasten to add

that we are not expressing any conclusive opinion on this

question as no arguments in this behalf are advanced by

12 The Indian Contract Act though does not define the expression agency defines agent and principal under Sec. 182.

“Section 182: An ‘agent’ is a person employed to do any act for another, or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the ‘principal’.”

15

Page 16

either side before us. We only conclude that the transaction

covered by AGREEMENT II is not an assignment.

21. However, the appellant’s suit is based on its

understanding that the respondent stepped into the shoes of

the American company. Therefore, both “in fact and law” the

AGREEMENT-II is between the parties to this appeal! (two

Indian companies).

“15. … The Assignment agreement was signed in India. Hence, NACC US novated the Association Agreement in favour of the Defendant. The Defendant stepped in to the shoes of NACC US and, in fact and law, the Assignment agreement13 is one between the Plaintiff and the Defendant. A reference to the Association Agreement hereafter, shall, unless the context otherwise requires, mean the Association Agreement or between the Plaintiff and the Defendant.”14

22. In law, novation means-

“… there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties, the consideration mutually being the discharge of the old contract”15.

23. The pleading is wholly untenable in law for the following

reasons

(i) There cannot be any novation between the American

company and the respondent because prior to the

13 Perhaps it is “association agreement”. Whether it is a typographical error in the copy supplied to us or in the original plaint itself or the draftsman’s error – god only knows. If read as ‘assignment agreement’ the pleading in our opinion makes no sense 14 Paragraph 15 of Plaint RCS No. 4A of 2014. 15 Lord Selborne L.C. in Scarf v. Jardine (1882) 7 App. Cas. 345, 351.

16

Page 17

AGREEMENT-II, there was no agreement

whatsoever between them.

(ii) The respondent cannot be said to have stepped into

the shoes of the American company because the

obligations under AGREEMENT-I owed by the

American company to the appellant were not

discharged by the AGREEMENT-II.

It is on the basis of such a flawed understanding of law

regarding the nature of the AGREEMENT-II the appellant

raises the esoteric proposition whether two Indian Companies

could have stipulated that their agreement be governed by the

laws of the United Kingdom.

24. Adjudication of the dispute raised by the respondent in

the arbitration would necessarily involve examination of the

rights and obligations of the American company under

AGREEMENT-I and AGREEMENT-II. Therefore, it is a dispute

between three parties (of which one is an American company)

with a foreign element i.e. rights and obligations of the

American company. Hence, the stipulation regarding the

governing law cannot be said to be an agreement between only

two Indian companies.

17

Page 18

25. At this stage, we must deal with the submission made on

behalf of the appellant that there was a concession by the

respondent before the High Court that AGREEMENT-II is not a

tripartite agreement but a bipartite agreement16.

What is the number of parties to a document is a

question of fact. When a fact is in issue17, the same is required

to be proved in accordance with the provisions of the Evidence

Act. Disposition of the property whether it be by way of a

contract or grant or any other, if reduced to writing, parties

are prohibited from giving any evidence regarding the terms of

such disposition18 except the document itself or ‘secondary

evidence’19 of that document. Provided that such secondary

16 20.. That apart, Shri A. Krishnan, learned counsel for the respondent, at the very outset had admitted that the findings recorded by the learned District Judge to say that the Assignment Agreement is a tripartite agreement is not correct and the objection in this regard raised by Shri V.K. Tankha, learned Senior Advocate, may be accepted, he agrees that the same is a Bi parte agreement. 17 The Indian Evidence Act, 1872 – Section 3. Facts in issue.– The expression “facts in issue” means and includes – any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. 18 Section 91 – Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents – When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. 19 Section 63 – Secondary evidence. Secondary evidence means and includes.— (1) certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a documents given by some person who has himself seen

it.

18

Page 19

evidence is otherwise admissible under the Evidence Act.

Though oral evidence can be secondary evidence under

Section 63(5), Section 64 mandates that documents must be

proved by primary evidence except in exceptional

circumstances specified under the other provisions of

Evidence Act. Logically, a concession at the bar regarding the

content of a written agreement including the fact as to who are

the parties to the document, in our opinion, does not stand on

any different footing than the oral evidence of the parties. The

concession made by the counsel for the respondent is not

secondary evidence admissible under any of the clauses of

Section 65 of the Evidence Act. Therefore, in our opinion, the

concession made at the bar by the learned counsel (for the

respondent herein) before the High Court does not preclude

the respondent from asserting that AGREEMENT-II is a

tripartite agreement. The tenor and content and the fact that

representatives of the three companies signed the document

cannot be ignored simply on the basis of an uninformed

concession made at the bar.

19

Page 20

26. Therefore, the question whether two Indian companies

could enter into an agreement to be governed by the laws of

another country would not arise in this case.

So long as the obligations arising under the

AGREEMENT-I subsists and the American company is not

discharged of its obligations under the AGREEMENT-I, there is

a ‘foreign element’ therein and the dispute arising therefrom.

The autonomy of the parties in such a case to choose the

governing law is well recognised in law. In fact, Section 28(1)

(b)20 of the 1996 Act expressly recognises such autonomy.

27. We then proceed to examine the question whether the

suit filed by the appellant is maintainable or barred by Section

45 of the 1996 Act as contended by the respondents or any 20 Section 28. Rules applicable to substance of dispute.— (1) Where the place of arbitration is situate in India,—

(a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India; (b) in international commercial arbitration,—

(i) the arbitral tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute; (ii) any designation by the parties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules;

(i i i i failing any designation of the law under clause (a) by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute.

(2) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it do so.

(3) While deciding and making an award, the arbitral tribunal shall, in all cases, take into account the terms of the contract and trade usages applicable to the transaction.

20

Page 21

other provisions of the 1996 Act or any other law, because if a

suit is barred by law the Court is bound to take note of the bar

whether such a question is raised by the parties or not. To

begin with a survey of the history and background of the 1996

Act and its scheme would be helpful in answering the various

questions that arise in this appeal.

28. The history and development of the law of arbitration in

this country was very succinctly captured by this Court in

Bharat Aluminium Company v. Kaiser Aluminium

Technical Services Inc. etc., (2012) 9 SCC 55221 (for short

“BALCO”). It traced out the origin and development of not only

the domestic law of arbitration in India but also the

international arrangements regarding arbitration agreements

and awards made in one country but sought recognition or

enforcement in another country - the Geneva Protocol on

Arbitration Clauses, 1923 and the Geneva Convention on

Execution of Foreign Arbitral Awards, 1927 and the New York

Convention, 1958. It also indicated how two consequential

enactments known as the Arbitration (Protocol and

Convention) Act, 1937 and the Foreign Awards (Recognition

21 See para 32 to 38 of Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. etc. (2012) 9 SCC 552

21

Page 22

and Enforcement) Act, 1961 came to be made by the

Parliament to give effect to the above international

arrangements.

29. All the three international legal instruments dealt with

the various aspects of problems which could arise out of an

international commercial arbitration, such as the recognition

of arbitration agreements entered into and enforcement of

arbitral awards made in countries other than the one in which

the arbitration agreement is entered into or award is sought to

be enforced. Whereas the two enactments dealt22 with the

enforcement of “foreign awards” and matters incidental thereto

in this country.

30. With the increase of international trade and commerce in

the second half of the 20th Century, all the abovementioned

assignments were considered inadequate and, therefore, the

United Nation Commission on International Trade Law

adopted a model law on international arbitration popularly

known as UNCITRAL. The General Assembly of the United

Nations by a resolution dated 11.12.1985 recommended that

“"all States give due consideration to the Model Law on an international

22 Repealed by Section 85 of the 1996 Act.

22

Page 23

commercial arbitration, in view of the desirability of uniformity of the law

of arbitral procedures and the specific needs of international commercial

arbitration practice". Pursuant to the said recommendation, the

1996 Act came to be made by the Parliament. It is in four

parts. Relevant for enquiry are only Parts I and II.

31. Part-II of the 1996 Act is headed “Enforcement of Certain

Foreign Awards”. It contains provisions (Section 44 to 60

divided into two Chapters I and II) dealing with the

enforcement of foreign awards falling under two categories i.e.

New York Convention Award and Geneva Convention Awards.

Sections 44 to 52 (falling under Chapter I) deal with the New

York Convention Awards, the remaining sections (falling under

Chapter-II) deal with Geneva Convention Awards. Both the

classes of Awards are referred to as “foreign awards” in

Chapters I and II of Part-II. Section 44(a)23 and 53(a)24 define

the expression “foreign award” for the purposes of Chapters I

and II respectively to mean an arbitral award in pursuance of

an agreement for arbitration to which the convention set forth

in Ist or protocol and convention set forth in the IInd Schedule

of the Act respectively applies. Such foreign awards are 23 “Section 44 … in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies,” 24 “Section 53(a) in pursuance of an agreement for arbitration to which the Protocol set forth in the Second Schedule applies,”

23

Page 24

deemed to be a decree of a Court25. Various conditions which

render a foreign award unenforceable are specified in Sections

48 and 57 respectively. The other provisions deal with matters

incidental to the enforcement of foreign awards. It is

significant to note that Part II does not deal with any matter

pertaining to any step anterior to the making of an (foreign)

arbitral award.

32. We now deal with the scheme of Part I of the 1996 Act. It

contains provisions which defines an arbitration agreement,

its form and content, the procedure for appointment of

arbitrators, jurisdiction of arbitral tribunals, the procedure to

be followed by the arbitral tribunals, form and content of the

arbitral awards, the forum before which and the procedure by

which the arbitral award can be challenged and all matters

incidental and ancillary to the above-mentioned aspect of the

arbitration.

33. This Court in Bhatia International v. Bulk Trading

S.A. & Another, (2002) 4 SCC 105 considered the question

whether Part 1 of 1996 Act would apply to an arbitration

25 See Sections 49 and 68

24

Page 25

where the place of arbitration is outside India.26 On

consideration of the matter, this Court held as follows:

“32. To conclude, we hold that the provisions of Part 1 would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part 1 would completely apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part 1. In cases of international commercial arbitrations held out of India provisions of Part 1 would apply unless the parties by agreement, express or implied, exclude all or any of its provisions In that case the laws or rules chosen by the parties would prevail. Any provision, in Part 1, which is contrary to or excluded by that law or rules will not apply.”

34. However, in a subsequent judgment in BALCO, a larger

bench of this Court disagreed27 with the conclusions recorded

in Bhatia International and held as follows:

“194. … We are of the considered opinion that Part I of the Arbitration Act, 1996 would have no application to international commercial arbitration held outside India. Therefore, such awards would only be subject to the jurisdiction of the Indian courts when the same are sought to be enforced in India in accordance with the provisions contained in Part II of the Arbitration Act, 1996. In our opinion, the provisions contained in the Arbitration Act, 1996 make it crystal clear that there can be no overlapping

26

The parties had a contractual relationship and the contract contained an arbitration clause which provided that in the event of any dispute the matter would be resolved by arbitration as per the International Chamber of Commerce. Eventually, the dispute arose and the respondent before this Court filed a request for arbitration under ICC. ICC appointed the sole arbitrator and parties agreed that the arbitration be held in Paris. The first respondent thereafter moved an application under Section 9 of the 1996 Act in the Court of Addl District Judge, Indore against the appellant. Such an application was resisted on the ground of maintainability successfully by the appellant upto the High Court. Therefore, the appeal to this Court. 27 Para 195. With utmost respect, we are unable to agree with the conclusions recorded in the judgments of this Court in Bhatia International v. Bulk Trading S.A., (2002) 4 SCC 105 and Venture Global Engg. v. Satyam Computer Services Ltd. (2008) 4 SCC 190. In our opinion, the provision contained in Section 2(2) of the Arbitration Act, 1996 is not in conflict with any of the provisions either in Part I or in Part II of the Arbitration Act, 1996. In a foreign-seated international commercial arbitration, no application for interim relief would be maintainable under Section 9 or any other provision, as applicability of Part I of the Arbitration Act, 1996 is limited to all arbitrations which take place in India. Similarly, no suit for interim injunction simpliciter would be maintainable in India, on the basis of an international commercial arbitration with a seat outside India.”

25

Page 26

or intermingling of the provisions contained in Part I with the provisions contained in Part II of the Arbitration Act, 1996.

196. We conclude that Part I of the Arbitration Act, 1996 is applicable only to all the arbitrations which take place within the territory of India.”

However, such a declaration of law was directed to operate

only prospectively.28

35. In view of the law laid down in BALCO, it is the

submission of the appellant that since the AGREEMENT-I and

AGREEMENT-II are anterior to BALCO judgment, the case on

hand is governed by the law declared by this Court in Bhatia

International (supra).

36. The case of the appellant has been that in view of the

assignment under AGREEMENT-II, the dispute becomes

purely a dispute between two Indian companies (parties to this

appeal). Therefore, any arbitration agreement between such

companies cannot be an agreement to which the (New York)

Convention set forth in the First Schedule of the 1996 Act

applies. If such Convention does not apply, the question of

application of Section 45 does not arise. In view of the

28 Para 197 of the BALCO case reads- “The judgment in Bhatia International [(2002) 4 SCC 105] was rendered by this Court on

13-3-2002. Since then, the aforesaid judgment has been followed by all the High Courts as well as by this Court on numerous occasions. In fact, the judgment in Venture Global Engg. [(2008) 4 SCC 190] has been rendered on 10-1-2008 in terms of the ratio of the decision in Bhatia International [(2002) 4 SCC 105] . Thus, in order to do complete justice, we hereby order, that the law now declared by this Court shall apply prospectively, to all the arbitration agreements executed hereafter.”

26

Page 27

judgment of this Court in Bhatia International, only Part-I of

the 1996 Act applies and, therefore, Interlocutory Application

No.5 of 2015 is liable to be rejected.

37. From a plain reading of Part I of the 1996 Act, having

regard to the scheme of the Act and language of Section 2(2),

Part I of the Act applies to all arbitrations which take place in

India. It is irrelevant whether any one of the parties to such

arbitration agreement is an Indian entity (either a citizen or

body corporate incorporated in India etc.) or not. If two

non-Indian entities agree to have their disputes resolved

through the process of arbitration with seat of arbitration in

India, such an arbitration would obviously be governed by the

provisions of Part I of the Act. By virtue of the law declared

by this Court in the case of Bhatia International (supra),

even if the seat of arbitration is not in India, if one of the

parties to such arbitration is an Indian entity29, Part I would

apply unless parties by an agreement in such a case choose to

29 Though Bhatia’s case did not make it express, the requirement of some legal connection between the arbitration and India either the territory or sovereignty is essential and therefore necessarily implicit in the declaration made in the judgment. Hence the requirement of at least one of the parties to be an Indian entity.

27

Page 28

exclude the application of all or some of the provisions of Part I

by an agreement.30

38. The question, therefore, is whether the arbitration

agreement in question is one falling exclusively under Part-I of

the 1996 Act or falling under both parts of the 1996 Act.

Bhatia International never declared that the arbitration

agreement falling under the scope of Part-I of the 1996 Act

would automatically cease to fall under Part-II of the 1996 Act.

On the other hand there are observations to the contra.31 A

recent judgment of this Court32 clearly recorded that Bhatia

International judgment leads to such a possibility. However,

with reference to the agreements entered into subsequent to

BALCO, this question does not arise. It is only for the

30 Parties to the AGREEMENT I agreed to exclude the application of Part I of the Arbitration Act except Sec. 9 thereof. The relevant part of Art. XII Sec. 12.2 (a) reads as follows: “Save and except the provision under Section 9, the provisions of the Part I of (Indian) Arbitration and Conciliation Act, 1996, as amended (the “Arbitration Act”) shall not apply to the arbitration. 31 See paras 26 and 32 of Bhatia International 32 Union of India v. Reliance Industries Limited & Others (2015) 10 SCC 213

“15. However, this Court in Bhatia International v. Bulk Trading S.A., (2002) 4 SCC 105, resurrected this doctrine of concurrent jurisdiction by holding, in para 32, that even where arbitrations are held outside India, unless the parties agree to exclude the application of Part-I of the Arbitration Act, 1996, either expressly or by necessary implication, the courts in India will exercise concurrent jurisdiction with the court in the country in which the foreign award was made. Bhatia International was in the context of a Section 9 application made under Part I of the 1996 Act by the respondent in that case for interim orders to safeguard the assets of the Indian company in case a foreign award was to be executed in India against it. The reductio ad absurdum of this doctrine of concurrent jurisdiction came to be felt in a most poignant form in the judgment of Venture Global Engg v. Satyam Computer Services Ltd., (2008) 4 SCC 190, by which this Court held that a foreign award would also be considered as a domestic award and the challenge procedure provided in Section 34 of Part I of the 1996 Act would therefore apply. This led to a situation where the foreign award could be challenged in the country in which it is made; it could also be challenged under Part-I of the 1996 Act in India; and could be refused to be recognised and enforced under Section 48 contained in Part II of the 1996 Act.”

28

Page 29

interregnum between the date of the 1996 Act and the date of

the judgment, in BALCO such a question arises.

39. To determine the question, whether an arbitration

agreement governed by the law laid down by Bhatia

International is one which falls exclusively within the

operation of Part-I or one which falls within the operation of

both Part-I and Part-II of the 1996 Act, depends on three

factors

i. who are the parties to the arbitration agreement;

ii. the venue of the arbitration; and

iii. in a foreign seated arbitration where one of the parties is

not an Indian entity whether parties agreed to exclude

the application of Part I.

40. In any case, whether an arbitration agreement is

exclusively governed by the provisions of either Part-I or by

Part-II of the 1996 Act or both (as discussed earlier), judicial

authorities seized of an action in respect of which there exists

an arbitration agreement are bound to refer the dispute

between the parties to arbitration and are precluded under

Sections 8 and 45 from adjudicating the dispute (of course)

subject to the other conditions stipulated in the two sections.

29

Page 30

41. The instant appeal as already noticed arises out of an

order in Interlocutory Application No.5 of 2015 filed by the

respondent herein in the suit filed by the appellant herein. In

the Interlocutory Application, the respondent made two

prayers33, (i) to reject the plaint in the suit filed by the

appellant being barred by law; and (ii) to refer the dispute

between the appellant and the respondent to arbitration as

contemplated under the AGREEMENT.

42. Insofar as the first of the abovementioned two prayers is

concerned, the applicant’s/respondent case is to be found at

para nos.16 and 17 of the application. In substance, the plea

is that the suit is barred by virtue of Section 45 of the 1996

Act and, therefore, the plaint is liable to be rejected. Section

45 reads as follows:

“45. Power of judicial authority to refer parties to arbitration.— Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”

33 “i.. Refer the disputes between the Applicant and the Respondent to Arbitration (bearing ICC No.20432/TO as contemplated under the Agreement;

ii. Reject the Plaint in C.S. (O.S.) 4A of 2014 as being barred by law and pass any other Orders that this Court may deem fit in the interest of justice.”

30

Page 31

It can be seen from Section 45 that a judicial authority in this

country when seized of an action in a matter in respect of

which the parties have made an agreement referred to in

Section 44 “shall refer the parties to arbitration” at the request

of one of the parties to the agreement. The agreement referred

to in Section 45 is one contemplated in Section 44. Section

4434 contemplates an arbitration agreement to which the New

York Convention applies.

43. Section 45, permits an enquiry into the question whether

the arbitration agreement is “null and void, inoperative and

incapable of being performed”.

44. The appellant’s case as evidenced by the plaint in its suit

is that parts of the AGREEMENT-I though created valid rights

and obligations between the (original) parties thereto ceased to

be valid subsequent to the assignment under AGREEMENT-II.

Because (according to the appellant’s understanding) the

parties to AGREEMENT-II are only two companies

incorporated in India. They could not have agreed that the 34 Relevant portion of Section 44 reads as follows:

“44. Definition.— In this Chapter, unless the context otherwise requires, “foreign award” means an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960—

(a) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, (b) x x x .”

31

Page 32

governing law of the agreement should be the law of the

United Kingdom. According to the appellant, such a

stipulation in the agreement would be contrary to the public

policy and hit by Sections 23 of the Indian Contract Act, 1872.

Therefore, the arbitration agreement initiated by the

respondent cannot be proceeded with.

45. It is settled law that an arbitration agreement is an

independent or “self contained” agreement. In a given case, a

written agreement for arbitration could form part of another

agreement, described by Lord Diplock as the “substantive

contract”35 by which parties create contractual rights and

obligations. Notwithstanding the fact that all such rights and

obligations arising out of a substantive contract and the

agreement to have the disputes (if any, arising out of such

substantive contract) settled through the process of arbitration

are contained in the same document, the arbitration

agreement is an independent agreement. Arbitration

agreement/clause is not that governs rights and obligations

35 Aughton Ltd. v. MF Kent Services Ltd. (1991) 57 BLR 1 (CA) “the status of a so-called ‘arbitration clause’ included in a contract of any nature is different

from other types of clauses because it constitutes a ‘self contained contract collateral or ancillary to’ ‘the substantive contract’. These are the words of Lord Diplock in Bremer Vulkan v. South India Shipping [1981] AC 909. It is a self-contained contract, even though it is, by common usage, described as an “arbitration clause”. It can, for example, have a different proper law from the proper law of the contract to which it is collateral. This status of “self-contained contract” exists irrespective of the type of substantive contract to which it is collateral. .

32

Page 33

arising out of the substantive contract: It only governs the way

of settling disputes between the parties.36

46. In our opinion, the scope of enquiry (even) under the

Section 45 is confined only to the question whether the

arbitration agreement is “null and void, inoperative or incapable of

being performed” but not the legality and validity of the

substantive contract.

47. The case of the appellant as disclosed from the plaint is

that Article X, Section 10.2 is inconsistent with some

provisions of the Indian Contract Act, 1872, and hit by Section

23 of the Indian Contract Act (as being contrary to public

policy). It is a submission regarding the legality of the

substantive contract. Even if the said submission is to be

accepted, it does not invalidate the arbitration agreement

because the arbitration agreement is independent and apart

from the substantive contract. All that we hold is that the

scope of enquiry under the Section 45 does not extend to the

examination of the legality of the substantive contract. The

language of the Section is plain and does not admit of any

other construction. For the purpose of deciding whether the

36 See T.W. Thomas & Co. Ltd. v. Portsea Steamship Co. Ltd. (1912) AC 1

33

Page 34

suit filed by the appellant herein is maintainable or impliedly

barred by Section 45 of the 1996 Act, the Court is required to

examine only the validity of the arbitration agreement within

the parameters set out in Section 45, but not the substantive

contract of which the arbitration agreement is a part.

48. This Court in Hindustan Petroleum Corpn. Ltd. v.

Pinkcity Midway Petroleums, (2003) 6 SCC 503, which was

a case where there was a dealership agreement between the

parties for supply of petroleum products to the respondents

before this Court. On the ground that the dealer committed

certain irregularities in business, supply of petroleum

products was suspended by the appellant for a period of 30

days and along with the penalty of Rs.15,000/-. The dealer

filed a civil suit seeking a declaration that the action of the

HPCL was illegal and arbitrary. In the said suit, HPCL filed

an application praying that the dispute be referred to

arbitration in view of the arbitration agreement between the

parties. The said application was dismissed by the civil court

holding that the dispute between the parties was not covered

by the arbitration agreement which finding came to be

34

Page 35

confirmed by the High Court in a Revision. Dealing with the

question, this Court held:

“16. It is clear from the language of the section, as interpreted by the Constitution Bench judgment in Konkan Rly. that if there is any objection as to the applicability of the arbitration clause to the facts of the case, the same will have to be raised before the Arbitral Tribunal concerned. … the courts below ought not to have proceeded to examine the applicability of the arbitration clause to the facts of the case...”

If it is impermissible for a civil court to examine whether a

dispute is really covered by the arbitration agreement, we see

no reason to hold that a civil court exercising jurisdiction

under Section 45 could examine the question whether the

substantive agreement (of which the arbitration agreement is a

part) is a valid agreement. No doubt that HPCL case was in

the context of the bar contained in Section 8 of the 1996 Act.

But the same principles of interpretation apply even for the

interpretation of Section 45.

49. The stipulation regarding the governing law contained in

Article XII Section 12.1 is an independent stipulation

applicable to both the substantive agreement and the

arbitration agreement. Either of the agreements can survive in

an appropriate case without the other. For example, if in a

given case, (of a across border contract) parties can agree

35

Page 36

upon for the governing law but do not have any agreement for

settlement of dispute through arbitration, it would not make

any legal difference to the governing law clause (if otherwise

valid) and bind the parties. The judicial forum before which

the dispute (if any arises) falls for adjudication is normally

obliged to apply such chosen governing law - a principle of

international law recognised by this Court37. Similarly, it is

possible in a given case, parties to a substantive contract in a

cross border transaction agree for the resolution of the

disputes, if any, to arise out of such contract through

arbitration without specifying the governing law. In such case,

it would be the duty of the arbitrator to ascertain the “proper

law” applicable to the case in terms of the established

principles of international law. It is also possible that in a

given case parties agree that the governing law of the

substantive contract be that of one country and the governing

law of the arbitration agreement be of another country38. The

principles of law in this regard are well settled. In all of the

37 Reliance Industries Limited & Another v. Union of India, (2014) 7 SCC 603 “76.4 ….Therefore, the remedy against the award will have to be sought in England, where

the juridical seat is located. However, we accept the submission of the appellant that since the substantive law governing the contract is Indian law, even the courts in England, in case the arbitrability is challenged, will have to decide the issue by applying Indian law viz. the principle of public policy, etc., as it prevails in Indian law.

38 In fact, the transaction which was the subject matter of dispute in Union of India v. Reliance Industries Limited & Others, (2015) 10 SCC 213 is one such. The substantive agreement is governed by the Indian law and the arbitration agreement by the law of England. See Para 2 of the said judgment.

36

Page 37

cases, the validity of either of the clauses/agreements does not

depend upon the existence of the other.

Therefore, the examination of the question of consistency

of Article X Section 10.2 (part of the substantive contract) with

Section 23 of the Contract Act are beyond the scope of the

enquiry while adjudicating the validity of the arbitration

agreement either under Section 45 or Section 8 (amended or

original) of the 1996 Act. Therefore, the submissions of the

appellant in this regard are required to be rejected.

50. We are left with only one question. Relief No.(iv) claimed

in the suit of the appellant is for decree of declaration “against

the defendant”, respondent herein, that Article XII of

AGREEMENT-I is “null and void, inoperative and

unenforceable”.

Obviously Prayer No.(iv) is also based on the assumption

that the dispute is exclusively between the appellant and the

respondent, and therefore, there could not be an agreement

between them for arbitration of their disputes arising out of

the substantive agreement to be governed by the laws of the

United Kingdom. In view of our conclusion that the dispute is

37

Page 38

not exclusively between two parties to the suit, such a relief

could not be given in the suit, because the prayer itself is

misconceived.

51. In view of the above, we see no reason to interfere with

the conclusions recorded by the courts below. The appeal is,

therefore, dismissed with costs.

….………………………….J. (J. Chelameswar)

…….……………………….J. (Abhay Manohar Sapre)

New Delhi; August 24, 2016

38

Page 39

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 8299 OF 2016 (ARISING OUT OF SLP (C) No. 33227/2015)

Sasan Power Limited …….Appellant(s)

VERSUS

North American Coal Corporation India Private Limited ……Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) I have had the advantage of going through the

elaborate, well considered and scholarly draft

judgment proposed by my esteemed Brother Jasti

Chelameswar, J. I entirely agree with the reasoning

and the conclusion, which my erudite Brother has

drawn, which are based on remarkably articulate

process of reasoning. However, having regard to the

39

Page 40

issues involved, which were ably argued by learned

counsel appearing in the case, I wish to add few lines

of concurrence.

2) The question that arises for consideration in this

appeal is whether the Courts below were justified in

allowing the application filed by the respondent

(defendant) under Section 45 of the Arbitration and

Conciliation Act, 1996 (for short "The Act”) read with

Order VII Rule 11 of the Code of Civil Procedure 1908

(in short “the Code”) in a civil suit filed by the

appellant (plaintiff) for declaration and, in

consequence, were justified in dismissing the

appellant's civil suit?

3) The aforementioned question arose in the context

of the facts, which are succinctly stated by my learned

Brother in his judgment. I need not, therefore, repeat

the same facts again in my judgment.

4) Though both the learned senior counsel

appearing for the parties argued several issues

elaborately in support of their respective contentions

but in my view, the aforesaid question including three

40

Page 41

questions posed by the appellant in their written

submissions (quoted in Para 13 by my learned Brother

in his judgment) need to be examined in the first

instance by finding out the true nature and import of

the two agreements referred to as (Agreement-I and

Agreement-II) and relied on by the parties and also

after taking into consideration the law laid down by

this Court in the case of Bhatia International vs.

Bulk Trading S.A. & Ors., (2002) 4 SCC 105 and

Bharat Aluminium Company vs. Kaiser Aluminium

Technical Services Inc. (in short “Balco”), (2012) 9

SCC 552.

5) At the outset, I may take note of the rule of

interpretation, which is applicable while construing

any Deed. The learned Judge Vivian Bose, J. speaking

for the Bench in his inimitable style of writing

succinctly laid down the rule in a leading decision of

this Court in Pandit Chunchun Jha vs. Sheikh

Ebadat Ali & Anr., AIR 1954 SC 345 in following

words:

“Deed – Construction – (T.P. Act, 1882, S. 8)

41

Page 42

Where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended.”

6) Perusal of Agreement-I indicates that it is

executed between the appellant (an Indian company)

and the American Company (NAC) whereas

Agreement-II indicates that it is executed between the

appellant, respondent (NACC–an Indian Company) and

an American Company (NAC). Secondly, the

Agreement-II is styled as "Assignment and Assumption

Agreement".

7) The question that arises for consideration is

whether Agreement-II is a "Deed of Assignment”?

While dealing with the principles relating to transfer of

actionable claims under Section 130 of the Transfer of

Property Act, 1882, the learned author Sir D.F. Mulla

in his celebrated commentary on Transfer of Property

Act (11th Edition page 1028) dealt with the issue of

42

Page 43

"Assignment of Contracts" and explained its meaning

and further explained as to what can be assigned by

the contract.

8) The learned author said, "The benefit of a

contract can be assigned but not the burden, for

the promisor cannot shift the burden of his

obligation without a novation."

9) The learned author quoted a passage from an old

case of Calcutta High Court authored by J Sale, J. in

Jaffer Meher Ali vs. Budge-Budge Jute Mills Co.,

(1906) ILR 33 (Calcutta) 702 which reads as under:

“The rule as regards the assignability of contracts in this country is that the benefit of a contract for the purchase of goods as distinguished from the liability thereunder may be assigned, understanding by the term benefit, the beneficial right or interest of a party under the contract and the right to sue to recover the benefits created thereby. This rule is, however, subject to two qualifications; first, that the benefit sought to be assigned is not coupled with any liability or obligation that the assignor is bound to fulfil, and next that the contract is not one which has been induced by personal qualifications or considerations as regards the parties to it.”

10) In my view, the law laid down by the Calcutta

High Court in the case of Jaffer Meher Ali (supra) is

the correct principle of law on the subject.

43

Page 44

11) As mentioned above, examination of the

Agreement-I would go to show that firstly, Agreement-I

is executed between the appellant and the American

Company (NAC) whereas the Agreement-II is executed

between the appellant, respondent (NACC-India) and

American Company (NAC). In other words,

Agreement-I is a bi-party agreement between an

Indian Company (appellant) and American Company

(NAC) whereas Agreement-II is a tri-partite agreement

between the three companies viz., two Indian

companies (appellant and the respondent) and

third-an American company(NAC); Secondly, the

Agreement-II recognizes transfer of the rights of the

original contractee, i.e., American Company (NAC)

coupled with their obligations specified in the

Agreement-I; Thirdly, the obligations specified in the

Agreement-I are not fully performed much less to the

satisfaction of the parties concerned but are still to be

performed inter se qua each other; Fourthly, by virtue

of the terms of the Agreement-II, the parties are still

under obligation to perform and, if necessary, enforce

44

Page 45

their respective rights and obligations arising out of

Agreement-I against each other depending upon the

nature of breaches when committed by any of the

parties; Fifthly, Agreement-II appears to be in the

nature of amendment to the Agreement-I because

while recognizing the existence of Agreement-I parties

have incorporated some new clauses and added one

new party to the Agreement-II, i.e., the respondent

(NACC-India) herein.

12) Keeping in view the aforementioned facts which,

in my view, emerge from the reading of two

agreements and applying the aforementioned principle

of law, I am of the considered opinion that the

Agreement-II is not a "Deed of Assignment". It is, inter

alia, for the reason that it seeks to transfer interest in

the contract with burden, i.e., obligations of a

contracting party.

13) In my considered opinion, once it is noticed that

firstly, the Agreement-II is a tri-partite agreement

between the appellant-an Indian company, the

respondent-an Indian company (NACC–India) and the

45

Page 46

original contractee party, i.e., an American Company

(NAC) and secondly, the Agreement-II is essentially in

the nature of an amendment to the Agreement-I,

Sections 12.1 and 12.2(a) to (f) of Article XII of the

Agreement-I become a part of Agreement-II.

14) A fortiori, all the three parties to the Agreement-II

are then bound or/and become entitled to take

recourse to Article XII and Sections 12.1, 12.2(a) to (f)

of the Agreement-I for enforcement of their respective

rights and obligations against each other in terms of

respective clauses of Agreement-I and Agreement-II.

15) That apart, in my view, reading of Agreement-I

and Agreement-II also does not indicate that any

novation of contract has emerged inter se parties. It is

for the reason that in order to constitute a “Novation of

contract", it is necessary to prove, in the first place,

that the contract is in existence and second, such

contract is substituted by a new contract either by the

same parties or different parties with a mutual

consideration of discharge of the old contract.

46

Page 47

16) In other words, the novation of contract

comprises of two elements. First is the discharge of

one debt or debtor and the second is the substitution

of a new debt or debtor. The novation is not complete

unless it results in substitution, recession or

extinguishment of the previous contract by the new

contract. Mere variation of some terms of a contract

does not constitute a novation. (See Pollock & Mulla

Indian Contract and Specific Relief Acts, 13th

Edition, pages 1225-1226).

17) As observed supra, execution of Agreement-II has

not resulted in substituting or rescinding or

extinguishing Agreement-I. On the other hand, it

recognized the existence of Agreement-I and resulted

in its amendment by adding some new clauses and

one party.

18) In these circumstances, it is not possible to hold

that as a result of execution of Agreement-II, novation

of contract has come in to be inter se parties.

19) This takes me to examine the legal position

arising in the case, namely, that if one party to the

47

Page 48

arbitration agreement is a foreign company then

whether such agreement becomes an "international

commercial arbitration” within the meaning of Section

2(f) of the Act.

20) In this case, I find that NAC is an American

company and being a party to Agreement-I as also to

Agreement-II along with two Indian companies

(appellant and the respondent), a fortiori, Agreement-I

and Agreement-II become an "international

commercial arbitration" within the meaning of Section

2(f) of the Act which, in clear terms, provides that if

one of the parties to the agreement is a foreign

company then such agreement would be regarded as

"international commercial arbitration".

21) One can not dispute the legal position arising in

the light of law laid down by this Court in Balco’s

case (supra) (See Para 197 at page 648 of the decision)

that the case at hand would be governed by the law

laid down in the case of Bhatia International (supra)

because the case at hand arose prior to Balco regime.

48

Page 49

The law laid down in Bhatia International is

contained in para 32, which reads as under:

“32. To conclude, we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsorily apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply.”

(Emphasis supplied)

22) Article XII of Agreement-I deals with governing

law and dispute resolution. It consists of Sections 12.1

and 12.2(a) to (f). Section 12.1 provides that the

agreement shall be governed by laws of U.K whereas

Section 12.2(a) provides that firstly, all the disputes

shall be resolved by ICC as per ICC rules; Secondly,

the place of arbitration shall be London; and thirdly,

the provisions of part I of the Act will not apply to the

arbitration in question.

23) In my opinion, Sections 12.1 and 12.2(a) of

Article XII are in conformity with the law laid down in

49

Page 50

Bhatia International (supra) and thus satisfy the test

laid down therein. These sections are, therefore,

capable of being given effect to in the manner provided

therein by the parties inter se for deciding their

disputes, which have arisen between them in relation

to Agreement-I and Agreement-II.

24) In the light of foregoing discussion, we need not

consider any other argument of learned counsel for

the parties.

25) Before parting with the case, we consider it

apposite to deal with one issue relating to the exercise

of jurisdiction by the Court under Section 45 of the

Act which reads as under:

“45.Power of judicial authority to refer parties to arbitration.- Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”

26) Mere reading of Section 45 would go to show that

the use of the words "shall" and "refer the parties to

50

Page 51

arbitration" in the section makes it legally obligatory

on the Court to refer the parties to the arbitration once

it finds that the agreement in question is neither null

and void nor inoperative and nor incapable of being

performed. In other words, once it is found that the

agreement in question is a legal and valid agreement,

which is capable of being performed by the parties to

the suit, the Court has no discretion but to pass an

order by referring the parties to the arbitration in

terms of the agreement.

27) In this case, I find that the Trial Court though

allowed the application filed by the respondent

(defendant) under Section 45 of the Act by recording

the findings that the agreement in question is legal

and proper and capable of being performed but it did

not pass any consequential order as required under

Section 45 by referring the parties to the arbitration in

terms of Section 12.2(a) and instead simply dismissed

the suit as not maintainable.

28) In our view, the order thus needs a modification

to this extent only so as to make the order in

51

Page 52

conformity with the requirement of Section 45 of the

Act.

29) In the light of foregoing discussion and subject

to aforesaid modification of the impugned order, I

entirely agree with the reasoning and the conclusion

arrived at by my learned Brother.

…...……..................................J.

[ABHAY MANOHAR SAPRE]

New Delhi; August 24, 2016

52

SASAN POWER LIMITED Vs NORTH AMERICAN COAL CORPORATION INDIA PRIVATE LIMITED

SASAN POWER LIMITED Vs NORTH AMERICAN COAL CORPORATION INDIA PRIVATE LIMITED