An arbitration agreement must be signed by both parties, and active assent by both parties is required for an agreement to be considered in writing.

JUDGMENT - S.A. BOBDE, J.:---This petition is filed under section 9 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the "Act", for an injunction restraining the respondents from directly or indirectly removing, using, dealing with and/or disposing of the R.C.C. finished pipes for the value of Rs. 35,21,175/- without paying the claim of the petitioner. In the alternative, the petitioner has prayed for a mandatory injunction directing respondent No. 2 Maharashtra Jivan Pradhikaran to withhold a sum of Rs. 35,21,175/- out of the amount payable to respondent No. 1 by respondent No. 2.

2. The petitioner entered into an agreement at Exh. A with the respondent under which the respondent has agreed to take on lease from the petitioner certain machinery for manufacture of R.C.C. pipes. The execution of this agreement is not questioned by the learned Counsel for respondent No. 1. The parties are mainly at issue in respect of Exh. B which is a letter dated 28-12-2001 purportedly addressed by respondent No. 1 to the petitioner. The contention of the learned Counsel for respondent No. 1 that para 3 of this letter which is said to contain the arbitration Clause is inoperative . According to the respondent, this letter is fabricated on certain blank letter-heads which have been signed by the respondent. I have perused the original letter dated 28-12-2001 i.e. Exh. B, which, according to the respondent, is fabricated. There is an unsually long gap between the last sentence of that letter and the signature. That apart, prima facie, it appears unnatural that this letter should be written after a period of about two years from the original agreement for the purpose of introducing a new clause which provides that if the respondent fails to pay the moneys before a certain date, the petitioner would be entitled to recover the same by retaining and selling the R.C.C. pipes lying at site at M.J.P. Compound, Masod Road, Rajura Naka. Amravati. It also appears rather unsual that an arbitration clause is introduced after a period of about two years of the coming into existence of the contract, though it is not impossible. There appears to be a reasonable doubt as to the authenticity of the document containing the arbitration clause. Moreover the respondent has filed several affidavits of several persons to support his contention that the respondent had handed over blank signed letter-heads to the petitioner. Notable among these affidavits is the affidavit of Mr. Anil Pranlal Patel who has stated on oath that he was formerly employed by the petitioner and was entrusted with the affairs of management of the said proprietary firm of the petitioner. He has stated on oath that certain blank letter-heads were obtained by the petitioner from respondent No. 1 in para 8 of the his affidavit.

3. While it is not possible to arrive at a definite finding on the basis of the affidavits that Exh. B which incorporates the arbitration clause is a fabricated or a forged document, the overall circumstances cast a serious doubt on the veracity of that document. Having regard to the fact that it appears that prima facie, there is no arbitration clause and the petitioner does not appear to have approached this Court with clean hands regarding existence of such a clause, I am not inclined to grant any relief to the petitioner under section 9.

4. It may be noted that the Supreme Court in (M/s. Sundaram Finance Ltd. v. M/s. NEPC India Ltd.)1, A.I.R. 1999 S.C. 565 has observed in para 20 as follows :-

"If an application is so made the Court will first have to be satisfied that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration. Once it is so satisfied the Court will have the jurisdiction to pass orders under section 9 giving such interim protection as the facts and circumstances warrant."

5. The next contention raised by Mr. Jayakar, learned Counsel for respondent No. 1, is that even otherwise, there cann

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