The main legal point established in the judgment is that the existence of an arbitration agreement can be inferred through a series of correspondence or on the demur of one of the parties to an arbitration proceeding. The Court also emphasized that a mere allegation of fraud does not make a dispute non-arbitrable, and such issues are to be determined by the arbitral tribunal.

JUDGMENT :

1. This is an application filed under section 11 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”) whereby the applicant has prayed for appointment of an arbitral tribunal to adjudicate the disputes and differences between the parties, which have arisen under a Contract for supply inter alia of the computer products, communication device etc.

2. The relevant facts are required to be noted:

The applicant has contended that it is a leading distributor of computer products, communication devices and other hardware and software products. It also deals in I.T. related products and services. The respondent is a proprietory concern in the name and style of “Creative Infotech” and is also engaged in the business of IT hardware and software products. The applicant contends that disputes and differences have arisen between the parties as regards non-payment of applicant’s dues under various invoices as issued by the applicant to the respondent. It is in these circumstances, the applicant has invoked arbitration and has prayed for appointment of an arbitral tribunal.

3. It is the applicant’s case that the arbitration agreement is contained in the “Sales terms and conditions” as accepted by the respondent which is available on its website www.imonline.co.in, which according to the applicant has been consciously accepted by the respondent. It is contended by the applicant that additionally arbitration clause is contained in the invoices raised by the applicant upon the respondent, which are also stated to have been accepted and acted upon. It is the case of the applicant that a standard business procedure is followed by the applicant in entering into contracts with all its customers like the respondent. It is stated that the respondent accepting such procedure had executed a KYC form as prescribed by the applicant. A copy of such KYC is annexed to the application as Exhibit ‘B’ under which the respondent has confirmed the acceptance of the enclosed sales terms and conditions by signing the following declaration:

“I / we hereby confirm acceptance of the enclosed Sales Terms and Conditions, I / we hereby further confirm and certify that the information and attachments given herein are true and accurate, and that any subsequent changes would be duly communicated to Ingram Micro by submission of a fresh form alongwith attachments.”

4. The Sales terms and conditions are also annexed as Exhibit A, which contain Clause 10 as ‘Dispute Resolution Clause’ and Clause 11 as ‘Jurisdiction Clause’, which reads thus:

10. Dispute Resolution:

In case of disputes if any, company and the customer shall try to resolve the dispute(s) amicably. If the parties are unable to reach any resolution, the matter shall be referred to a sole Arbitrator to be appointed by the company. The sole arbitrator appointed by the company shall be deemed to have been accepted by the Customer and the customer undertakes not to object to such appointment. The order passed by such Arbitrator shall be final and binding on the customer and the same shall be deemed to be accepted by customer. Arbitration shall be held at Mumbai at a venue decided by the company and the proceedings shall be in English.

11. Court Jurisdiction:

The Courts at Mumbai shall have exclusive jurisdiction to try disputes under this agreement.

5. It is the applicant’s contention that in pursuance of acceptance of such conditions which are uniformly applicable to all the customers of the applicant, the respondent entered into regular dealings with the applicant and accordingly, from time to time purchase orders were placed by the respondent on the applicant for supply of products as specifically set out in such purchase orders. According to the applicant these purchase orders were required to be executed as per the sales terms and conditions as accepted by the respondent, which contained an arbitration agreement as noted above, under which the parties also agreed to the jurisdiction clause wher