The court has jurisdiction to decide questions of existence, validity, or effect of an arbitration agreement before or during arbitration proceedings, and the conditions required for invoking Section 3 of the Foreign Awards Act must be satisfied.

( 1 ) THIS petition under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961 isproving to be quite thorny. It has witnessed lot of fire-workeven on the question as to whether I should frame issues or notand that if I should, what those issues should be. And, as ifall this was not enough, they expect me) to pass a speakingorder too.

( 2 ) AS we all know issues are framed to shorten the arenaof dispute and to ascertain and pin point where the two sidesdiffer so that no party to the suit is taken by surprise. Sincethe court should not determine an issue which does not ariseon the pleadings, it is essential to the right decision of a casethat appropriate issues are framed. The general principle oflaw seems to be that issues arise when a material propositionof fact or law is affirmed by one party and denied by the other andthat there must be a distinct issue for each material proposition of law or fact affirmed by one party and denied by theother. One thing more. It is primarily the duty of the Judgeto frame the issues in the case.

( 3 ) THE position in law being what has generally been noticed above, let me now proceed to first unfold the facts.

( 4 ) ONE Mr. D. P. Barua who was an executive in the emplovment of I. T. C. Ltd. entered into a so-called Corporationagreement. dated 11/09/1990 purportedly on behalfof the I. TC. Ltd. to purchase the shares held by one Mr C L. Anand and his Associates in the Company known as Toshibaanand Batteries Ltd. I. T. C. Ltd. claims that Mr. D. P. Baruawas never authorised by it to enter into the Agreement, that itwas never placed before the Board of Directors of the Company, that it would not have been sanctioned even otherwiseit being against its interests and that on 19-2-1991 the Boardof Directors of I. T. C. Ltd. had recorded that the Agreementwas ultra-vires and not binding on it. It further claims thateven after the so-called Agreement, negotiations had continuedand that consequently the said Agreement could not be takento be a concluded contract and, in any case, the said Agreement was given a go-bye by the parties and was never actedupon and that even otherwise it was illegal and void beingagainst the laws of the land.

( 5 ) IT appears that the Agreement aforesaid contains an Arbitration Clause as well and that taking advantage of the same,mr. C. L. Anand has taken steps for irrigation of arbitrationproceedings by approaching the International Chamber of Commerece. Hence the petition by I. T. C. Ltd. under Section 33of the Arbitration Act challenging the existence and validityof the Agreement and the Arbitration Clause.

( 6 ) IN response to the petition an application has been moved byrespondent No. 1 Mr. C. L. Anand under Section 3 of the Foreignawards (Recognition and Enforcement) Act, 1961 (hereinaftercalled the Act) alleging that the Agreement had been validly enteredinto, that it had been ratified and acted upon by the petitioner andfurther that it is estopped from challenging its validity, effect andexistence as also the Arbitration Clause and is bound by the sameand that in any case the International Court of Arbitration can gointo the pleas concerning the existence or validity of the agreementto arbitrate.

( 7 ) THE battle-lines are thus clearly drawn. While the petitioneritc Ltd. challenges the validity, effect and existence of the Agreement as also the Arbitration Clause on the ground that Mr. Baruahad no authority, that it was rejected by the Board of Directorswho never acted upon and was even otherwise null and void ananot binding on it, the applicant Mr. C. L. Anand refutes all this.

( 8 ) DURING arguments it was suggested that as the Internationalcourt of Arbitration itself can go into the pleas concerning the existence or validity of the agreement to arbitrate, I should rather refrain from looking into these questions.

( 9 ) AS pointed out by the Supreme Court in Renusagar Power Co. Ltd. v. General Electric Co. (1984) 4 SCC 679 (1), th