An arbitration agreement must be mutual and in writing; mere acceptance of delivery does not constitute agreement to arbitration terms if not clearly established.

JUDGMENT

Vibhu Bakhru, J. (ORAL)

1. The appellant has filed the present appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereafter `the A&C Act') impugning an order dated 19.07.2022 (hereafter `the impugned order') passed by the learned Single Judge. By the impugned order, the learned Commercial Court had allowed the respondent's application under Section 34 of the A&C Act [being O.M.P. (Comm.) 41/2022 captioned Daksh Enterprises v. M/s Hetampuria Tax Fab] assailing an arbitral award dated 16.03.2020 (hereafter `the impugned award') passed by an Arbitral Tribunal comprising of three members constituted by Delhi Hindustani Mercantile Association (Registered), Chandni Chowk, Delhi (Panel-II).

2. The respondent had challenged the impugned award on various grounds including that it was wholly without jurisdiction as there was no Arbitration Agreement between the parties. The learned Commercial Court had accepted the aforesaid contention and accordingly, set aside the impugned award.

3. The appellant claims that an Arbitration Agreement existed between the parties as both the invoices issued and the delivery of goods receipt (hereafter "Delivery Challan") expressly provided that the dispute shall be resolved by arbitration. The learned Commercial Court had found that a clause set out in the Delivery Challan would not, in the given facts, constitute an Arbitration Agreement between the parties. Thus, the limited question to be addressed is whether the learned Commercial Court could be faulted in returning the said finding.

4. The appellant, Mr. Amit Aggarwal, is a sole proprietor of M/s Hetampuria Tax Fab. He is, inter alia, engaged in the business of sale and supply of fabrics/shirts/textiles material under the name and style of his proprietorship concern (M/s Hetampuria Tax Fab). The appellant claims that during the course of his business, he had supplied goods to the respondent under various invoices and challans. He claims that the invoices raised contained the terms of the contract of sale between the parties and specifically referred to an Arbitration Agreement.

5. He claims that during the year 2016-17, he had supplied goods of a value of Rs.19,42,618/- under various invoices, the last being dated 01.10.2016. The respondent had received the goods in good condition, however, had failed to discharge the invoiced amounts in entirety. He claims that against the goods supplied, the appellant had received a sum of Rs.12,74,200/- and the remaining amount of Rs.6,68,518/- remained unpaid. The appellant's claim before the Arbitral Tribunal was, essentially, for the balance amount of Rs.6,68,518/-, which according to the petitioner, was due and payable and interest at the rate of 24% per annum which the petitioner quantified at Rs.3,60,999/- till 30.07.2019.

6. The invoices raised by the appellant included the following notation on the bottom left corner of the invoice:

"Declaration

(1). Subject to DELHI HINDUSTANI MERCANTILE ASSOCIATION delhi jurisdiction. (2). Sold and dispatched goods will not be taken back. (3) Payment should be made by payees accounts cheque or draft only. (4). Interest will be charged @ 24% after due date. (5). No complaint will be accepted once the goods are out. (6). No washing guarantee

For Hetampuria Tex Fab
S/d
Authorised Signatory"

7. It is ex facie clear that the above notation cannot be considered as an Arbitration Agreement. There is no statement that the parties