$~53 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Decided on: 21.08.2024 + ARB.P. 533/2022 M/S. DHANLAXMI SALES CORPORATION .....Petitioner Through: Mr. Sachin S. Pujari, Advocate.

versus BOSTON SCIENTIFIC INDIA PVT LTD .....Respondent Through: Mr. Jyoti Kumar Chaudhary, Ms.

Sonali Khanna & Ms. Vanshika Gupta, Advocates.

CORAM:

HON’BLE MR. JUSTICE PRATEEK JALAN PRATEEK JALAN, J. (ORAL)

1. By way of this petition under Section 11 of the Arbitration and Conciliation Act, 1996 [“the Act”], the petitioner seeks appointment of an arbitrator for adjudication of disputes between the parties under a Dealership Agreement dated 01.01.2020 [“the Agreement”].

2. The controversy between the parties relates to existence of an arbitration agreement, which would govern the resolution of disputes between them.

3. I have heard Mr. Sachin S. Pujari, learned counsel for the petitioner, and Mr. Jyoti Kumar Chaudhary, learned counsel for the respondent.

4. The petitioner relies on Clause 7.6 of the Agreement which reads as follows:

“7.6 Dispute resolution by Arbitration. Any and every dispute, controversy or claim between the parties and/or their valid and lawful assignees and successors, including, but not limited to (i) any and every dispute, controversy or claim arising out of or relating to this Agreement and/or its amendments, and (ii) any and every dispute, controversy or claim not arising out of or not relating to this Agreement and of its amendments, shall be referred to the courts of New Delhi.”

5. Mr. Chaudhary resists reference to arbitration, submitting that Clause 7.6 does not constitute an “arbitration agreement”, within the meaning of Section 7 of the Act at all, as no intention to resolve disputes by binding arbitral adjudication can be inferred from the text of the clause. Learned counsel draws my attention to the judgment of the Supreme Court in Jadgish Chander v. Ramesh Chander & Ors., (2007) 5 SCC 719. to submit that the mere use of the word “arbitration”, in the caption or in the heading of the clause, is inadequate to constitute an arbitration agreement. He submits that this position is fortified by reference to Clause 7.9 of the Agreement, which reads as follows:

“7.9 Captions. The captions of provisions in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement.”

6. In response to this argument, Mr. Pujari submits that whether or not a clause constitutes an arbitration agreement must be answered with reference to the intention of the parties. In this context, he submits that the petitioner had invoked arbitration by a communication dated 07.10.2021, relying upon Clause 7.6 of the Agreement. The reply dated 29.11.2021 sent by the respondent, through counsel, clearly rejected the request for reference, but not on the ground that the Agreement did not contain an arbitration clause. In fact, it is clear, according to Mr. Pujari, that the existence of the arbitration clause was admitted by the respondent. He submits that this Court in MS KGPS Mechanical Pvt. Ltd. v. Cinda Engineering & Construction Pvt. Ltd., Judgment dated 22.04.2024 in ARB. P. 143/2024. has emphasised that the correspondence exchanged by the parties can be used as an aid to construction of the clause. In the alternative, he submits that correspondence itself establishes an agreement to refer the disputes to arbitration, within the meaning of Section 7(4)(b) of the Act.

7. Before dealing with these submissions in detail, it may be borne in mind that the task of the referral Court is limited to a prima facie determination with regard to the existence of the arbitration agreement. The judgments of the Supreme Court delineating the scope of adjudication under Section 11 have recently been explained in SBI General Insurance Co. Ltd. v. Krish Spinning, 2024 SCC OnLine SC 1754.. The Court has held that all questions of arbitrability, including final determination of the existence of the arbitrat