Issues of non-arbitrability arise in cases with ongoing criminal proceedings or where crucial agreements are disputed.

rendered in the case of N. Radhakrishnan Vs. Maestro Engineers [(2010) 1 SCC

72] . Further appears that issue of non-arbitrability is to be decided at the threshold i.e., at the referral stage. It further appears from paragraph 82 that the issue of non- arbitrability can be raised at three stages; firstly before the court on an application for reference under Section 11 or for stay of the pending judicial proceedings and reference under Section 8 of the Arbitration Act; secondly, before the Arbitral Tribunal during the course of the arbitration proceedings; or thirdly, before the court at the stage of the challenge to the award or its enforcement.

Therefore, what has been contended on behalf of learned counsel for the respondent that it is at the referral stage, the issue of non-arbitrability is required to be looked into, according to considered view of this Court is required to be considered in the facts of the given case.

However, the learned counsel for the petitioner has relied upon the judgment rendered in Pravin Electricals Private Limited Vs. Galaxy Infra and Engineering Private Limited (supra) wherein it has been laid down that deeper consideration of whether an arbitration agreement exists between the parties is required to be left to an arbitrator. But, it is settled position of law that each and every judgment is required to be tested on the touchstone of the factual aspects, as has been laid down by Hon’ble Apex Court in the case of Dr. Subramanian Swamy Vs. State of Tamil Nadu and Others reported in (2014) 5 SCC 75 at paragraph 47 which is quoted hereunder as :- -

“47.It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. “The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.”

19. This Court, after considering both the judgments, i.e., Pravin Electricals Private Limited Vs. Galaxy Infra and Engineering Private Limited (supra) and Vidya Drolia & Ors Vs. Durga Trading Corporation (supra) and looking to the factual aspect of the case in hand, is of the considered view that the instant application is not deserved to be considered at this stage for the following reasons:

(I). The applicants have not approached this Court by filing application under Section 11 (6) of the Act, 1996 with clean hand since interim order dated 24.12.2020 was passed by the NCLT, Kolkata Bench, much before filing of the present arbitration application, but even though filing of case before NCLT, Kolkata Bench was mentioned in the application but passing of order dated 24.12.2020 staying the alleged resignation of respondent herein from the Board of Company and stay of alleged transfer of shares of the respondent, was not mentioned.

Therefore, according to considered view of this Court, the petitioners-applicants ought to have approached this Court with clean hand i.e. by disclosing the fact in entirety but very surprisingly, the reason best known to the petitioners-applicants as to why the

order

dated 24.12.2020 was not brought to the knowledge of this Court, which is a material order wherein alleged resignation of respondent from the Board of Company and alleged transfer of shares of the respondent have been stayed.

II. Subsequently another order was passed on 10^th May, 2021 whereby Mr. Justice RN Prasad, Retired Judge, Patna High Court, was appointed as independent Chairperson of the board of directors of Company and further it was hold that Board of Director shall also consists of Mr. Manoj Kumar Sahu (Respondent No.1) and Mr. Kumar Sachin (Applicant No.2) and all matters shall be decided by majority, but the said order has also not been brought to the