Arbitration agreements must satisfy the mandates of contract law to be enforceable; failure to prove existence leads to dismissal of arbitration applications.

COMMON ORDER:

Ms. D.Neeharika Reddy, learned counsel for the applicant.

Mr. V.Ravinder Rao, learned Senior Counsel representing Ms. Sunita Nawandar, learned counsel for the respondent.

2. By means of these applications under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’), the applicant seeks appointment of an arbitrator.

3. Facts giving rise to filing of these applications briefly stated are that the applicant is a Partnership Firm registered under the provisions of the Partnership Act, 1932. The applicant is engaged in the business of construction works and executes contracts for civil engineering works. The respondent is a Private Limited company and is engaged in the business of procuring civil engineering works by tendering with Public Works Department. The respondent gets the work executed by engaging specialists in the field by engaging the sub contractor.

4. The case of the applicant is that the respondent has engaged the applicant as sub-contractor by executing sub- contract agreement for 9 out of 10 works. It is the case of the applicant that in respect of Telugu Ganga Project awarded by the erstwhile Government of Andhra Pradesh, the sub-contract between the parties can be inferred from the correspondence and business communication. As per the averments made in the applications, sub-contract agreements in respect of works in question were executed on 3rd of October, 2011 between the parties.

5. Clause 12 of the aforesaid agreements executed between the parties contains the arbitration clause. The dispute had arisen between the parties. The applicant sent a legal notice dated 05.05.2022 by which a sums of Rs.27,43,08,423/- and Rs.23,56,78,115/- were demanded.

The respondent submitted a reply on 08.05.2022 in which claim of the applicant was denied.

6. The applicant thereupon sent a notice dated 14.06.2022 seeking appointment of an arbitrator. However, the respondent did not agree for appointment of arbitrator.

Hence, these applications.

7. Learned counsel for the applicant submitted that the respondent is the signatory to the agreements dated 03.10.2011 and the issue of validity of the arbitration agreement can be examined by the arbitrator under Section 16 of the Act. It is further submitted that the contention that the agreement is forged and fabricated is an afterthought by the respondent. It is contended that the issue with regard to validity and existence of an arbitration agreement be referred for adjudication by the arbitrator.

8. On the other hand, learned Senior Counsel for the respondent submitted that this Court proceeding under Section 11 (6) of the Act is prima facie required to satisfy itself with regard to existence of arbitration clause. While inviting the attention of this Court to the admitted agreement and the agreements in the instant applications, it is pointed out that the agreements in the instant applications have been written on the same stamp paper in which agreement dated 03.10.2011 which is subject matter of Arbitration Application No.217 of 2023 in which arbitrator has already been appointed, has been written. It is further submitted that first three pages of the agreements do not contain the signature of the parties and therefore, in the absence of prima facie material to establish the existence of an arbitration clause, the reference cannot be made to arbitration.

9. I have considered the rival submissions and perused the record.

10. Section 7 of the Act defines arbitration agreement to mean an agreement by the parties to submit to arbit