Minority Judgment

Y.K. Sabharwal, J.—Leave granted.

2. The interpretation of Section 45 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’) falls for determination in this matter. Section 45 is as under:

“45. Power of judicial authority to refer parties to arbitration.— Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”

3. The real question for consideration is as to the nature of adjudication that is contemplated by Section 45 when the objection about the agreement being “null and void, inoperative or incapable of being performed” is raised before a judicial authority. Should the judicial authority while exercising power under Section 45 decide the objection on a prima facie view of the matter and render a prima facie finding or final finding on merits on afford