LexCOX & KINGS LTD. versus SAP INDIA PVT. LTD. & ANR.
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[2024] 9 S.C.R. 199 : 2024 INSC 670 Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr. (Arbitration Petition No. 38 of 2020) 09 September 2024 [Dr. Dhananjaya Y. Chandrachud, CJI, J.B. Pardiwala* and Manoj Misra, JJ.] Issue for Consideration Whether the application of the petitioner for the appointment of an arbitrator deserves to be allowed. Whether the requirement of prima facie existence of an arbitration agreement, as stipulated u/s. 11 of the Act, 1996, is satisfied. Whether the respondent no. 2 is a party to the arbitration agreement or not. Headnotes† Arbitration and Conciliation Act, 1996 – s.11(6) r/w. s.11(12) (a) – Petitioner has filed the present petition in terms of s.11(6) r/w.s.11(12)(a) of the Act, seeking appointment of an arbitrator for the adjudication of disputes and claims in terms of clause 15.7 of the Services General Terms and Conditions Agreement dated 30.10.2015 entered into between the Petitioner and respondent no. 1 – The petitioner had also arrayed respondent no. 2 in the arbitration notice – Respondents have contended that respondent no. 2 has neither impliedly nor explicitly consented to the arbitration agreement between the petitioner and respondent no. 1: Held: It is settled that the arbitral tribunal is the preferred first authority to look into the questions of arbitrability and jurisdiction, and the courts at the referral stage should not venture into contested questions involving complex facts – The respondents have raised a number of objections against the present petition, however, none of the objections raised question or deny the existence of the arbitration agreement under which the arbitration has been invoked by the petitioner in the present case – Thus, the requirement of prima facie existence of an arbitration agreement, as stipulated u/s. 11 of the Act, 1996, is satisfied – Once the arbitral tribunal is constituted, it shall be open for the respondents to raise all the * Author 200 [2024] 9 S.C.R. Digital Supreme Court Reports available objections in law, and it is only after (and if) the preliminary objections are considered and rejected by the tribunal that it shall proceed to adjudicate the claims of the petitioner – Further, on the issue of impleadment of respondent no. 2, which is not a signatory to the arbitration agreement, elaborate submissions have been made on both the sides, placing reliance on terms of the agreements, email exchanges, etc – In view of the complexity involved in the determination of the question as to whether the respondent no. 2 is a party to the arbitration agreement or not, this Court is of the view that it would be appropriate for the arbitral tribunal to take a call on the question after taking into consideration the evidence adduced before it by the parties and the application of the legal doctrine as elaborated in the decision in Cox and Kings – Thus, petition is allowed and an arbitrator is appointed. [Paras 30, 32, 33, 34, 35] Case Law Cited Cox and Kings Ltd. v. SAP India Pvt. Ltd. [2023] 15 SCR 621 : 2023 INSC 1051; In Re: Interplay Between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Stamp Act [2023] 15 SCR 1081 : 1899 2023 INSC 1066 – followed. Lombardi Engg. Ltd. v. Uttarakhand Jal Vidyut Nigam Ltd. [2023] 13 SCR 943 : 2023 INSC 976; SBI General Insurance Co. Ltd. v. Krish Spinning 2024 INSC 532 – relied on. Chloro Controls India (P) Ltd v. Severn Trent Water Purification Inc [2012] 13 SCR 402 : (2013) 1 SCC 641 – referred to. List of Acts Arbitration and Conciliation Act, 1996. List of Keywords Arbitrator; Appointment of an arbitrator; Arbitration agreement; Existence of arbitration agreement; Arbitral Tribunal; Available objections in law; Impleadment of party; Party not signatory to arbitration agreement; Referral stage; Complex questions involving complex facts. Case Arising From CIVIL ORIGINAL JURISDICTION: Arbitration Petition No. 38 of 2020 Under Section 11(6) read with Section 11(12)(a) of the Arbitration and Conciliation Act 1996 [2024] 9 S.C.R. 201 Cox & Kings Ltd. v. Sap India Pvt. Ltd. & Anr. Appearances for Parties Nagarkatti Kartik Uday, Hiroo Advani, Divyakant Lahoti, Ms. Vindhya Mehra, Ms. Madhur Jhavar, Ms. Praveena Bisht, Kartik Lahoti, Navdeep Dahiya, Kumar Vinayakam Gupta, Ms. Mallika Luthra, Saksham Barsaiyan, Karandeep Dahiya, Ms. Surbhi Saran, Ms. Ria Garg, Rahul Maheshwari, Advs. for the Petitioner. Ritin Rai, Sr.
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