AIR 2007 (NOC) 1826 (BOM.) = 2007 (4) AIR BOM R 262 (DB) ::2007 (4) AIR Bom R 262 ::2007 A I H C 2428

Bombay High Court

Hon'ble Judge(s): R. M. S. Khandeparkar, D. Y. Chandrachud , JJ

(A) Arbitration and Conciliation Act (26 of 1996) S. 45 — Reference of dispute to arbi-tration — Application for — Party raising issue regarding validity of agreement — Court was prima facie inclined to reject the application — Court has to afford full opportunities to parties to lead evidence and then decide the question {" When the party raises an issue as regards the validity of the agreement in an application under Section 45 of the said Act, if the Court prima facie on the basis of the materials placed in support of contention is inclined to reject the request for reference, then the Court has to afford full opportunities to the parties to lead documentary as well as oral evidence which they want to lead in relation to the validity or in-operative-ness or incapability of performance of the agreement and then decide the question like a trial of a preliminary issue on jurisdiction or limitation in a regular suit. The Single Judge in the instant case however, held that in Shin-Etsu Chemical Company’s case the Apex Court has held that on a primary examination of the documents and materials on record including the arbitration agreement, the Court can reject the request for reference on the ground that the agreement is null and void or inoperative or incapable of being performed within the meaning of Section 45 of the said Act. Undoubtedly, that was the ruling by one of the Judges of the Apex Court in the said matter. How....