Amateur Kabaddi Association Haryaya v. Amateur Kabaddi Federation Of India And ORS

  







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"This is with reference to the above orders dated 18052017 and 19 092017 passed by the Hon'ble Punjab & Haryana High Court. An opportunity of hearing has been given to you by the General Body of the AKFI and in pursuance thereof, a decision has been taken by the General Body of the AKFI, in its meeting dated 02112017 held at Hotel Golden Tulip, M.I. Road Jaipur which was attended by 60 Representatives of AKFI including your good self.

After having elaborate discussions and close scrutiny of facts, the General Body of the AKFI with a majority of 5403 votes (as per secret ballot demanded by you is of the opinion that the erstwhile Haryana Kabaddi Association (bearing Reg. No.

193/198586), represented by the District members has become a defunct and deregistered, by virtue of section 9 (4) of Haryana Registration and Regulation of Societies Act 2012. The present newly registered Haryana Kabaddi Association which claims to be the erstwhile association is not the same entity inasmuch as the composition of newly registered Haryana Kabaddi Association has been changed completely and the registered byelaws/ constitution of newly registered Haryana Kabaddi Association (Reg. No. 1748/2015) gives voting right to individual members only and curtails the voting rights of the institutions (districtassociations) which is in direct contravention of the National Sports Development Code, 2011issued by the Ministry of Youth Affairs and Sports, Government of India.

The purportedly elected District representatives of the Haryana Kabaddi Association had never participated in the alleged meetings of 07.11.2015, 08.11.2015, and 15.11.2015 and further, as per 3.10 and 3.19 of the National Sports Development Code 2011, the district associations are required to be the constituents of the association with full voting rights and the individuals though elected, do not have any voting rights whatsoever. The newly registered Haryana Kabaddi Association (Reg. No. 1748/2015) is clearly not the erstwhile Haryana Kabaddi Association (Registration No. 193 / 1985). Only the name of the association has been misused for registration of a new association which had actually never ever applied to the AKFI

for recognition and the AKFI at no point of time ever recognised this association (Haryana Kabaddi Association Reg. No. 1748/2015).

That during the intervening period, the participation of Haryana Kabaddi Association was because of the same name used by it and the same person leading the association. Needless to say that the AKFI was completely misled & the communications sent to the Haryana Kabaddi Association during 2014 to 2017 were because of the above said confusion.

The present executive committee of newly registered association in the name and style of the 'Haryana Kabaddi Association' has been elected only amongst the 11 initial individual members having shown present in the meetings dated 07.11.2015, 08.11.2015 and 15.11.2015 and the same cannot be treated as valid representation of democratically elected district representatives as the same shall be in violation of 3.10 and 3.19 of the National Sports Development Code, 2011. In the newly registered association, you have included the persons of your choice with voting rights, with an intention of having single handed control & dominion over the elections of the association whereas grass root representation of Districts has been deprived from exercising voting rights. This makes the newly registered Haryana Kabaddi Association (Reg. No. 1748/2015) a pocketed

association working for personal gains & ignoring the interest of the game of Kabaddi The composition of the 'Haryana Kabaddi Association (Reg. No. 01748 dt. 07122015) and the erstwhile 'Haryana Kabaddi Association (Reg. No. 193/198586) are altogether different. The newly registered 'Haryana Kabaddi Association (Reg. No. 01748 dt. 07122015) was never recognized by the AKFI and the General Body of the AKFI has refused to recognize the same due to the above.

The 'Haryana Kabaddi Association (Reg. No.

01748 dt. 07122015) is clearly not a Member Unit of AKFI & therefore, you are advised not to use the term 'affiliated to Amateur Kabaddi Federation of India or a member unit of AKF'I."

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"After hearing learned counsel for the parties and taking into consideration the aforesaid facts and circumstances, the present petition is disposed of with the following directions:

 The right to appeal is created in the Memorandum of Association and Constitution of the AKFI which has to be provided to the petitioner.

 If the Arbitration Commission, as stated by the learned counsel for respondent No.1, is not functional then it has to be made functional forthwith.

 The petitioner shall be informed by respondent No.1 about the constitution of the Arbitration Commission within 15 days from the date of receipt of certified copy of this order and the petitioner shall be granted 21 days time to file the appeal thereafter.

 It is made clear that on the filing of an appeal, the Arbitration Commission shall try to decide the same as early as possible but preferably within a period of three months from the date of initiation of the proceedings."


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"77. In view of the above discussion, we allow the present writ petition. Resultantly, Clauses 8.9, 15.22, 15.8 and 17.2 of the amended MOA of the AKFI, are struck down as illegal. The appointment of Respondent No. 4 as Life President of the AKFI, is also, consequently, declared illegal. Equally, the election and consequent appointment of Respondent No. 5, as President of the AKFI, on 19th May, 2013 and 23rd April, 2017, are also declared illegal, and are accordingly quashed and set aside.

78. Given the totally clandestine and surreptitious manner in which the provisions of the MOA were illegally amended, in order to enable Respondent No. 5 to contest for the post of President, we further direct that Respondent No. 5 render accounts of all financial benefits, which have enured to Respondent No. 5, as and in her capacity as President of the AKFI since the time of her appointment to the said post on 19 th May, 2013 until date, and the same be recovered from her, forthwith.

79. Additionally, in view of the apparent anarchy, prevailing in the affairs of the AKFI, owing to the machinations of Respondents No. 4 and 5, we are of the opinion that it would be necessary, to preserve the very existence of the AKFI, to entrust its control and affairs to an impartial Administrator. We, therefore, issue additionally, the following directions:

(i) We appoint Shri Sanat Kaul, IAS (Retd.) as Administrator, who would, till further orders, take over control of the AKFI, and administer all its affairs. He shall stand substituted in place of the President of the AKFI, and shall be entitled to exercise all powers which existed, heretofore, in the President of the AKFI.

(ii) The Administrator shall ensure that the Electoral College of the AKFI is prepared, and elections held, in accordance with the Model Election Guidelines, within three months thereof.

(iii) The body so elected shall carry out the amendments to the MOA, to bring it in conformity with the NSCI.

(iv) Once this is done, a fresh round of elections shall be carried out, as per the amended MOA and in terms of the NSCI, ensuring that all stipulations in the NSCI, including age and tenure restrictions, are strictly complied with. (v) The entire exercise shall be carried out within a period of six months from today.

(vi) The AKFI shall make available to the Administrator an appropriate office space and facilities for the discharge of the aforesaid directions and make available such staff and personnel as the Administrator may express the need for. Alternatively, the Administrator may appoint such personnel to assist him in the aforesaid matter and expense towards the same shall be borne by the AKFI.

(vii) Till the elections are conducted and results declared in consonance of the NSCI and in compliance with the preceding directions, the AKFI shall not make any new financial commitments except with the prior approval of the Administrator. Routine expenses of AKFI too shall be defrayed, with the due prior approval of the Administrator.

(viii) The Administrator would submit a three monthly report, to this Court, so as to enable this Court to be satisfied that the affairs of the AKFI are in order. The monthly remuneration of the Administrator is fixed at ₹ 1,00,000/ per month apart from miscellaneous expenses, tour and travel, secretarial assistance, etc., on actuals which would be disbursed, by the 5th of every month, by Respondent No. 1.

(ix) The Bank accounts and other assets of AKFI shall be handed, and dealt with, only by the Administrator, or such other person (s),

whom he may choose to depute/appoint in this regard."

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"It has come on record that previously HKA was the affiliated unit of AKFI. However vide show cause notice dated 03.05.2017, AKFI withdrew its affiliation. A new Body AKA Haryana came into existence and AKFI conferred affiliation to it. Apparently, there was some dispute between Mr. Vijay Prakash, the President and Mr. Kuldeep Dalal the Secretary of HKA. Mr. Kuldeep Dalal submitted his recognition and subsequently became the General Secretary of AKAH. Both the parties were asked to explore possibility of settlement as they were part of the same Association. Both the parties expressed their desire to resolve the dispute amicably.

It is on record that the Objector had challenged the withdrawal of affiliation by filing

CWP No.10861/2017 which was decided on 18.05.2017. Order dated 02.05.2017 was set aside on the ground that Mr. Vijay Prakash was not given the opportunity to contest the show cause notice. Order dated 19.09.2017 in CWP No. 20912/2017 reveals that the said petition was disposed off and the matter was sent back to General Assembly of AKFI to decide the dispute in terms of Clause 29 of the Memorandum of Association and Constitution of AKFI, Again HKA filed CWP 29848 of 2017 which came to be disposed by an order dated 22.12.2017. The Arbitration Commission was directed to be made functional and to decide the dispute as early as possible preferably within a period of 3 months. It is not disputed that AKFI appointed 3 former judges of Rajasthan High Court, Justice K.S.

Rathore, Justice I.S. Israni and Justice Mahesh Sharma and conveyed it to the petitioner/objector on 08.01.2018. The petitioner was not satisfied with the appointment of the Arbitrators and again filed Arbitration Petition No.42/2018 before the Hon'ble High Court. While the said petition was pending, the Objector filed the objections in question. There is change of circumstances after the hearing of the objections. The Objector moved an application under Section 151 CPC for withdrawal of the said petition as he wished to pursue his remedy before Administrator AKFI and to resolve all the disputes with the respondents therein amicably. By an order dated 21.12.2018, the said application for withdrawal of petition was allowed.

Apparently the disaffiliation which was challenged by the Objector of HKA has not yet been set aside so far. The AKAH continues to be the affiliated unit of AKFI. Its elections have been conducted in the presence of the observers from AKFI on 29.10.2017. It has performed various activities relating to Kabaddi since it came into existence. Allegations regarding irregularities and illegalities in the running of AKFI and financial benefits enjoyed by the previous Presidents cannot be gone into at this stage without conducting detailed inquiry in due course.

Names of the representatives of the affiliated unit have been called only for a limited purpose to prepare an "Electoral College" to constitute an elected body in terms of the judgement of Hon'ble High Court of Delhi for the purpose to amend the Constitution of AKFI to make it compliant with NSCI Code. The first round of election is to be carried out and after the amendment in terms of the order, the second round of election to elect a body is to be performed. So far the purpose of first round of election, names of the representatives of AKAH are to be accepted."

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"(i) Haryana Registration and Regulation of Societies Rules, 2012 framed under the Haryana Registration & Regulation of Societies Act, 2012 contemplate what types of members can be elected to a registered Society. In terms of Section 14 of the said Act, it is contemplated that a Society shall consist of minimum seven members at the time of its registration and it may admit persons, founding members, life members, ordinary

members, associate members, tenure member or honorary member in accordance with the provisions as contained in the byelaws.

(ii) Further, as per Haryana Registration & Regulation of Societies Rules, 2012 it was contemplated that there could be four types of members who are detailed hereinbelow: (a) Founder Members: Founder member is a member who has been admitted as a founder member at the time of registration of the society. There were 11 founder members in the Respondent No.2 Haryana Kabaddi Association (HKA).

(b) Life Members: Life member is a member who may be admitted as a life member on payment of prescribed fee and such person can be admitted as a life member of the society. There were 31 (thirtyone) life members in the Respondent No.2 Haryana Kabaddi Association (HKA) (c) Ordinary Member: Ordinary members in the society shall be the ones who would continue to enjoy the membership till they are not in any arrears of payment of annual subscription fee.

There were districts in Haryana and each district was represented by two members in the

Respondent No.2 Haryana Kabaddi Association and thus there were 44 ordinary members who were entitled to vote.

d) Honorary Members:

Honorary members are the ones who have distinguished talent and merits or whose association is deemed to beneficial to the society or who has rendered services of outstanding merit to the society. There were no honorary members inducted in the society. In any case, the honorary members are entitled to attend the meetings and contribute the deliberations but they have no right to vote.

iii.

Thus, the Respondent No.2 HKA had in due compliance of the provisions of the Haryana Registration and Regulation of Societies Act, 2012 and the Rules framed thereunder inducted the abovementioned members who were entitled to vote as well.

iv.

Thus, the allegations of the Respondent No. 1 AKFI in the minutes of meeting dated 02.11.2017 which were conveyed vide Letter dated 20.11.2017 that the earlier association had become defunct and the composition of the new association were totally baseless."



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In this case we are called upon to consider the effect of the withdrawal of the writ petition filed under Articles 226/227 of the Constitution of India without the permission of the High Court to file a fresh petition. The provisions of the Code of Civil Procedure,1908 (hereinafter referred to as 'the Code') are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions. Rule 1 of Order XXIII of the Code provides for the withdrawal of a suit and the consequences of such withdrawal.

Prior to its amendment by Act 104 of 1976, Rule 1 of Order XXIII of the Code provided for two kinds of withdrawal of a suit, namely, (i) absolute withdrawal, and (ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action. The first category of withdrawal was governed by subrule (1) thereof as it stood then, which provided that at any time after the institution of a suit the plaintiff might, as against all or any of the defendants 'withdraw' his suit or abandon a part of his claim.

The second category was governed by subrule (2) thereof which provided that where the Court was satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there were sufficient grounds for allowing the plaintiff to institute a fresh suit for the subjectmatter of a suit or part of a claim, it might, on such terms as it thought fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subjectmatter of such suit or such part of the claim.

plaintiff withdrew from a suit or abandoned a part of a claim without the permission referred to in subrule (2) he would be liable to such costs as the Court might award and would be precluded from instituting any fresh suit in respect of such subjectmatter or such part of the claim. Since it was considered that the use of the word 'withdrawal' in relation to both the categories of withdrawals led to confusion, the rule was amended to avoid such confusion. The relevant part of Rule 1 of Order XXIII of the Code now reads thus: "Rule 1. Withdrawal of suit or abandonment of part of claim(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

*** *** ****

(3) Where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subjectmatter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.

(4) Where the plaintiff (a) abandons any suit or part of claim under subrule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in subrule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subjectmatter or such part of the claim."

xxx xxx xxx

7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subjectmatter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subjectmatter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur.

The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in subrule (3) of Rule 1 of Order XXIII.

decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit, or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in subrule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in subrule (3) in order to prevent the abuse of the process of the Court.

8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying Rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition.

It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao and Ors. v. The State of U.P. and Ors., [1962] 2 S.C.R.

because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows:

"If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other."

9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench hunting tactics.

In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again.

to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subjectmatter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open."


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"6. It is also necessary to refer to the arbitration clause under the contract which clearly provides that if the contractor does not make any demand for

arbitration in respect of any claim in writing within 90 days of receiving the intimation from the appellants that the bill is ready for payment, the claim of the contractor will be deemed to have been waived and absolutely barred and the appellants shall be discharged and released of all liabilities under the contract in respect of these claims. The liability, therefore, of the appellants ceases if no claim of the contractor is received within 90 days of receipt by the contractor of an intimation that the bill is ready for payment. This clause operates to discharge the liability of the appellants on expiry of 90 days as set out therein and is not merely a clause providing a period of limitation. In the present case, the contractor has not made any claim within 90 days of even receipt of the amount under the final bill. The dispute has been raised for the first time by the contractor 10 months after the receipt of the amount under the final bill."

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"32. One of the circumstances when an arbitration agreement may become inoperative is, when the dispute arising out of the underlying contract is resolved. The Supreme Court of New South Wales, Commercial Division, Australia, took such a view in Shanghai Foreign Trade Corporation (PR China) vs. Sigma Metallurgical Co. Pty. Ltd., (Yearbook Commercial Arbitration, Vol. XXII1997 page 609). An agreement may be rendered inoperative even by acts of omission or commission, on the part of the parties. Waiver, abandonment, renunciation, election, acquiescence etc., are some of the acts of commission or omission, by which an agreement may be made inoperative by a party. In his "The Law and Practice of Arbitration and Conciliation (2nd Edition) Mr.O.P.

Malhotra, the learned Author says the following about waiver: "Waiver of the right to arbitration, however, cannot be easily assumed. It requires an unequivocal demonstration of intent to waive.

(ii) whether the litigation machinery has been substantially invoked and the parties were well into

preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate;

(iii) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay;

(iv) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings;

(v) whether important intervening steps (eg, taking advantage of judicial discovery procedures not available in arbitration) had taken place; and (vi) whether the delay affected, mislead, or prejudiced the opposing party (Jackson Trak Group, Inc v Mid States Port Auth 242 Kan 683, 751, P 2d 122, 129 (1988) cited in Malarky Enterprises (US) v Healthcare Technology Ltd (UK), Yearbook Commercial Arbitration, vol. XXIII1998 (US No.248) 945, 947)"

xxx xxx xxx

34. The issue of abandonment of the right to arbitration was considered by the Apex court in F.C.I. Vs. YADAV ENGINEER AND CONTRACTOR {(1982) 2 SCC 499}, wherein the Supreme Court held as follows: "Abandonment of a right to seek resolution of dispute as provided in the arbitration agreement must be clearly manifested by the step taken by such party. Once such unequivocal intention is declared or abandonment of the right to claim the benefit of the agreement becomes

manifest from the conduct, such party would then not be entitled to enforce the arbitration agreement because there is thus a breach of the agreement by both the parties disentitling both to claim any benefit of the arbitration agreement. Section 34 provides that a party dragged to the Court as defendant by another party who is a party to the arbitration agreement must ask for stay of the proceedings before filing the written statement or before taking any other step in the proceedings. That party must simultaneously show its readiness and willingness to do all things necessary to the proper conduct of the arbitration.

The legislature by making it mandatory on the party seeking benefit of the arbitration agreement to apply for stay of the proceedings before filing the written statement or before taking any other steps in the proceedings unmistakably pointed out that filing of the written statement discloses such conduct on the part of the party as would unquestionably show that the party has abandoned its rights under the arbitration agreement and has disclosed an unequivocal intention to accept the forum of the Court for resolution of the dispute by waiving its right to get the dispute resolved by a forum contemplated by the arbitration agreement. When the party files written statement to the suit it discloses its defence, enters into a contest and invites the Court to adjudicate upon the dispute.

Once the Court is invited to adjudicate upon the dispute there is no question of then enforcing an arbitration agreement by forcing the parties to resort to the forum of their choice as set out in the arbitration agreement.

{see Ramji Dayawala & Sons (P) Ltd Vs. Invest Import {(1981) 1 SCR 899 : (1981) 1 SCC 80}.

35.

Again in GENERAL ELECTRIC CO.

Vs.

RENUSAGAR POWER CO. {(1987) 4 SCC 137}, the Supreme Court held as follows: "Thus we see that it is the view of this Court that a step in the proceeding which would disentitle the defendant from invoking Section 34 of the Arbitration Act should be a step in aid of the progress of the suit or submission to the jurisdiction of the Court for the purpose of adjudication of the merits of the controversy in the suit. The step must be such as to manifest the intention of the party unequivocally to abandon the right under the arbitration agreement and instead to opt to have the dispute resolved on merits in the suit. The step must be such as to indicate an election or affirmation in favour of the suit in the place of the arbitration. The election or affirmation may be by express choice or by necessary implication by acquiescence.

The broad and general right of a person to seek redressal of his grievances in a Court of law is subject to the right of the parties to have the disputes settled by a forum of mutual choice. Neither right is insubstantial and neither right can be allowed to be defeated by any manner of technicality. The right to have the dispute adjudicated by a Civil Court cannot be allowed to be defeated by vague or amorphous miscalled agreements to refer to arbitration. On the other hand, if the agreement to refer to arbitration is established, the right to have the dispute settled by arbitration cannot be allowed to be defeated on technical grounds."

(Emphasis supplied)

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"7. The submission which has been urged on behalf of the appellants by the learned Attorney General is that clause 15 of the Contract Agreement dated 30 January 2012 does

not constitute an arbitration agreement. Hence, it has been urged that in the absence of an arbitration agreement within the meaning of Sections 2(b) and 7 of the 1996 Act, the very invocation of the jurisdiction under Section 11(6) was not valid. In order to appreciate the submission, it would be necessary to extract clause 15 of the Contract Agreement. The provision reads as follows:

"15. Settlement of Disputes/Arbitration:

15.1 It is incumbent upon the contractor to avoid litigation and disputes during the course of execution. However, if such disputes take place between the contractor and the department, effort shall be made first to settle the disputes at the company level. The contractor should make request in writing to the EngineerinCharge for settlement of such disputes/claims within 30 (thirty) days of arising of the case of dispute/claim failing which no disputes/claims of the contractor shall be entertained by the company. 15.2 If differences still persist, the settlement of the dispute with Govt. Agencies shall be dealt with as per the Guidelines issued by the Ministry of Finance, Govt. of India in this regard. In case of parties other than Govt. Agencies, the redressal of the disputes may be sought in the Court of Law."

8. Section 2(b) of the 1996 Act defines an arbitration agreement to mean an agreement as referred to in Section

7. In terms of Section 7, an arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise

between them in respect of a defined legal relationship, whether contractual or not. Subsection (2) of Section 7 stipulates that an arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. In terms of subsection (3) of Section 7, the arbitration agreement has to be in writing. Subsection (4) of Section 7 then stipulates that: "(4) An arbitration agreement is in writing if it is contained in (a) a document signed by the parties;

(b) an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other."

9. In Jagdish Chander v. Ramesh Chander, (2007) 5 SCC 719, a twojudge bench of this Court, while relying upon the earlier decisions in K. K. Modi v. K. N. Modi, (1998) 3 SCC 573, Bharat Bhushan Bansal v. U.P. Small Industries Corpn. Ltd, (1999) 2 SCC 166 Bihar State Mineral Development Corpn v. Encon Builders (I) (P) Ltd., (citation) and State of Orissa v. Damodar Das, (1996) 2 SCC 216, enumerated the principles governing what constitutes an arbitration agreement. Justice R V Raveendran, speaking on behalf of the bench, held that the words used in an arbitration agreement should disclose a determination and obligation on behalf of parties to refer disputes to arbitration. This court held:

"8 (i) The intention of the parties to enter into an arbitration agreement shall have to be gathered from the terms of the agreement. If the terms of the agreement clearly indicate an intention on the part of the parties to the agreement to refer their disputes to a private tribunal for adjudication and a willingness to be bound by the decision of such tribunal on such disputes, it is arbitration agreement. While there is no specific form of an arbitration agreement, the words used should disclose a determination and obligation to go to arbitration and not merely contemplate the possibility of going for arbitration. Where there is merely a possibility of the parties agreeing to arbitration in future, as contrasted from an obligation to refer disputes to arbitration, there is no valid and binding arbitration agreement.

(ii) Even if the words "arbitration" and "Arbitral Tribunal (or arbitrator)" are not used with reference to the process of settlement or with reference to the private tribunal which has to adjudicate upon the disputes, in a clause relating to settlement of disputes, it does not detract from the clause being an arbitration agreement if it has the attributes or elements of an arbitration agreement. They are:

(a) The agreement should be in writing.

(b) The parties should have agreed to refer any disputes (present or future) between them to the decision of a private tribunal.

(c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner,

giving due opportunity to the parties to put forth their case before it.

(d) The parties should have agreed that the decision of the private tribunal in respect of the disputes will be binding on them.

(iii) Where the clause provides that in the event of disputes arising between the parties, the disputes shall be referred to arbitration, it is an arbitration agreement. Where there is a specific and direct expression of intent to have the disputes settled by arbitration, it is not necessary to set out the attributes of an arbitration agreement to make it an arbitration agreement. But where the clause relating to settlement of disputes, contains words which specifically exclude any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it will not be arbitration agreement. For example, where an agreement requires or permits an authority to decide a claim or dispute without hearing, or requires the authority to act in the interests of only one of the parties, or provides that the decision of the authority will not be final and binding on the parties, or that if either party is not satisfied with the decision of the authority, he may file a civil suit seeking relief, it cannot be termed as an arbitration agreement.

(iv) But mere use of the word "arbitration" or "arbitrator" in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example, use of words such as "parties can, if they so

desire, refer their disputes to arbitration" or "in the event of any dispute, the parties may also agree to refer the same to arbitration" or "if any disputes arise between the parties, they should consider settlement by arbitration" in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement. Similarly, a clause which states that "if the parties so decide, the disputes shall be referred to arbitration" or "any disputes between parties, if they so agree, shall be referred to arbitration" is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises.

Such clauses require the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future."

(emphasis supplied)

10. In the present case, clause 15 of the Contract Agreement is titled "Settlement of Disputes/Arbitration". However, the substantive part of the provision makes it abundantly clear that there is no arbitration agreement between the parties agreeing to refer either present or future disputes to arbitration.

11. Clause 15.1 contains a reference to the steps to be taken for settlement of disputes between the parties.

Clause 15.2 stipulates that if differences still persist, the settlement of the disputes with government agencies shall be dealt with in accordance with the guidelines of the Ministry of Finance. In the case of parties other than government agencies, the redressal of disputes has to be sought in a court of law.

12. A clause similar to clause 15 of the Contract Agreement in the present case was considered by a bench of this Court in IB Valley Transport, Vijay Laxmi (P) Ltd. v. Mahanadi Coalfields Ltd consisting of J Chelameswar and A. K. Sikri, JJ. (2014) 10 SCC 630. In the said case, the clause was interpreted as an alternative remedy at the company level to be exhausted before taking recourse to other suitable legal remedies. It was observed: "10. From the aforesaid narration of facts, it becomes clear that Clause 12 of the general terms and conditions provides for a mechanism of dispute resolution before resorting to the legal remedies. This clause specifically states that it is incumbent upon the contractor to avoid litigation and disputes during the course of execution.

If any dispute takes place between the contractor and the department, effort shall be made first to settle the disputes at the company level. Further, this clause states that the contractors should make request in writing to the Engineer Incharge for settlement of such dispute/claim within 30 days of arising of cause of dispute/claim."

(emphasis supplied)

13. The above extract makes it abundantly clear that clause 15 of the Contract Agreement is a dispute resolution mechanism at the company level, rather than an arbitration agreement. Consequently, in case of a dispute, the respondent was supposed to write to the Engineerin charge for resolving the dispute. Clause 15 does not comport with the essential attributes of an arbitration agreement in terms of section 7 of the 1996 Act as well as the principles laid down under Jagdish Chander (supra). A plain reading of the above clause leaves no manner of doubt about its import. There is no written agreement to refer either present or future disputes to arbitration.

Neither does the substantive part of the clause 8 refer to arbitration as the mode of settlement, nor does it provide for a reference of disputes between the parties to arbitration. It does not disclose any intention of either party to make the EngineerinCharge, or any other person for that matter, an arbitrator in respect of disputes that may arise between the parties. Further, the said clause does not make the decision of the Engineerin Charge, or any other arbitrator, final or binding on the parties. Therefore, it was wrong on the part of the High Court to construe clause 15 of the Contract Agreement as an arbitration agreement.

xxx xxx xxx xxx xxx xxx xxx xxx xxx

16. The communication dated 7 April 2017 merely indicates a desire on behalf of CIL to have disputes related to work contracts settled by arbitration. It requires both the parties to arrive at a further agreement to

proceed to arbitration when the dispute arises. Therefore, in view of the principles laid down in Jagdish Chander (supra), following a line of precedent, clause 5 in the aforesaid communication cannot be construed as an arbitration agreement between the appellants and the respondent in terms of section 7 of the 1996 Act so as to compel the appellants to appoint an arbitrator.

17. The order of the Chief Justice of the High Court of Orissa dated 20 July 2018 proceeds on an understanding that the learned counsel for both the sides did not dispute the fact that clause 15 of the Contract Agreement and clause 5 of the policy decision 7 April 2017 taken by CIL provide for appointment of an arbitrator in case there is any dispute or difference between the parties. The order has, therefore, proceeded on an understanding of counsel, which in any event cannot be regarded as a binding statement of law on the existence of an arbitration agreement."

(Emphasis supplied)



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"53. We, accordingly, hold that the disputes relating to Trust, trustees and beneficiaries arising out of the Trust Deed and the Trust Act are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties. A fortiori - we hold that the application filed by the respondents under Section 11 of the Act is not maintainable on the ground that firstly, it is not based on an "arbitration agreement" within the meaning of Sections 2(b) and 2(h) read with Section 7 of the Act and secondly, assuming that there exists an arbitration agreement (clause 20 of the Trust Deed) yet the disputes specified therein are not capable of being referred to private arbitration for their adjudication on merits.

54 We thus add one more category of cases, i.e., category (vii), namely, cases arising out of Trust Deed and the Trusts Act, 1882, in the list of (vi) categories of cases specified by this Court in Para 36 at page 546 547 of the decision rendered in Booz Allen & Hamilton Inc. (2011) 5 SCC 532 which as held above cannot be decided by the arbitrator(s)."

(Emphasis Supplied)


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"2. A deeper consideration of the order of reference reveals that the issues required to be answered relate to two aspects that are distinct and yet interconnected, namely:

2.1 Meaning of nonarbitrability and when the subject matter of the dispute is not capable of being resolved through arbitration; and 2.2 The conundrum - "who decides" - whether the court at the reference stage or the arbitral tribunal in the arbitration proceedings would decide the question of non arbitrability.

2.3 The second aspect also relates to the scope and ambit of jurisdiction of the court at the referral stage when an objection of nonarbitrability is raised to an application under Section 8 or 11 of the Arbitration and Conciliation Act, 1996 (for short, the 'Arbitration Act'). xxx xxx xxx

18. Arbitration is a private dispute resolution mechanism whereby two or more parties agree to resolve their current or future disputes by an arbitral tribunal, as an alternative to adjudication by the courts or a public forum established by law. Parties by mutual agreement forgo their right in law to have their disputes adjudicated in the courts/public forum. Arbitration agreement gives contractual authority to the arbitral tribunal to adjudicate the disputes and bind the parties.

19. The expression 'arbitration agreement' has been defined in clause (d) of subsection (2) to mean an agreement as defined in Section 7 of the Arbitration Act. xxx xxx xxx

21. The term 'agreement' is not defined in the Arbitration Act, albeit it is defined in Section 10 of the Indian Contract Act, 1872 (for short, the 'Contract Act'), as contracts made by free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not thereby expressly declared to be void. Section 10 of the Contract Act also stipulates that aforesaid requirements shall not affect any law in force in India (and not expressly repealed) by which a contract is required to be made in writing, in presence of witnesses or any law relating to registration of documents. Thus, an arbitration agreement should satisfy the mandate of Section 10 of the Contract Act, in addition to satisfying other requirements stipulated in Section 7 of the Arbitration Act.

22.

Sections 12 to 18 of the Contract Act state when a person can be said to be of a sound mind for the purpose

of contracting and define the expressions 'consent', 'free consent', 'coercion', 'undue influence', 'fraud' and 'misrepresentation'. Sections 19 to 23 relate to voidability of agreements, the power to set aside contracts induced by undue influence, when both the parties are under mistake as to a matter of fact, effect of a mistake as to the law, effect of a mistake by one party as to a matter of fact and what considerations and objects are lawful and unlawful. Sections 24 to 30 relate to void contracts and Sections 26 and 27 therein state that agreements in restraint of marriage and agreements in restraint of trade, respectively are void, albeit Exception (1) to Section 27 saves agreements for not carrying out the business of which goodwill is sold. Section 28 of the Contract Act states that agreements in restraint of legal proceedings are void, but Exception (1) specifically saves contracts by which two or more persons agree that any dispute, or one which may arise between them, in respect of any subject or class of subjects shall be referred to arbitration.

23. Arbitration agreement must satisfy the objective mandates of the law of contract to qualify as an agreement. Clauses (g) and (h) of Section 2 of the Contract Act state that an agreement not enforceable in law is void and an agreement enforceable in law is a contract. As a sequitur, it follows that an arbitration agreement that is not enforceable in law is void and not legally valid.

xxx xxx xxx

54. Implicit nonarbitrability is established when by mandatory law the parties are quintessentially barred

from contracting out and waiving the adjudication by the designated court or the specified public forum. There is no choice. The person who insists on the remedy must seek his remedy before the forum stated in the statute and before no other forum.

55. Doctrine of election to select arbitration as a dispute resolution mechanism by mutual agreement is available only if the law accepts existence of arbitration as an alternative remedy and freedom to choose is available. xxx xxx xxx

236. Having established the threshold standard for the Court to examine the extent of validity of the arbitration agreement, as a starting point, it is necessary to go back to Duro Felguera (2017) 9 SCC 729 which laid down: "48.....From a reading of Section 11(6−A), the intention of the legislature is crystal clear i.e. the court should and need only look into one aspect-the existence of an arbitration agreement. What are the factors for deciding as to whether there is an arbitration agreement is the next question. The resolution to that is simple -it needs to be seen if the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement." At first blush, the Court seems to have read the existence of the arbitration agreement by limiting the examination to an examination of its factual existence. However, that is not so, as the existence of arbitration agreement does not mean anything unless such agreement is

contractually valid. This view is confirmed by the Duro Felguera case (supra), wherein the reference to the contractual aspect of arbitration agreement is ingrained under the Section 7 analysis. A mere agreement is not legally binding, unless it satisfies the core contractual requirements, concerning consent, consideration, legal relationship, etc. In Mayavati Trading Case (2019) 8 SCC 714 and Garware Wall Ropes Ltd. v. Coastal Marine Construction and Engineering Ltd., (2019) 9 SCC 209, the aforesaid stand has been confirmed. Therefore, the scope of the Court to examine the prima facie validity of an arbitration agreement includes only the determination of the following: 237.1 Whether the arbitration agreement was in writing? or 237.2 Whether the arbitration agreement was contained in exchange of letters, telecommunication, etc?

237.3. Whether the core contractual ingredients qua the arbitration agreement were fulfilled?

237.4 On rare occasions, whether the subject−matter of dispute is arbitrable?

238. At the cost of repetition, we note that Section 8 of the Act mandates that a matter should not be referred to an arbitration by a court of law unless it finds that prima facie there is no valid arbitration agreement. The negative language used in the Section is required to be taken into consideration, while analyzing the Section. The Court should refer a matter if the validity of the arbitration agreement

cannot be determined on a prima facie basis, as laid down above. Therefore, the rule for the Court is 'when in doubt, do refer."

xxx xxx xxx


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"26. It must be noted that Section 16 of the Arbitration Act, necessarily mandates that the issue of jurisdiction must be dealt first by the tribunal, before the Court examines the same under Section 34. Respondent No. 1 is therefore not left remediless, and has statutorily been provided a chance of appeal. In Deep Industries case (2020) 15 SCC 706, this Court observed as follows: (scc p.718, para 22) "22. One other feature of this case is of some importance. As stated herein above, on 09.05.2018, a Section 16 application had been dismissed by the learned Arbitrator in which substantially the same contention which found favour with the High Court was taken up. The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is

provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34." (Emphasis Supplied)



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"24. General Disciplinary Regulations - xxx xxx xxx 24.4. Appeal - Any decision taken by the AKFI is subject to appeal before the Arbitration Commission of AKFI within 30 days after the receipt of the decision.

24.5. All Member Units of AKFI will commit themselves to refer their unresolved disputes for settlement through the process of Arbitration with the Arbitration Commission which would be highest independent authority for the resolution of disputes.

25. Settlement of Disputes/Conflicts in the Member Units - All State/U.T. Kabaddi Associations and member units affiliated to AKFI will include in their Constitution a provision that the Associations would have all unresolved disputes settled by the Arbitration Commission of AKFI and their Members will voluntarily surrender their right of seeking redress in any Court of Law.

xxx xxx xxx

28. Residual Powers - In the event of disagreement concerning the above Disciplinary Rules, the interpretation of these regulations will fall within the competence of the AKFI General Assembly, which will be the final authority as and when referred by the Executive Council.

29.Disaffiliation/DeRecognition of Member units 29.1 The AKFI General either directly or through the AKFI Executive Council, based on its discretion, is entitled to consider disaffiliation / de recognition of the Member Unit of AKFI on one or more of the under mentioned grounds, after ensuring that a Show Cause Notice has been served and an explanation has been obtained and considered from the organization recommended for disaffiliation/de recognition.

29.1.1. Nonobservance of directives issued by the Amateur KabaddiFederation of India from time to time. 29.1.2. Not holding elections after the completion of the normal tenure for which the office bearers are elected. 29.1.3. Not submitting annual audited statement of accounts, annual report, list of current officebearers and list of affiliated units within the stipulated time period."
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(1) In this Part, unless the context otherwise requires,- (a) "arbitration" means any arbitration whether or not administered by permanent arbitral institution; (b) "arbitration agreement" means an agreement referred to in section 7;

xxx xxx xxx (d) "arbitral tribunal" means a sole arbitrator or a panel of arbitrators;

xxx xxx xxx
"   * 

(1) In this Part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3) An arbitration agreement shall be in writing.

(4) An arbitration agreement is in writing if it is contained in  (a) a document signed by the parties;

(b) an exchange of letters, telex, telegrams or other means of telecommunication 1[including communication through electronic means] which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

xxx xxx xxx
= % *    +    

     

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(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,- (a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and

(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.

(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.

(4) The arbitral tribunal may, in either of the cases referred to in subsection (2) or subsection (3), admit a later plea if it considers the delay justified.

(5) The arbitral tribunal shall decide on a plea referred to in subsection (2) or subsection (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award.

(6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34."

(Emphasis supplied)


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"27  The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory

remedies is a rule of policy, convenience and discretion; and (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

Plea of an alternative remedy does not impose an absolute bar on the powers of the writ court.

For the foregoing reasons and in view of the settled position of law as also of the statutory provisions as well as the fact that the order suffers from an inherent defect, the present writ petition deserves to be allowed. A mere making of a reference, without being conferred with such power, cannot be accepted as a valid basis to contend that the power of judicial review of a Constitutional Court would be ousted and that any illegality or impropriety or an apparent overreach of the authority cannot be examined by a Constitutional Court. It would rather be a travesty of justice on the part of the Constitutional Court and would be abdication of its role if such illegality is not nipped. It has been held by the Hon'ble Supreme Court in the matter of 7

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"17. Frivolous litigation should not become the order of the day in India. From misusing the Public Interest Litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the justice delivery system should not be used as a tool to fulfill personal vendetta. The Indian judiciary has taken cognizance of this issue. In 2014, this Court elucidated as follows, the plight of a litigant caught in the cobweb of frivolous proceedings in
 8 )
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"191...One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his..."

While the Court's ruling pertained to civil proceedings, these observations ring true for the criminal justice machinery as well. We note, with regret, that 7 years, hence, and there has still been no reduction in such plight. A falsely accused

person not only suffers monetary damages but is exposed to disrepute and stigma from society. While running from pillar to post to find a lawyer to represent his case and arranging finances to defend himself before the court of law, he loses a part of himself.

18. As aforesaid, the trial courts and the Magistrates have an important role in curbing this injustice. They are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant. We are of the considered opinion that the trial courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Article 21 of the Constitution. In this context, the trial Judges have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of this land.

xxx xxx xxx

21. It is a settled canon of law that this Court has inherent powers to prevent the abuse of its own processes, that this Court shall not suffer a litigant utilizing the institution of justice for unjust means.

Thus, it would be only proper for this Court to deny any relief to a litigant who attempts to pollute the stream of justice by coming to it with his unclean hands. Similarly, a litigant pursuing frivolous and vexatious proceedings cannot claim unlimited right upon court time and public money to achieve his ends.

22. This Court's inherent powers under Article 142 of the Constitution to do 'complete justice'

empowers us to give preference to equity and a justiceoriented approach over the strict rigours of procedural law (
  + 8+C   #4   

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Thus, it is the constitutional duty of this Court to quash criminal proceedings that were instituted by misleading the court and abusing its processes of law, only with a view to harass the hapless litigants."

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