IN THE HIGH COURT OF JUDICATURE
AT MADRAS
(Ordinary Original Civil Jurisdiction)
I.A. No. of 2025
In
Arb. O.P. No. of 2024
In the matter of
The Arbitration & Conciliation Act, 1996
1. M/s. Dharmapuri Paper Mills Pvt Ltd.
…
…Applicant/1st Respondent
-Vs-
1. S. Sekar
…1st Respondent/Claimant
2. Mrs. Anupriya Ramesh
3. Mr. P.S. Ramesh Babu
…2nd & 3rd Respondents/
2nd & 3rd Respondents
PETITION FILED UNDER SECTION
16 OF THE ARBITRATION AND
CONCILIATION ACT, 1996 r/w SECTION
151 of CPC.
M/s. Tanya Kapoor
COUNSEL FOR THE APPLICANT
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Ordinary Original Civil Jurisdiction)
I.A. No. of 2025
In
Arb. O.P. No. of 2024
1. M/s. Dharmapuri Paper Mills Pvt Ltd
having regd Office at New No.96, Luz Church Road
Mylapore, Chennai -600 004
Rep. by its Managing Director M.S. Muthusamy
… Applicant/1st Respondent
-Vs -
1. S. Sekar
S/o. Sengoda Gounder
2/150, Thinnapatti Kattuvavalavu
Omalur Taluk, Kookuttapatti
Thiniputti, Salem – 636 305. ….1st Respondent/Claimant
2. Mrs. Anupriya Ramesh
W/o. Ramesh Babu
Director, M/s. Dharmapuri Paper Mills Ltd
New No.96, Luz Church Road
Mylapore, Chennai – 600 004
3. Mr. P.S. Ramesh Babu
Director, M/s. Dharmapuri Paper Mills Ltd
New No.96, Luz Church Road
Mylapore, Chennai – 600 004
…2nd & 3rd Respondents/2nd & 3rd Respondents
PETITION FILED UNDER SECTION 16 OF THE ARBITRATION AND
CONCILIATION ACT, 1996 r/w SECTION 151 of CPC.
1. The petitioner is the __________ of the Applicant/1 st Respondent and is
well acquainted with the facts and the circumstances of the case. The
petitioner is duly authorized and competent to file this Petition. The
Board resolution authorizing me is enclosed herewith.
2. Without prejudice, assuming without conceding that the 1 st
Respondent/Claimant has rights to invoke the Arbitration Clause as per
the Memorandum of Understanding (MoU) dated 07.06.2023, the
Respondent has not complied with section 21 of the Arbitration and
Conciliation Act, 1996., which is mandatory pre-requisite before
preferring the current petitioner under Section 11 of the Arbitration and
Conciliation Act, 1996. No notice invoking Arbitration has been served
on this Applicant Company nor to Respondents 2 and 3 for that matter.
3. Assuming without conceding notice dated 06.02.2024 from lawyer of the
1st Respondent is treated as a Notice under Section 21 of the Act, 1996,
it is evidenced that Section 21 contemplates a period of 30 days from
receipt of notice to reply, failing which alone can the instant petition be
filed. Without prejudice, no occasion to mutually refer the parties to
arbitration has been given. The Legal Notice is dated 06.02.2024 and
the Section 11(6) petition has been filed dated 21.02.2024 before the
Hon’ble High Court of Madras by the respondent herein. Hence, that
the section 11(6) assuming maintainable, is premature and also in
violation of principles as laid down by the Hon’ble Supreme Court in
BSNL v. Nortel Network (2021). The resultant arbitral proceedings are
thus, bad and ought to be set aside.
4. The petitioner states that assuming without conceding, an MoU dated
07.06.2023, can be enforced, as per Clause 12 of the MoU, the
arbitration notice sent by the Aggrieved Party is to nominate an
Arbitrator to arbitrate the dispute. However, the notice dated
06.02.2024, assuming without conceding to be treated as a Section 21
Notice, the counsel issuing the notice on behalf of the Respondent
nominates himself as the Arbitrator. The same is evidently against
principles of natural justice, Section 12 and Schedule VII of the
Arbitration and Conciliation Act, 1996., for being a related and bias
party, thereby making the Arbitrator nominated being barred by Section
12 of the Arbitration and Conciliation Act, 1996. Without prejudice and in
actuality, no nomination has been made by the respondent nor has the
opportunity for petitioner to nominate arbitrator has been provided.
5. The petitioner submits that, assuming without conceding the MoU dated
07.06.2023 is enforceable, the Respondent is also in contravention of
Clause 5 of the MoU– Termination clause. The clause contemplates a
grace period of 30 days from when disputes arose to resolve the said
dispute amicably and if the same is not an option to terminate the said
alleged MoU. It is evidenced from the actions of the Respondent that
neither the procedure contemplated under the alleged MoU nor the
Arbitration nor Conciliation Act, 1996 has been followed.
6. It is disputed that the 1st Applicant has failed and negated to appoint the
tribunal and/or has forfeited its rights to do so especially when no notice
invoking arbitration has been sent to any of the applicants , apart from
the fact that the notice dated 06.02.2024 cannot be deemed a notice
invoking arbitration. Without prejudice, this claim petition is also pre-
mature and not maintainable.
7. As per Section 16 of the Arbitration and Conciliation Act, 1996, an
arbitral tribunal has the power to rule on its jurisdiction, including
objections concerning the existence or validity of the arbitration
agreement. It is submitted that the tribunal lacks jurisdiction to
entertain the claim due to the following reasons:
Unstamped Arbitration Agreement
The alleged MoU relied upon by the 1 st Respondent is not only
being bereft of material particulars as to the schedule it seeks to
enforce but also is improperly stamped and cannot be taken into
evidence and thus cannot be relied upon for the purpose of this
arbitration. The arbitration agreement is thus unenforceable,
unenforceable and invalid in Law.
No mandatory Section 21 Notice served on this Applicant
The Notice dated 06.02.2024 served by a Counsel on behalf of
the 1st Respondent has not been served on the Applicant or for
that matter on any of the respondents in the main arbitral
proceedings. The pre-requisite of Section 21 of the Arbitration &
Conciliation Act, 1996 has not been met and in that sense, there
is no commencement of arbitral proceedings.
No opportunity given to the Applicants to nominate an
arbitrator
Without prejudice, assuming without conceding, the MoU dated
07.06.2023, can be enforced, as per clause 12 of the MoU, the
Arbitrator has to be mutually agreed upon and only then can next
steps under Law be taken. Without prejudice and in actuality, no
nomination has been made by the Petitioner nor has the
opportunity for Respondent to nominate arbitrator has been
provided. Hence the formation of the instant Tribunal itself is bad
and cannot be maintained.
Procedure for constitution of Tribunal not followed
Without prejudice, assuming without conceding the MoU dated
07.06.2023 is enforceable, the 1st Respondent/Claimant is also in
contravention of Clause 5 of the MoU– Termination clause. The
clause contemplates a grace period of 30 days from when
disputes arose to resolve the said dispute amicability and if the
same is not an option to terminate the said alleged MoU. It is
evidenced from the actions of the 1st Respondent that neither the
procedure contemplated under the alleged MoU nor the
Arbitration and Conciliation Act, 1996 has been followed.
Relief sought cannot be granted by Arbitral Tribunal
Apart from the fact that the claim statement is ambiguous and
unclear on what it seeks to enforce, the relief is in the nature of
specific performance, which cannot be looked into by an Arbitral
Tribunal, assuming without conceding any relief could otherwise
be granted against the Applicant.
For all the aforesaid reasons, this Hon’ble Tribunal lacks jurisdiction to
adjudicate the dispute between the Applicant and Respondents and hence
this petition is being preferred under Section 16 of the Arbitration and
Conciliation Act, 1996.
PRAYER
In the light of the foregoing facts and circumstances, it is humbly prayed that
this Hon’ble tribunal may be pleased to:
Hold that this Hon’ble Tribunal does not have jurisdiction to adjudicate
the instant proceeding and/or dispute arising out of the alleged
memorandum of Understanding dated 07.06.2023;
Pass such further order dated, as this Hon’ble Tribunal may deem fit
and thus render justice.
Solemnly affirmed at Chennai
on this the day of March 2025 BEFORE ME
And signed his name in my presence .
ADVOCATE:CHENNAI
