“Section 11(6A) was added by The Amendment Act of 2015. Section 3 of The Amendment Act of 2019 insofar as it pertains to omission of this Sub-Section has not yet been brought into force. Omission of the Sub-Section is not so as to resuscitate law that was prevailing prior to The Amendment Act of 2015. It is difficult to agree with reasoning contained in United India Insurance Company Limited v. Antique Art Exports Private Limited, (2019) 5 SCC 362 as Section 11(6A) is confined to examination of existence of an Arbitration Agreement and is to be understood in the narrow sense as has been laid down in Duro Felguera, S.A., (2017) 9 SCC 729 [Paragraphs 48 & 59]. We, therefore, overrule United India Insurance Company Limited for not having laid down correct law.”
– Hon’ble Justice R.F. Nariman, M/s. Mayavati Trading Pvt. Ltd. v. Pradyuat Deb Burman, [Civil Appeal No. 7023 of 2019].
The 2019 Amendment Act has deleted Sub-Section (6A) in Section 11. Sub-Section (6A) continues to remain and governs scope of power under Section 11 for the present.
– Hon’ble Justice Indu Malhotra, Bharat Sanchar Nigam Ltd. v. M/s. Nortel Networks India Pvt. Ltd., [Civil Appeal Nos. 843-844 of 2021] decided on 10.03.2020.
It is no more res integra, despite subsequent omission of Section 11(6A) by The Arbitration and Conciliation (Amendment) Act, 2019, legislative intent behind thereto continues to be a guiding force for Courts while examining an application under Section 11.
Courts are obliged to apply their mind to core preliminary issues, albeit, within framework of Section 11(6A). Such a review, as already clarified by this Court, is not intended to usurp jurisdiction of Arbitral Tribunal but is aimed at streamlining process of Arbitration. Therefore, even when an Arbitration Agreement exists, it would not prevent Court to decline a prayer for reference if dispute in question does not correlate to said Arbitration Agreement.
– Hon’ble Justice Surya Kant, DLF Home Developers Ltd. v. Rajapura Homes Private Limited, Arbitration Petition (Civil) No. 17 of 2020 decided on 22.09.2021.
DLF Home Developers Limited v. Rajapura Homes Private Limited, 2021 SCC Online SC 781 had taken note of observations made in Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1. To prevent wastage of public and private resources, Court may conduct a prima facie review at stage of reference to weed out any frivolous or vexatious claims.
– Hon’ble Justice M.R. Shah, Indian Oil Corporation Limited v. NCC Limited, [Civil Appeal No. 341 of 2022] decided on 20.07.2022.
Also see, M/s. Emaar India Ltd. v. Tarun Aggawal Projects LLP, [Civil Appeal No. 6774 of 2022] decided on 30.09.2022.
Court in Duro Felguera, S.A., (2017) 9 SCC 729 noted, post 2015, jurisdiction of Court under Section 11(6) is limited to examining whether an Arbitration Agreement exists – “nothing more, nothing less”. It did not take much time for a Three-Judge Bench in M/s. Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714 to expressly overrule United India Insurance Co. Ltd. v. Antique Art Exports Pvt. Ltd., (2019) 5 SCC 362. The entire case law was considered by a Three-Judge Bench of this Court in Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1.
The pre-referral jurisdiction of Courts under Section 11(6) is very narrow and inheres two inquiries. The primary inquiry is about existence and validity of an Arbitration Agreement. The secondary inquiry may arise with respect to Non-Arbitrability of dispute. Referral Court may reject claims which are manifestly and ex-facie Non-Arbitrable [BSNL v. M/s. Nortel Networks India Pvt. Ltd., (2021) 5 SCC 738].
– Hon’ble Justice Pamidighantam Sri Narasimha, NTPC Ltd. v. M/s. SPML Infra Ltd., [Civil Appeal No. 4778 of 2022] decided on 10.04.2023.