ARB.P./774/2016 of GSBA BUILDER PVT. LTD. Vs RADHA SOAMI SATSANG BEAS

IN THE HIGH COURT OF DELHI AT NEW DELHI+ARB.P. 774/2016 & IA Nos.15151/2016 & 2090/2017

GSBA BUILDER PVT. LTD.

..... PetitionerThrough:MrS.K.Jain,MsKhushbooBhardwaj, Ms Stuti Jain, Mr RanjanKumar Rai and Ms Reetika Wadhwa,Advocates.Bhardwaj, Ms Stuti Jain, Mr RanjanKumar Rai and Ms Reetika Wadhwa,Advocates.

versus

RADHA SOAMI SATSANG BEAS

..... RespondentThrough:Mr Anish Kapur and Mr NavroopBakshi, Advocates.Mr Vikas Dutta, Mr Siddhanth Silwal,MsNehaJain,AdvocatesforImpleader (Fortis Hospital Limited).Bakshi, Advocates.Mr Vikas Dutta, Mr Siddhanth Silwal,MsNehaJain,AdvocatesforImpleader (Fortis Hospital Limited).

CORAM:HON'BLE MR. JUSTICE VIBHU BAKHRUO R R%01.03.2017

VIBHU BAKHRU, J

1.The petitioner (hereafter ‘GBPL’) has filed the present petition underSection 11 of the Arbitration and Conciliation Act, 1996 (hereafter ‘theAct’) praying that an arbitrator be appointed to decide the disputes betweenthe petitioner and the respondent in relation to the agreements dated03.12.2010 and 03.03.2011 entered into between the parties.

2.The respondent (hereafter ‘RSSB’) disputes the existence of anarbitration clause as it claims that the agreements in question standdischarged and the arbitration clause contained therein has also perished.

GBPL had entered into Memorandum of Understanding (hereafter ‘MoU’)dated 22.05.2014 with Fortis Hospitals Limited (hereafter ‘Fortis’), which isstated to be the assignee of RSSB. RSSB claims that the effect of this MoUis that the agreements in question stood discharged by novation. RSSB hasalso opposed the present petition on the plea that this court does not have thejurisdiction to entertain the present petition as the construction works wereexecuted in Ludhiana and the agreement dated 03.12.2010 expresslyprovided that the courts at Ludhiana would have the exclusive jurisdictionregarding the subject agreement.

3.Briefly stated, the relevant facts necessary to address the controversyin this petition are as under:-

3.1GBPL is private company and is, inter alia, engaged in the businessof civil construction. RSSB is society registered under the SocietiesRegistration Act, 1860. RSSB awarded the work of 200 bedded hospital atvillage Mundian Kalan, Ludhiana to GBPL on turnkey basis, by letter ofintent dated 01.09.2010. Subsequently, the parties entered into theagreement dated 03.12.2010 (hereafter ‘the Agreement’) for construction ofthe hospital. GBPL states that initially, the construction at Oncology Blockwas removed from the scope of works but subsequently, on 03.03.2011, theparties entered into an agreement - captioned as “Form of Contract”(hereafter ‘FoC’) - for construction of the said block. The FoC and theAgreement are hereafter collectively referred to as ‘the agreements’.

3.2GBPL claims that the work could not be completed in time on accountof various reasons attributable to RSSB and Fortis. It is alleged that RSSB

committed breach of the agreements which resulted in delay in completionof the works. GBPL further claims that in July, 2012, team from Fortistook over the work which was earlier being monitored by ProjectManagement Committee (PMC). It is further claimed that RSSB transferredthe hospital to Fortis in clandestine manner.

3.3It is stated that RSSB wrongfully invoked one of the bank guaranteesfurnished by GBPL on 09.05.2013. GBPL further claims that it submitted abill for sum of ₹20,34,10,790/- under the cover of its letter dated 08.07.2013. However, the said bill was not settled and in retaliation, Fortisthreatened encashment of the remaining bank guarantee.

3.4It is claimed that the works were completed in September, 2013 andGBPL requested RSSB to issue the completion certificate but the same wasnot issued.

3.5On 02.01.2014, GBPL filed suit (being Suit No. 32/2014), arrayingRSSB and Fortis as defendants, inter alia, praying as under:-

“a) to pass decree for permanent injunction restraining theDefendantsthemselvesorthroughtheiragents,associates, attorneys etc. to Sell the 200 Bed HospitalBuilding Constructed by the Plaintiff at the Site of RadhaSoamiSatsangBeas,Mundian,ChandigarhRoad,Ludhiana, or enter into the deed of novation or any othertransaction/contract whatsoever until and unless the billof the Plaintiff is finalized and be paid, by the DefendantNo.1 orDefendantsthemselvesorthroughtheiragents,associates, attorneys etc. to Sell the 200 Bed HospitalBuilding Constructed by the Plaintiff at the Site of RadhaSoamiSatsangBeas,Mundian,ChandigarhRoad,Ludhiana, or enter into the deed of novation or any othertransaction/contract whatsoever until and unless the billof the Plaintiff is finalized and be paid, by the DefendantNo.1 or

alternatively

Direct the Defendant No.1 to deposit sum of `

22,83,31,788.15 (Rupees Twenty two crores eighty threelacs thirty one thousand seven hundred eighty eight andpaisa fifteen only) and service tax thereto in this Hon’bleCourt. ”

3.6GBPL also filed another suit (C.S. No. 52199/2013) before the CivilJudge (Senior Division), Ludhiana, inter alia, praying for decree ofmandatory injunction directing RSSB to issue the completion certificate andfurther praying for an injunction restraining Canara Bank (arrayed asdefendant No.2) from releasing the amount of bank guarantees (bankguarantee No. 42/2012 dated 08.09.2012 in the sum of ₹84,20,000/- and bank guarantee No. 12/2013 dated 28/2/2013 for ₹2,18,00,000/-).

3.7On 26.04.2014, the parties sought an adjournment to settle theirdisputes amicably.

3.8Thereafter, on 22.05.2014, GBPL entered into the MoU with Fortis.In terms of the MoU, GBPL agreed that it shall raise full and final billamounting to ₹52,99,35,321/- and further acknowledged that it had already received sum of ₹50,85,49,451/- out of the said amount. It was further agreed that the retention money amounting to ₹30,10,094/- deducted by RSSB and now lying with Fortis would be released after the expiry of thedefect liability period. The MoU also recorded that GBPL would instruct itslawyers to withdraw the suits - Civil Suit No. 32/2014 titled as GurbakhshSingh BA Builders Private Limited v. Radha Soami Satsang Beas & FortisHospitals Limited and Civil Suit No. 52199/2013 titled as Gurbakhsh SinghBA Builders Private Ltd v. Radha Swami Satsang Beas & Canara Bank.

3.9GBPL withdrew the aforementioned suits on 24.05.2014. Subsequent

thereto, GBPL sent letter dated 09.06.2014 to RSSB alleging that the MoUwas signed under duress.Approximately, three months thereafter, GBPLsent legal notice dated 01.09.2014 to RSSB and Fortis alleging that GBPLhad accepted the proposal under threat from Fortis and called upon RSSBand Fortis to pay sum of ₹20,83,31,788/- along with interest at the rate of 18% per annum. This was followed by notices dated 13.11.2014 and03.02.2015 to Fortis. After waiting for over year, thereafter, GBPL issueda notice dated 08.02.2016 to RSSB invoking the arbitration clause containedin the Agreement.

Submissions

4.Mr Anish Kapur, learned counsel appearing for RSSB has madesubmissions broadly on two fronts. First, he contended that this court wouldhave no jurisdiction to entertain the present petition. He submitted that interms of clause 10 of the Agreement, the courts at Ludhiana would have theexclusive jurisdiction in respect of any matter under the Agreement; thus,the petition under Section 11 of the Act could be filed only before the HighCourt of Punjab and Haryana. Second, he submitted that the arbitrationclause had perished and was no longer required to be performed in view ofthe MoU entered into between GBPL and Fortis. He drew the attention ofthis court to clauses 11 and 12 of the MoU which expressly recorded that theparties were discharged of all their rights, duties, liabilities and obligationswith respect to the matters arising out of the hospital. He submitted that,consequently, the agreement to resolve the disputes by arbitration asincluded in the Agreement, also perished.

5.Mr Kapur, relied on the decisions of the Supreme Court in the case ofNational Insurance Company Limited v. Boghara Polyfab PrivateLimited: (2009) 1 SCC 267;Union of India v. KishoriLal Gupta andBrothers: AIR 1959 SC 1362;M/s Saraswati Industrial Syndicate Ltd. v.M/s Apollo Tyres Limited: (1986) ILR 1 Delhi 382 andNathani SteelsLimited v. Associated Constructions: 1995 Supp (3) SCC 324 in support ofhis contentions.

6.Mr S.K. Jain, learned counsel appearing for GBPL countered theaforesaid submissions. He submitted that GBPL had entered into the MoUunder duress and coercion as RSSB had already encashed one bankguarantee and was threatening to encash the remaining bank guarantee. Hesubmitted that at the material time, GBPL was not in position to affordencashment of the bank guarantee and therefore, had no choice but to enterinto the MoU with Fortis. He further submitted that after the introduction ofsub-section (6A) in Section 11 of the Act, this court is required to onlyexamine the existence of the arbitration agreement and the question whetherthe arbitration agreement was discharged could be examined only by thearbitrator and not by this court.

7.Insofar as the question of jurisdiction is concerned, Mr Jain submittedthat the Agreement was entered into between the parties at New Delhi and,therefore, this court would have the jurisdiction to entertain the presentpetition notwithstanding that the venue of arbitration was at Ludhiana. Healso drew the attention of this court to the General Conditions of theContract (‘GCC’) and referred to clause 4.24, which expressly provides thatthe courts at Delhi would have jurisdiction to determine the disputes.

8.I have heard learned counsel for the parties.

9.At the outset, it is observed that there is no clarity as to theagreements that were entered into between the parties. Although, it issubmitted that GBPL and RSSB had entered into the Agreement and theFoC, perusal of the FoC indicates that there are other agreements dated03.05.2011 and 01.02.2011. However, it is clear that GBPL had filed thesuits before the Civil Judge, Ludhiana in respect of the subject matter that isnow sought to be agitated by GBPL. Thus, prima facie, GBPL had electedto abandon the arbitration agreement and pursue its remedy before the CivilCourts. Mr Jain sought to rely on the application filed by RSSB under OrderVII Rule 10 of the Code of Civil Procedure, 1908 (hereafter ‘the CPC’)before the Civil Court. In the said application, RSSB had pleaded that interms of clause 4.24 of the GCC, only the Courts at Delhi would havejurisdiction to entertain the disputes between the parties. Mr Jain submittedthat GBPL had withdrawn the suits in view of the objection taken by RSSBand, therefore, RSSB could not raise any objection regarding jurisdiction ofthis court to entertain the present petition.In my view, the aforesaidcontention is not merited because perusal of the application filed by RSSBunder Order VII Rule 10 of the CPC indicates that RSSB had relied uponclause 4.24 of the GCC.Mr Jain had also relied on the said clause andcontended that this court has the jurisdiction to entertain the present petition.It is relevant to refer to clause 4.24 of the GCC, which reads as under:

“4.24 Settlement of Disputes

All disputes and differences of any kind whatsoeverarising out of or in connection with this contract will be

amicably settled by mutual discussion between Employerand Contractor. There will not be any arbitration underthe provisions of the Arbitration and Conciliation Act,1996. The Contractor may approach the civil court forresolution of disputes. All disputes arising out of or inany way connected with this agreement will be deemed tohave arisen in Delhi and only the Delhi Courts ofcompetent jurisdiction will have jurisdiction to determinethe same.”

10.A plain reading of the aforesaid clause indicates that the parties hadspecifically agreed that disputes between the parties would not be resolvedby arbitration. Thus, it is not open for GBPL to rely on the said clause tocontend that this court has jurisdiction and yet insist that the parties bereferred to arbitration; the contentions are contradictory and mutuallydestructive.

11.At this stage, it is also relevant to refer to clauses 9 and 10 of theAgreement, which reads as under:-

“9. This Agreement shall be governed in accordance with thelaws of India. In the event of dispute arising from thevalidity, interpretation or performance of this Agreementsuch dispute shall be referred for arbitration by the PartiesandsettledinaccordancewiththeArbitrationandConciliation Act, 1996. The disputes arising under thisAgreement shall be referred to Sole Arbitrator appointedmutually by the Parties. The venue of such arbitration shallbe Ludhiana.laws of India. In the event of dispute arising from thevalidity, interpretation or performance of this Agreementsuch dispute shall be referred for arbitration by the PartiesandsettledinaccordancewiththeArbitrationandConciliation Act, 1996. The disputes arising under thisAgreement shall be referred to Sole Arbitrator appointedmutually by the Parties. The venue of such arbitration shallbe Ludhiana.10. Subject to Article 9 above, the courts of Ludhiana shall haveexclusive jurisdiction on any matter under the Agreement.”exclusive jurisdiction on any matter under the Agreement.”

12.In view of the above, even if it is accepted that an arbitration

agreement existed between the parties (in the form of clause 9 of theAgreement), the parties had also expressly agreed that (i) the Courts atLudhiana would have the exclusive jurisdiction and (ii) that the place ofarbitration would be at Ludhiana. Indisputably, if GBPL was to agitate itsgrievance by filing suit, only the Courts at Ludhiana would have thejurisdiction. Thus, Courts at Delhi would not fall within the definition of“Court” as per Section 2(1)(e) of the Act.Further, since the place ofarbitration is also at Ludhiana, the High Court of Punjab and Haryana wouldhave the supervisory jurisdiction over the arbitration proceedings.

13.The next question to be addressed is whether an arbitration agreementexists between the parties in view of the MoU entered into between GBPLand Fortis. In terms of the MoU, GBPL agreed that it shall raise final billamounting to `52,99,35,321/- and further acknowledged that it had received`50,85,49,451/- out of the aforesaid amount.The MoU specificallyrecorded that the parties have reconciled their books of accounts to arrive atthe aforesaid figure.Further, GBPL agreed to clear all accounts with itsvendors and close the books of accounts after paying full and final amountas per the terms and conditions of the respective agreements with thevendors so as to maintain after sales backup for services. GBPL also handedover four post dated cheques aggregating `13,85,870/- in favour of certainvendors.

14.In terms of clause 4 of the MoU, GBPL agreed to issue instructions inwriting to its lawyers to withdraw the aforementioned two civil suits filedbefore the Civil Judge, Ludhiana.It also undertook to send its authorizedrepresentative to make statement for withdrawal before the court on the

next date of hearing - 24.05.2014.GBPL agreed to receive sum of`2,00,00,000/- in full and final settlement for the work done relating to theFortis Hospital. Clauses 4, 5, 9, 11 & 12 of the MoU are important and therelevant extracts of the said clauses are set out below:-

“4. That the Contractor with the execution of this MoU shallissue instructions in writing to its Lawyers, with copy toFHsL, to withdraw the following legal cases:-

Civil Suit : CS – 32/2014 titled as Gurbaksh Singh BABuilders Pvt. Ltd. Vs. Radha Soami Satsang Beas &Fortis Hospital Limited, in the Court of Ms Ekta Sahota,Civil Judge (Jr. Div.), Ludhiana;Civil Suit : CS – 32/2014 titled as Gurbaksh Singh BABuilders Pvt. Ltd. Vs. Radha Soami Satsang Beas &Fortis Hospital Limited, in the Court of Ms Ekta Sahota,Civil Judge (Jr. Div.), Ludhiana;

Civil Suit : CS – 52199/2013 titled as Gurbaksh SinghBA builders Pvt. Ltd. Vs. Radha Soami Satsang Beas &Canara Bank in the Court of Ms. Himanshi Galhotra,Civil Judge (Jr. Div.), Ludhiana;Civil Suit : CS – 52199/2013 titled as Gurbaksh SinghBA builders Pvt. Ltd. Vs. Radha Soami Satsang Beas &Canara Bank in the Court of Ms. Himanshi Galhotra,Civil Judge (Jr. Div.), Ludhiana;

The Contractor shall send its Authorized Representative to theabove mentioned Courts to make the statement of withdrawalbefore or on the next date of hearing, i.e. 24.05.14 and makeavailable the certified copy of the Statement made before, andof the Order passed by, the Hon’ble Courts.

5. That subsequent to the withdrawal of the above said legalcases, FHsL shall release the agreed settlement amount ofRs.1,84,00,000/- (Rupees One Crore, Eighty Four Lacs Only)after deduction of TDS and WCT as per Govt. rates onRs.2,00,00,000/(Rupees Two Crores Only), towards the agreedfull and final payment after deduction of tax as per prevailingGovt. rules through the cheque no. 000360 dated 22.05.14 forRs.1,84,00,000/- drawn on HDF Bank, K.G. Marg, New Delhi,in favour of Gurbakhsh Singh BA Builders Pvt. Ltd, i.e. theContractor. The remaining amount of Rs.30,10,094/- (RupeesThirty Lacs Ten Thousand Ninety Four Only) shall be kept asretention money for the defects liability period as mentioned in

clause 2 hereinabove and shall be released after the expiryperiod of the same subject to the submission of requisitedocuments as required by FHsL as mentioned in clause 3 of thisMOU.

9. The Contractor hereby assures and confirms that the finalagreed amount of Rs.2,00,00,000/- (Rupees Two Crore Only) isfull & final, is inclusive of all the contract fee, all taxes. Theamount shall be payable after deduction of tax as per prevailingGovt. rules by FHsL.

***************

11. Upon execution of this MoU, both the parties hereto shall bedeemed to have discharged and extinguished all its rights,duties, liabilities and obligations with respect to the mattersarising out of hospital.

12. This MoU constitutes the entire agreement between theParties hereto with respect to the subject matter of this Deedand supersedes all prior agreements and undertakings, writtenor oral, with respect to the subject matter hereof except asotherwise expressly provided herein or therein.”

15.As indicated above, in terms of clause 12, GBPL and Fortis hadagreed that the MoU would supersede all prior agreements in respect of thesubject matter of the MoU. GBPL does not dispute that the subject matter ofthe MoU covered the Agreement and the FoC. Thus, concededly, theagreements - the Agreement and the FoC - stood novated with the GBPLand Fortis entering into the MoU.

16.In Union of India v. Kishorilal Gupta and Bros. (supra), theSupreme Court examined the question whether an arbitration clause in an

agreement would survive novation of the said agreement. After referring toearlier decisions, Justice Subba Rao speaking for majority, held as under:-

"10. The following principles relevant to the present caseemerge from the aforesaid discussion : (1) An arbitrationclause is collateral term of contract as distinguished fromits substantive terms; but nonetheless it is an integral part ofit; (2) however comprehensive the terms of an arbitrationclause may be, the existence of the contract is necessarycondition for its operation; it perishes with the contract; (3)the contract may be non est in the sense that it never camelegally into existence or it was void ab initio; (4) though thecontract was validly executed, the parties may put an end toit as if it had never existed and substitute new contract for itsolely governing their rights and liabilities thereunder; (5) inthe former case, if the original contract has no legalexistence, the arbitration clause also cannot operate, foralong with the original contract, it is also void; in the lattercase, as the original contract is extinguished by thesubstituted one, the arbitration clause of the original contractperishes with it; and (6) between the two falls manycategories of disputes in connection with contract, such asthe question of repudiation, frustration, breach etc. In thosecases it is the performance of the contract that has come to anend, but the contract is still in existence for certain purposesin respect of disputes arising under it or in connection with it.As the contract subsists for certain purposes, the arbitrationclause operates in respect of these purposes.

11. We have held that the three contracts were settled and thethird settlement contract was in substitution of the threecontracts; and, after its execution, all the earlier contractswere extinguished and the arbitration clause containedtherein also perished along with them. We have also held thatthe new contract was not conditional one and after itsexecution the parties should work out their rights only under

its terms. In this view, the judgment of the High Court iscorrect. This appeal fails and is dismissed with costs."

17.There is no dispute that the subject matter of the MoU and of theagreements is the same - that is, construction of Fortis Hospital - and Fortiswas the assignee of RSSB; therefore the agreements stood novated and byvirtue of Section 62 of the Indian Contract Act, 1872, were not required tobe performed. Consequently, the arbitration clause contained therein alsoceased to be applicable and has perished.

18.The Supreme Court in recent decision inYoung Achievers v. IMSLearning Resources Private Limited: (2013) 10 SCC 535, has stated theabove principle in the following words:-

"An arbitration clause in an agreement cannot survive if theagreementcontainingarbitrationclausehasbeensuperseded/novated by later agreement".

19.Although it was not disputed that the arbitration clause in an earlieragreement would perish on novation, Mr Jain states that the MoU is invalidon account of being induced by undue influence, coercion and economicduress. This court is unable to accept this contention for several reasons.First of all, GBPL had already taken recourse to legal remedies and filedsuits before the Civil Judge, Ludhiana including to restrain RSSB frominvoking the bank guarantees. It is during the course of those proceedingsthat GBPL and Fortis had agreed to resolve their disputes. On 26.04.2014,the learned counsel for the parties had appeared before the Civil Judge,Ludhiana and had sought adjournment to explore the possibilities of

compromise.This is clearly evident from the order passed by the court,which reads as under:-

“The Ld. Counsel for both the parties have stated that there arechances of compromise between the parties. On joint request,case is adjourned to 24.05.2014 for compromise.”

20.It is apparent from the above that GBPL and Fortis entered into theMoU after negotiations and both parties had sufficient time to understandthe ramifications of the proposed settlement.

21.Secondly, GBPL and Fortis acted on the MoU and GBPL withdrewthe suits unconditionally.

22.Thirdly, GBPL had the assistance of legal advice and GBPL cannot beheard to state that it entered into the MoU without free consent.It ispossible that GBPL may have agreed for what it considered to be less than afair settlement, but whether to settle or litigate was entirely upto GBPL; and,that does not mean that GBPL entered into the MoU without free consent,rendering the MoU as void.

23.It is relevant to observe that the MoU clearly records Fortis to be theassignee of RSSB and it is not disputed that in terms of the Agreement, itwas open for the RSSB to assign its rights to third party without theconsent of GBPL. In the circumstances, it is clear that the MoU was enteredinto after due deliberation and negotiation and this court is unable to acceptthat the same should be ignored on mere allegation that the MoU wasentered into under duress.

24.Lastly, it is not disputed that the GBPL has enjoyed the benefit of theMoU. InDouble Dot Finance Limited v. Goyal MG Gases Limited AndAnr.: 2005 (1) Arb. LR 324 (Delhi), this Court had considered the questionwhether the party was entitled to raise the issue of coercion and undueinfluence after accepting payments in full and final settlement of its dues. Inthe aforesaid context, this Court had observed as under:-

“9.Coming to the question as to what is ''coercion'' or''duress'' in commercial contracts, we may refer to thecase of Privy Council case ''Pao On and Ors. v. Lau Yiuand Anr.'' reported in 1979 (3) of England ReporterPage-65. Economic duress in commercial context wasdealt with by their Lordships and it was held that incontractual relations, mere financial pressure is notenough. It was also held that the question as to whether atthe time the person making contract allegedly undercoercion had not any alternative course open to himwhich could be an adequate legal remedy and whetherafter entering into the contract, he took steps or not toavoid it are matters which are relevant for determining asto whether he acted voluntarily or not. It was also heldthat the compulsion has to be of nature which deprivesa party of his freedom of exercising free will leaving noalternative course open to him. Therefore, the 'coercion'or 'duress' required for vitiating 'free consent' has to be ofthe category under which the person under 'duress' is leftwith no other option but to give consent and is unable totake an independent decision, which is in his interest.Bargaining and thereafter accepting an offer by give andtake to solve one's financial difficulties cannot be treatedas 'coercion' or 'duress' for the reason that in trade andcommerce every day such situations arise and decisionsare taken by parties some of which they might not havetaken but for their immediate financial requirements andeconomic emergencies.”''duress'' in commercial contracts, we may refer to thecase of Privy Council case ''Pao On and Ors. v. Lau Yiuand Anr.'' reported in 1979 (3) of England ReporterPage-65. Economic duress in commercial context wasdealt with by their Lordships and it was held that incontractual relations, mere financial pressure is notenough. It was also held that the question as to whether atthe time the person making contract allegedly undercoercion had not any alternative course open to himwhich could be an adequate legal remedy and whetherafter entering into the contract, he took steps or not toavoid it are matters which are relevant for determining asto whether he acted voluntarily or not. It was also heldthat the compulsion has to be of nature which deprivesa party of his freedom of exercising free will leaving noalternative course open to him. Therefore, the 'coercion'or 'duress' required for vitiating 'free consent' has to be ofthe category under which the person under 'duress' is leftwith no other option but to give consent and is unable totake an independent decision, which is in his interest.Bargaining and thereafter accepting an offer by give andtake to solve one's financial difficulties cannot be treatedas 'coercion' or 'duress' for the reason that in trade andcommerce every day such situations arise and decisionsare taken by parties some of which they might not havetaken but for their immediate financial requirements andeconomic emergencies.”

25.In view of the above, GBPL's claim that there exists an arbitrationagreement between the parties, cannot be accepted.Accordingly, thepetition and the pending applications are dismissed.

MARCH 01, 2017pkv/MK

VIBHU BAKHRU, J