Patherya, J.:— The Court : By order dated 20th March, 2009 the respondent no. 1 was restrained from taking steps in respect of the sales contracts being the subject matter of the instant suit. Such interim order has been extended from time to time. The restraint order was passed on the premise that there was no arbitration agreement existing between the parties under Section 7 of the 1996 Act.
On the returnable date Counsel for the respondents seeks vacating of the said order on the ground that the sales contract annexed is not a proposal but is in fact a confirmation of the agreement between the parties and no further negotiation was needed. Although the sales contract has been annexed but the brokers' contract has not been annexed. In transaction of this kind it is usually the broker through whom the contract is negotiated and finalized. For suppression of the brokers' contract this application ought to be dismissed. The sales contract dated 22nd July, 2008 and the subsequent sales contract evidences a concluded contract between the parties. Although the buyer was asked to stamp, sign and return the copy of the sales confirmation it was made clear that the validity of the contract would be unaffected in case of nonreturn. Therefore, by conduct there has been acceptance and the said is the usual procedure followed. In view of the confirmation and the concluded contract the arbitration agreement therefore between the parties exists and it is only after the arbitration clause was invoked that the suit has been filed. For the said reasons the order dated 20th March, 2009 be vacated.
Counsel for the petitioner, in reply, submits that a confirmation is necessary as will appear from the Electronic Mail dated 3rd April, 2009. Therefore, the practice has been to issue a confirmation. In sales contract dated 22 July, 2008 and the sales contract subsequent thereto the essentials of Section 7 of the 1996 Act do not exist. Therefore the arbitration agreement is not in existence and the arbitration clause cannot be invoked.
Having considered the submissions of the parties the sales contract dated 22 July, 2008 confirms the business between the parties and therefore it needs no further confirmation from the petitioner. In fact from the Electronic Mail relied on it will appear that a confirmation has been issued. This Electronic Mail is pursuant to the filing of the suit and no document of confirmation has been produced prior to the filing of the suit wherefrom it will appear that a confirmation was necessary even after issuance of sales contract. The endorsement on the last page of the sales contract makes it clear that the sales contract was a confirmation of sales and even though not despatched with signature the validity of the contract would remain unaffected. From a reading of the sales contract it is evident that a concluded contract was entered into between the parties and such contract contained an arbitration clause. Therefore, the parties were entitled to invoke the arbitration clause. For all the said reasons there exists no reason to continue the order dated 20 March, 2009 by which the arbitration proceedings had been restrained, and the same is vacated.
Another reason for vacating the order dated 20 March, 2009 is the consensual agreement between the parties to refer the disputes to arbitration and the parties did so with full knowledge of its implication. Therefore, the parties must be bound by the solemn agreement entered into between themselves.
Directions are given for filing affidavits.
Affidavit-in-opposition be filed within a fortnight from date; affidavit-in-reply, if any, be filed within a week thereafter. Matter to appear in the list four weeks hence.
All parties to act on a xerox signed copy of this order on the usual undertakings.