Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Interpretation of contract – Scope of objection u/s 34 of Arbitration Act -- As far as the construction of the terms of a contract is concerned, it is for the Arbitral Tribunal to adjudicate upon -- If, after considering the material on record, the Arbitral Tribunal takes a particular view on the interpretation of the contract, the Court u/s 34 does not sit in appeal over the findings of the arbitrator.

(Para 13)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 8 -- Agreement with arbitration clause – Subsequent final Settlement and MOU – Status of -- Where there is a subsequent Settlement Agreement, a valid contract can be extinguished -- Text of the Settlement Agreement is clear to the effect that this is a final settlement and MoU, with respect to the disputes and claims -- Arbitration clause in the original agreement would not be enforceable as this is a full and final settlement with respect to the contract and will be treated as a foreclosed document.

(Para 33)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9, 17, 36 – Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 2A -- Implementation of injunction order – Constitution of Arbitration Tribunal -- Petitioners seek an implementation of an order already passed by the Court when the Arbitral Tribunal had not yet been constituted – Commercial Court never lost jurisdiction to implement its own order by virtue of the powers conferred on it under Section 9(1)(ii)(e) -- Measures under Order XXXIX Rule 2A of the CPC for contempt of its orders, penal measures can be taken even after constitution of the Arbitral Tribunal.

(Para 25-29)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 2A – Violation of order of Court – Order XXXIX Rule 2A is not the only remedy for violation of an injunction order -- Implementation of an injunction order, if necessary even by reversal of the acts taken in violation of the same, can be sought from the same court which granted the injunction in the first place.

(Para 30)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 – Arbitration award – Objections -- While dealing with a petition u/s 34 of the 1996 Act, the Court concerned does not sit in appeal over the arbitral award and may interfere on merits on the limited grounds provided in Section 34 (2)(b)(ii) of the 1996 Act, i.e. if the award is against the public policy of the India -- Interference in an arbitral award would not entail a review of the merits of the dispute and would be limited to situations, where the findings of the Arbitrator are arbitrary or perverse or when the conscience of the Court is shocked, or when the illegality is not trivial but goes to the root of the matter -- An arbitral award, however, may not be interfered with, if the view taken by the arbitrator is a possible view based on facts.

(Para 7)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 – Arbitration award – No written response to claim -- Appellants did not submit any written response to the claim submitted by the respondent-HAFED and only made oral submissions – Arbitrator awarded the claim of recovery of Rs.26.01 lakh and accepted the claim in toto -- Arbitrator did not commit any illegality in doing so, especially, once the claim was not opposed in any manner and further, the respondent was able to prove its case through evidence of its District Manager.

(Para 9)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 8(2) – Arbitration clause in agreement -- Notarised copy of original agreement – Certified copy -- Petitioner/defendant filed the certified copy of the original agreement duly attested by the Notary Public which in terms of the law cannot be said to be a not duly certified copy of the original agreement as required under the provision of the Act -- Mandatory requirement under the Act had been complied with.

(Para 12, 24)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 8 -- Arbitration clause in agreement – Suit for declaration, injunction and consequential reliefs – Temporary injunction – Civil court has no jurisdiction to entertain the suit filed by the plaintiff -- Refusal by Court to refer dispute on ground that the said clause applies only to dispute connected with agreement is not proper -- On fulfilment of the conditions of Section 8, no option is left to the court and the court has to refer the parties to arbitration -- When it prima facie satisfies that the arbitration clause is valid and has the effect of mutual consent of the parties to the contract the court is bound to refer the parties to arbitration on satisfying all other ingredients mandated u/s 8 of the Arbitration and Conciliation Act.

(Para 13-22)

C. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 8 – Arbitration clause – Refer to arbitration -- Following conditions must be satisfied:

(a) that there exists an arbitration agreement;

(b) that action has been brought to the court by one party to the arbitration agreement against the other party;

(c) that the subject-matter of the suit is same as the subject-matter of the arbitration agreement;

(d) that the other party before he submits his first statement of the substance of the dispute, moves the court for referring the parties to arbitration; and

(e) that along with the application the other party tenders the original arbitration agreement or duly certified copy thereof.

(Para 17)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34, 37 – Arbitration appeal – Stay -- Substantive appeal pending against an order made on a petition u/s 34 of the Arbitration Act -- It will be appropriate if the interim stay continued till the disposal of the appeal -- If the appeal is not heard within a period of one year, it will be open for the respondent to make a fresh application in the pending appeal for withdrawal of the amount on appropriate terms and conditions.

(Para 3-5)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 46, 48, 49 -- Enforcement of foreign arbitration award – Bias -- Courts must endeavor to adopt international best practices instead of domestic standards, while determining bias -- It is only in exceptional circumstances that enforcement should be refused on the ground of bias -- Refusal of enforcement of foreign award should only be in a rare case where non-adherence to International Standards is clearly demonstrable.

(Para 26, 42)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 46, 48, 49 -- Arbitral appointments – Challenge to -- Bonafide challenges to arbitral appointments have to be made in a timely fashion and should not be used strategically to delay the enforcement process.

(Para 29)

C. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 46, 48, 49 -- Enforcement of foreign arbitration award – Bias -- Award-debtors failed to substantiate their allegation of bias, conflict of interest or the failure by the Presiding Arbitrator to render disclosure to the parties, as an objection to the enforcement of the award – Also failed to meet the high threshold for refusal of enforcement of a foreign award under Section 48 of the Indian Arbitration Act -- Accordingly, the decision given by the High Court for enforcement/ execution of the foreign award stands approved – Appeal dismissed.

 (Para 43)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11 – Limitation Act, 1963 (36 of 1963), Article 55 – Appointment of Arbitrator -- Time barred claim -- Petitioner waited for more than 12 years for the respondent to construct building -- It would be an unnatural construction of Section 11 of the 1996 Act or so-called time-barred claims where a party with a bona fide and a genuine claim is left in the lurch on the defence of the claim being barred by limitation in spite of the parties being in constant communication with each other for settlement of the claims -- Article 55 to the Schedule of The Limitation Act contemplates continuing breach of a contract -- Respondent withholding the money without due compliance of the MoU and failing to return the money to the petitioner for several years on one pretext or the other cannot argue the point of limitation particularly after having nominated its Arbitrator.

(Para 10)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11, 16 – Appointment of Arbitrator – Scope of -- In exercise of powers u/s 11(4)(6) of the Act of 1996 the Court has only to prima-facie examine the case of the parties to arrive at a prima-facie satisfaction that the parties before the High Court (i) have approached the correct Court for getting an arbitrator appointed, (ii) the arbitration clause subsist between the parties and the disputes are covered by the said clause -- Impact of Section 62 of the Contract Act, tripartite agreement and whether the disputes relate to construction stage and or the effect of Section 12 of the NHAI Act, 1988 can be considered by the Tribunal appropriately in terms of Section 16 of the Act of 1996 -- Once the satisfaction is formed, the Court is required to relegate to the parties to Tribunal.

(Para 16, 17)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11 – Appointment of Arbitrator – Respondent proceeded against ex parte -- Agreement specifically provided for resolution of dispute by way of arbitration -- A dispute having arisen, the petitioner invoked notice and served a notice but to no avail -- Keeping in view the specific provision for resolution of disputes by arbitration in the agreement and the respondent not having chosen to contest the petition, the petition allowed – Sole Arbitrator appointed.

(Para 2-5)

A. Code of Civil Procedure, 1908 (V of 1908), Order 5 Rule 15 – Service of summons -- Respondent is stated to have been served physically through a member of his family -- Respondent stands duly served -- None has appeared on behalf of the respondent, the respondent is proceeded against ex parte.

(Para 5, 6)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) -- Appointment of arbitrator -- Landlord-tenant dispute – Lease deed would show that the parties had specifically agreed for resolution of the disputes through arbitration -- Notice to the respondent had specifically been called upon for initiation of arbitration proceedings, but to no avail – Such disputes can be adjudicated by way of arbitration – District and Sessions Judge (Retd.) appointed as the sole Arbitrator.

(Para 6-10)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 – Arbitration award – Modification in award – Permissibility of --  Dispute amongst the contracting parties is to be referred to an Arbitrator but the question as regards payment of penal interest @ 21% per annum is to be taken by Managing Director, MARKFED whose decision shall be final – Arbitrator exceeded the jurisdiction by the decision regarding imposition of interest @ 21% per annum, which the Arbitrator could not have touched – Learned District Judge while adjudicating upon a petition u/s 34 of the Arbitration and Conciliation Act 1996 does not have any power to modify the award of the Arbitrator -- Award set aside.

(Para 8)

A. Multi State Co-operative Societies Act, 2002 (39 of 2002), Section 85(1)(a) -- Recovery of any sum -- Reference to Arbitrator -- Appellant was not only a member but also a shareholder of the respondent no.1 bank -- Appellant had purchased shares of the respondent no. 1 -- That being so, for the purposes of recovery of money with interest payable by the appellant to the respondent no. 1, the limitation period for referral of dispute to arbitration would be governed by Section 85(1)(a) of the Act and not by the provisions of the Limitation Act -- Since the appellant is alive and has not ceased to be a member of the respondent no. 1 bank, limitation period for referral of dispute did not even commence and therefore, the referral to arbitration was not bad in law.

(Para 13)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Objection u/s 34 of Arbitration Act, 1996 -- Scope of objections under Section 34 of the Act is quite limited and is not similar to the scope of appellate jurisdiction.

(Para 14)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) – Limitation Act, 1963 (36 of 1963), Article 137 -- Appointment of Arbitrator -- Limitation -- Cause of action -- If an infringement of a right happens at a particular time, the whole cause of action will be said to have arisen then and there -- In such a case, it is not open to a party to sit tight and not to file an application for settlement of dispute of his right, which had been infringed, within the time provided by the Limitation Act, and, allow his right to be extinguished by lapse of time, and thereafter, to wait for another cause of action and then file an application u/s 11 of the Act 1996 -- In such a case, such an application would mean an application for revival of a right, which had long been extinguished under the Act 1963 and is, therefore, dead for all purposes -- Such proceedings would not be maintainable and would obviously be met by the plea of limitation under Article 137 of the Act 1963.

(Para 58)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) – Limitation Act, 1963 (36 of 1963), Article 137 -- Appointment of Arbitrator – Limitation -- Cause of action – Extension of limitation -- Disputes arose between the parties in relation to the wrongful encashment of bank guarantee vide letter dated 16.02.2016 and for wrongful imposition of liquidated damages -- Respondent on 26.09.2016, deducted the amount towards recovery of the liquidated damages -- Requisite amount was credited into the Government account -- This was the end of the matter -- To say that even thereafter, the petitioner kept negotiating with the respondent in anticipation of some amicable settlement would not save the period of limitation -- When the bank guarantee came to be encashed in the year 2016 and the requisite amount stood transferred to the Government account that was the end of the matter -- This “Breaking Point” should be treated as the date at which the cause of action arose for the purpose of limitation.

(Para 59-62)

C. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) – Limitation Act, 1963 (36 of 1963), Article 137 -- Appointment of Arbitrator – Limitation -- Cause of action – Negotiation will not postpone cause of action -- Negotiations may continue even for a period of ten years or twenty years after the cause of action had arisen -- Mere negotiations will not postpone the “cause of action” for the purpose of limitation -- The Legislature has prescribed a limit of three years for the enforcement of a claim and this statutory time period cannot be defeated on the ground that the parties were negotiating.

(Para 63)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34, 36(2) – Arbitration award – Objection – Stay of award -- Petitioners were granted stay subject to deposit of 100% awarded amount in the form of an FDR in the name of the court -- Contention that no condition should have been imposed as the objections u/s 34 of the Act are pending lacks merit -- Pendency of objections in itself shall not operate as stay – No exceptional case made out for interference – Revision dismissed.

(Para 1, 8, 9)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6)(6A) – Jurisdiction of referral Court – Existence and validity of Arbitration agreement – Post-Arbitration and Conciliation Amendment Act, 2015, the jurisdiction of the court under Section 11(6) of the Act is limited to examining whether an arbitration agreement exists between the parties,  “nothing more, nothing less” -- Thus, as per the Section 11(6A) of the Act, it is the duty cast upon the referral court to consider the dispute/issue with respect to the existence of an arbitration agreement -- Matter remitted back to the High Court/ referral court to decide the respective arbitration petitions afresh and to decide the issue conclusively and finally with respect to the existence and validity of the arbitration agreement.

(Para 5.2-8)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34, 36 -- Objection to arbitration award – Stay of execution of arbitration award -- Pendency of objections under Section 34 of the Act does not result in automatic stay.

(Para 8)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31(5), 34 -- Arbitration award – Limitation to file objections --  Ex-parte award on 13.6.2008, objections filed on 2.6.2009 – Objections dismissed as time barred – Limitation to file objections starts from the date of receipt of the award -- Impugned order passed without recording a finding that signed copy of the award was delivered to the appellant – Order set aside, matter remitted back to decide objections afresh.

(Para 2-7)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31(5), 34, 37 – Ex parte award -- Objections were dismissed as time barred – Section 31(5) of the Act provides that the Arbitrator is obliged to supply the signed copy of the arbitral award to each of the parties -- Nothing on record to prove that the signed copy of the arbitral award was supplied to the appellant – Appeal allowed, impugned order set aside, the matter remitted back for deciding the objections on merits.

(Para 2-7)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 8 – Arbitration clause – Tripartite agreement – Subsequent purchaser – Except the principal agreement, none of the other agreements contained any arbitration clause -- Later transactions involved other parties too like the tripartite agreement -- Other deeds of conveyance involve the appellant and the other defendants – In the frame of the suit and various other reliefs claimed, involving subsequent purchasers too and the allegations of fraud, the dispute cannot be said to be arbitrable at all – Reference to arbitration u/s 8 cannot be granted.

(Para 17, 18)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 8 -- Specific Relief Act, 1963 (47 of 1963), Section 31 -- Arbitration clause in agreement – Cancellation of agreement -- Reference to arbitration -- It is impossible to hold that an action instituted u/s 31 of the Specific Relief for cancellation of an instrument is an action in rem – Ld. Trial Judge was justified in passing an order u/s 8 of the Arbitration Act by directing that the dispute be referred to the arbitration. Deccan Paper Mills’ case (2021) 4 SCC 786 = (2020) Law Today Live Doc. Id. 15259 relied.

(Para 8)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Objection to arbitration award – Modification of award – Remand of matter – Permissibility of -- Under Section 34 of 1996 Act the award cannot be modified and the matter can be remanded only with consent of both the parties.

(Para 10)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Objection to arbitration award – Setting aside of award – Alternative remedy -- Contention that the parties have no remedy after setting aside of award to raise grievances against the compensation determined is misconceived -- Setting aside of award on the ground of jurisdiction shall not debar the parties from availing the remedies in accordance with law.

(Para 10)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) – Appointment of Arbitrator -- Eye of the Needle – Pre-referral jurisdiction of the courts u/s 11(6) of the Act is very narrow and inheres two inquiries:

-- The primary inquiry is about the existence and the validity of an arbitration agreement, which also includes an inquiry as to the parties to the agreement and the applicant’s privity to the said agreement. These are matters which require a thorough examination by the referral court.

-- The secondary inquiry that may arise at the reference stage itself is with respect to the non-arbitrability of the dispute.

(Para 25)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) – Appointment of Arbitrator -- Settlement between the parties during the pendency of the Writ Petition -- In compliance with the Settlement Agreement, NTPC released the Bank Guarantees, which were the subject matter of the pending Writ Petition -- SPML withdrew the Writ Petition – One month later, SPML filed the Arbitration Petition u/s 11(6) of the Act alleging coercion and economic duress in the execution of the Settlement Agreement -- SPML’s allegations lack bona fide -- These are the kinds of cases where the High Court should exercise the restricted and limited review to check and protect parties from being forced to arbitrate – Held, High Court has committed an error in allowing the application u/s 11(6) of the Act – Decision of the High Court set aside.

(Para 1, 38-41)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Limitation Act, 1963 (36 of 1963), Section 5 -- Arbitration award – Objection after 120 days – Condonation of delay -- Application u/s 34 of the Act beyond the period of 120 days i.e. 90 days of limitation and 30 days period -- Section 5 of the Limitation Act is not applicable -- Delay beyond 30 days after expiry of limitation period cannot be condoned.

(Para 6)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Objection against arbitration award – Remand of matter – Permissibility of -- Court after setting aside the award could not have remanded the matter -- Appeal allowed, impugned order to the extent of remanding the matter back to the Managing Director for appointment of the arbitrator is set aside.

(Para 5, 6)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 33(3), 34 -- Correction in award – Limitation to file objection -- Starting point for the limitation in case of suo-moto correction of the award, would be the date on which the correction was made and the corrected award is received by the party.

(Para 2)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31, 34, 36 -- Arbitration award – Stay of -- It is a well-established that the arbitral award cannot be stayed in routine -- A due regard has to be given to the provisions for grant of stay of money decree under the Code of Civil Procedure -- Unconditional stay can only be granted in case, the award is suffered with fraud or corruption.

(Para 10)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 8 -- Theft of electricity -- Arbitration clause – Trial court referred the matter to Arbitrator – Challenge to -- District Consumer Forum dismissed the complaint for the reason of the same being not maintainable -- It cannot be said that the defendants have waived their right to seek arbitration and subjected themselves to the jurisdiction of the Court -- Agreement does not exclude the matters with regard to theft of electricity from its preview -- Therefore, such type of dispute can definitely be adjudicated upon by the Arbitrator -- No fault can be found with the Court in making reference of dispute to arbitration -- Revision petition dismissed.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Arbitration and Conciliation Act, 1996 (26 of 1996), Section 8 – Suit for recovery – Arbitration clause – Application for referring the matter to Arbitrator dismissed by Trial Court – Revision against the order -- Liability not disputed by the petitioners – Arbitration Clause related to dispute arising out of or in connection with the work order/ contract/ purchase order –Operation of the agreement ceases once the respondent has completed the work project – It is plain and simply a case of non-payment of dues – Arbitration clause not applicable to the case – Even the condition for amicable settlement was not adhered to by the petitioner – No error in the impugned order, revision petition dismissed.

(Para 7-9)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Code of Civil Procedure, 1908 (V of 1908), Section 24 – Transfer of objection petition against arbitral award -- Execution Application at Patiala -- Objections u/s 34 at Sangrur – As per law laid down by the Hon’ble Supreme Court, seat of arbitration alone would have exclusive jurisdiction over subsequent proceedings -- Transfer petition allowed and Section 34 Objections transferred from the Court of ADJ, Sangrur to the Court of ld. ADJ, Patiala. BGS SGS Soma JV’s case Law Finder Doc Id # 1640616 relied.

(Para 1-5)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11 – Appointment of Arbitrator – Time barred claim -- Petitioner not supposed to wait till 22.04.2015 in respect of alleged cause of action which accrued in favour of the petitioner either on 12.10.2001 or 07.01.2003 -- Notice of invocation of arbitration clause was done for the first time on 22.04.2015 -- Claim of the petitioner ex facie time barred --  Petition dismissed. BSNL's case (2021) 5 SCC 738 and Securderabad Cantonment Board's case 2021 (5) SCC 705 relied.

(Para 8-11)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 8, 11 –Code of Civil Procedure, 1908 (V of 1908), Section 9 – Civil suit -- Application for referring the matter to Arbitrator -- The provisions of Sections 8 and 11 of the Act are complementary to each other and there is no bar to invoke jurisdiction of the High Court u/s 11 (6) of the Act during pendency of the application u/s 8 of the Act.

(Para 3)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) -- Court Fees Act, 1870 (7 of 1870), Section 16, 69-A -- Code of Civil Procedure, 1908 (V of 1908), Section 89 – Civil suit -- Settlement to refer the matter to Arbitrator-- Refund of court fees -- Refund of Court fee cannot be denied merely because the matter has not been settled before the Lok Adalat – Liberty granted to approach the trial Court for refund of the court fee in question and for availing the benefit under the Court Fee Act.

(Para 4-8)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) -- Appointment of Arbitrator -- Application rejected by High Court as there were already arbitral proceedings pending between the parties -- Considering the fact that Agreement entered into between the appellants and the respondent contains an arbitration clause, High Court ought to have allowed the application u/s 11 of 1996 Act and ought to have left the issue on arbitrability of the dispute to the arbitrator.

(Para 5, 5.2, 5.3)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) – Appointment of Arbitrator – Effect of NCLT proceedings -- Pendency of proceedings before the NCLT, at the instance of the respondent as minority shareholder for oppression and mismanagement, cannot  be the basis for dismissing an application u/s 11(6) of 1996 Act for appointment of an arbitrator – It should be left to the arbitrator to consider the entire aspect.

(Para 5.4)

Commercial Courts Act, 2015 (4 of 2016), Section 3, 10, 15, 21 – Arbitration and Conciliation Act, 1996 (26 of 1996), Section 2(1)(e), 9, 14, 34 – Arbitration matters in Commercial court -- Whether in exercise of powers u/s 3 of the Commercial Courts Act, 2015, the State Government can confer jurisdiction to hear applications u/s 9, 14 and 34 of the Arbitration and Conciliation Act, 1996, upon Commercial Courts which are subordinate to the rank of the Principal Civil Judge in the District, contrary to the provisions of Section 2(1)(e) of the Arbitration Act? – Held, the Act, 2015 is the Act later in time and therefore when the Act, 2015 has been enacted, more particularly Sections 3 & 10, there was already a provision contained in Section 2(1)(e) of the Act, 1996 -- As per settled position of law, it is to be presumed that while enacting the subsequent law, the legislature is conscious of the provisions of the Act prior in time and therefore the later Act shall prevail -- There cannot be two fora with respect to different commercial disputes.

(Para 10,11)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31(7) -- Arbitration award -- Interest on pre-reference period -- Though final measurement was done on 30st August 1977, for a period of twelve years, i.e., till 25th July 1989, the respondent did not take any step to raise his claim -- It is only on that date, i.e., 25th July 1989, the respondent issued a notice to the appellants regarding his claim -- As such, the very conduct of the respondent for remaining silent for such a long period would disentitle him for the interest during the said period.

(Para 12)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31(7) -- Arbitration award -- Interest on period pendente lite -- Though a decree was passed on 14^th February 1990 and the respondent was directed to file the original agreement, he took no step till 4th February 2000 – Had he filed the original agreement immediately after the decree was passed on 14th February 1990, the arbitration proceedings would have commenced and concluded immediately thereafter -- As such, the learned Arbitrator was not justified in awarding interest for the period from 14th February 1990 to 4^th February 2000 -- A party cannot be permitted to derive benefits from its own lapses -- Application for appointment of an arbitrator u/s 11 of the 1996 Act before the High Court was allowed on 15th October 2001 -- Respondent would not be entitled for interest for the period from 14th February 1990 to 15th October 2001.

(Para 13, 14)

C. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31(7) -- Arbitration award – Interest thereupon -- Arbitrator, without assigning any reasons awarded the interest @ 18% per annum for the period during which the proceedings were pending and also at the same rate after the award was made till the actual payment – Interest reduced for pre-reference period, pendente lite and post-award period to @ 9% per annum.

(Para 11, 21)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9(ii)(e) -- Code of Civil Procedure, 1908 (V of 1908), Order 37 Rule 5 – Interim order by Arbitrator to deposit bank guarantee -- Commercial Court passed the order u/s 9(ii)(e) of the Arbitration Act, 1996 to secure the amount in dispute, confirmed by High Court -- Held, unless and until the pre-conditions under Order XXXVIII Rule 5 of the CPC are satisfied and unless there are specific allegations with cogent material and unless prima-facie the Court is satisfied that the appellant is likely to defeat the decree/award that may be passed by the arbitrator by disposing of the properties and/or in any other manner, the Commercial Court could not have passed such an order in exercise of powers u/s 9 of the Act, 1996 -- There are very serious disputes on the amount claimed by the rival parties, which are to be adjudicated upon in the proceedings before the arbitral tribunal – Impugned judgment and order, directing the appellant to deposit the amount of performance bank guarantees quashed and set aside -- However, direction given that appellant shall furnish an undertaking backed by the Resolution of the appellant’s company before the Commercial Court that in case any award is passed by the learned Arbitrator in arbitration proceedings, the same shall be paid/honoured by the appellant subject to the challenge before the higher forum.

(Para 4, 5)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(5)(6) – Appointment of Arbitrator -- Preliminary enquiry – Requirement of -- Specific plea that dispute falls within Clause 36 and not under Clause 37 and therefore, the dispute is not arbitrable -- High Court was at least required to hold a primary inquiry/review and prima facie come to conclusion on whether the dispute falls under Clause 36 or not and whether the dispute is arbitrable or not – Matter remitted back to the High Court to hold a preliminary inquiry.

(Para 7)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9, 36 – Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 -- Securing the amount -- Attachment before judgment – Absence of averment -- Section 9 of the Arbitration Act confers wide power on the Court to pass orders securing the amount in dispute in arbitration, whether before the commencement of the arbitral proceedings, during the arbitral proceedings or at any time after making of the arbitral award, but before its enforcement in accordance with Section 36 of the Arbitration Act – Court exercising power u/s 9 of the Arbitration Act should not withhold relief on the mere technicality of absence of averments, incorporating the grounds for attachment before judgment under Order 38 Rule 5 of the CPC.

(Para 49)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9 – Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 -- Securing the amount – Interim relief -- Attachment before judgment – Proof of actual attempts to deal with, remove or dispose of the property with a view to defeat or delay the realisation of an impending Arbitral Award is not imperative for grant of relief u/s 9 of the Arbitration Act -- A strong possibility of diminution of assets would suffice.

(Para 50)

C. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9, 37 – Code of Civil Procedure, 1908 (V of 1908), Order 38 Rule 5 -- Securing the amount by interim relief -- Essar House Private directed to deposit an amount of Rs.35.5 crores with the Prothonotary and Senior Master of the High Court or, in the alternative, to furnish bank guarantee of any nationalised bank for the entire amount along with interest thereon – Prima facie, the refundable security deposit is not being released to Arcellor on the purported ground of a convoluted series of internal arrangements between group companies for diversion of the security deposits towards liquidation of alleged dues of Essar Steel to third parties -- No infirmity in the well-reasoned judgment and order of the Division Bench -- Appeals dismissed.

(Para 2, 51)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31(7)(a)(b) – “unless otherwise agreed by the parties” -- “unless the award otherwise directs” – Post-award interest -- The words, “unless otherwise agreed by the parties” occurs at the beginning of clause (a) qualifying the entire provision -- However, in clause (b), the words, “unless the award otherwise directs” occurs after the words ‘a sum directed to be paid by an arbitral award shall’ and before the words ‘carry interest at the rate of eighteen per cent” -- Thereby, those words only qualify the rate of post-award interest.

(Para 18)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31(7)(a)(b) – Arbitration award -- Pre-award interest – Post-award interest – Discretion of Arbitrator -- Section 31(7)(a) confers a wide discretion upon the arbitrator in regard to the grant of pre-award interest -- Arbitrator has the discretion to determine the rate of reasonable interest, the sum on which the interest is to be paid, that is whether on the whole or any part of the principal amount, and the period for which payment of interest is to be made, whether it should be for the whole or any part of the period between the date on which the cause of action arose and the date of the award -- When a discretion has been conferred on the arbitrator in regard to the grant of pre-award interest, it would be against the grain of statutory interpretation to presuppose that the legislative intent was to reduce the discretionary power of the arbitrator for the grant of post-award interest under clause (b) -- Clause (b) only contemplates a situation where the arbitration award is silent on post-award interest, in which event the award-holder is entitled to a post-award interest of eighteen percent.

(Para 19)

C. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31(7)(b) – Arbitration award -- Post-award interest – Discretion of Arbitrator -- Clause (b) does not fetter the discretion of the arbitrator to grant post-award interest -- It only contemplates a situation in which the discretion is not exercised by the arbitrator -- Therefore, the observations Hyder Consulting’s case (2013) 2 SCC 719 on the meaning of ‘sum’ will not restrict the discretion of the arbitrator to grant post-award interest -- There is nothing in the provision which restricts the discretion of the arbitrator for the grant of post-award interest which the arbitrator otherwise holds inherent to their authority.

(Para 19)

D. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31(7)(b) – Arbitration award – Purpose of Post-award interest – Discretion of Arbitrator -- Purpose of granting post-award interest is to ensure that the award-debtor does not delay the payment of the award -- With the proliferation of arbitration, issues involving both high and low financial implications are referred to arbitration -- Arbitrator takes note of various factors such as the financial standing of the award-debtor and the circumstances of the parties in dispute before awarding interest -- Discretion of the arbitrator can only be restricted by an express provision to that effect -- Clause (a) subjects the exercise of discretion by the arbitrator on the grant of pre-award interest to the arbitral award -- However, there is no provision in the Act which restricts the exercise of discretion to grant post-award interest by the arbitrator -- Arbitrator must exercise the discretion in good faith, must take into account relevant and not irrelevant considerations, and must act reasonably and rationally taking cognizance of the surrounding circumstances.

(Para 21)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9, 11 – Renewal of hotel lease by State -- Issue of arbitrability of the dispute – Impact of State policy over clauses of lease deed -- Clause 4(xiii) of lease-deed read with Clause 3 provides that initial term of the lease shall be 24 years and it "shall" be renewable on acceptance of lessee’s offer in terms of Clause 4(xiii) -- Prima facie, expression “shall” connotes a command – If the lessee offered its terms for renewal or extension of the lease within the stipulated time, same was to be accepted -- If quantum of rent or period of lease was not mutually agreed upon, same was to be referred to arbitration – Contended that as the Respondent State had not accepted the offer made by the Appellant, there was no case for arbitration – It is well settled that clauses in a lease deed cannot be read and construed in isolation -- Lease deed is to be construed as a whole – Arbitration clause cannot be rendered otiose by refusal of the Respondent State to renew the lease -- Respondent State may have formulated a policy for encouraging self-employment of local youth who are duly qualified and competent to run the hotel -- Such policy decision cannot impact an existing agreement with a renewal clause -- All disputes between the parties to the lease with regard to renewal and/or non-renewal, the period of renewal and the quantum of rent would have be decided by the Arbitrator -- Issue of arbitrability of the dispute over non-renewal of the lease is within the realm of the Arbitral Tribunal/Arbitrator.

(Para 15-19)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 9, 11(6), 42 – Jurisdiction of High Court -- Application u/s 9 of the Arbitration Act at Vishakhapatnam (A.P.) – High Court of Andhra Pradesh at Hyderabad alone would have jurisdiction to decide the subsequent applications arising out of the Contract Agreement and the further arbitral proceedings shall have to be made in the High court of Andhra Pradesh at Amaravati alone and in no other court -- High Court of Orissa at Cuttack has committed a serious error in entertaining the application u/s 11(6) of the Act and appointing the sole arbitrator – Order appointing the sole arbitrator quashed.

(Para 7.1, 8)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11 – Appointment of Arbitrator -- Jurisdiction of Arbitration Tribunal -- Dispute is non-arbitrable or not – Decision upon – Stage of -- Though the Arbitral Tribunal may have jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability, the same can also be considered by the Court at the stage of deciding Section 11 application if the facts are very clear and glaring and in view of the specific clauses in the agreement binding between the parties, whether the dispute is non-arbitrable and/or it falls within the excepted clause.

(Para 13)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11 – Appointment of Arbitrator -- Accord and satisfaction of claim -- Decision upon – Stage of – Aspect with regard to ‘accord and satisfaction’ of the claims may/can be considered by the Court at the stage of deciding Section 11 application, it is always advisable and appropriate that in cases of debatable and disputable facts, good reasonably arguable case, the same should be left to the Arbitral Tribunal

(Para 13)

C. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11 – Appointment of Arbitrator -- Parties to the contract are free to agree on applicability of (1) proper law of contract, (2) proper law of arbitration agreement and (3) proper law of the conduct of arbitration -- Parties to the contract also may agree for matters excluded from the purview of arbitration – Contract provided for exclusion of some matters from the purview of arbitration -- A senior officer of the department was given the authority and power to adjudicate the same – One of the clauses provided that the decision of the Senior Officer, being the Adjudicator, shall be final and binding between the parties – Dispute whether the claim is a Notified Claim or not is specifically excluded from the scope, purview and ambit of the arbitration agreement -- Therefore, once such a dispute falls within the ‘excepted matters’, any decision by the General Manager on the issue of Notified Claims cannot be the subject matter of arbitration proceeding.

(Para 13.3, 13.4)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(5) -- Appointment of Arbitrator – Clause of appointing Sole Arbitrator by M.D. of respondent-Corporation – Sole Arbitrator appointed by the M.D of respondent-Corporation cannot be an impediment for appointment of an independent sole Arbitrator in the  present petition – Retired Justice appointed as the Sole Arbitrator to resolve all the disputes/differences between the parties arising out of agreement.

(Para 2-8)

A. National Highways Act, 1956 (48 of 1956), Section 3G -- Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Sections 26, 27, 28, 31(3) – Acquisition of land under National Highway Act -- Market value and compensation for acquired land -- Determination of -- Ld. Arbitrator in cases for determination of market value and compensation should indicate reasons since the same will have to be arrived at on a comparative analysis for which the reasons should be recorded and Section 26 to 28 of RFCTLARR Act will be relevant -- Neither the land loser nor the exchequer should suffer in the matter of just and fair compensation -- Hence the reasons under Section 31(3) is to be expected in that manner, the absence of which will call for interference u/s 34 of Act, 1996.

(Para 23)

B. National Highways Act, 1956 (48 of 1956), Section 3G -- Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Sections 26, 27, 28, 31(3) – Acquisition of land under National Highway Act -- Market value and compensation for acquired land -- Determination of – Award of Arbitrator – Challenge to – Scope of -- While examining the award in the limited scope u/s 34 of Act, 1996, the Court is required to take note as to whether the evidence available on record has been adverted to and has been taken note by the Arbitrator in determining the just compensation failing which it will fall foul of Section 31(3) and amount to patent illegality -- While examining the award within the parameters permissible u/s 34 of Act, 1996 and while examining the determination of compensation as provided u/s 26 and 28 of the RFCTLARR Act, 2013, the concept of just compensation for the acquired land should be kept in view while taking note of the award considering the sufficiency of the reasons given in the award for the ultimate conclusion.

(Para 24)

C. National Highways Act, 1956 (48 of 1956), Section 3G -- Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34, 37 -- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Sections 26, 27, 28, 31(3) – Acquisition of land under National Highway Act -- Market value and compensation for acquired land -- Award of Arbitrator – Error in award – Scope u/s 34 and 37 of Arbitration Act, 1996 -- It would not be possible for the Court entertaining the petition u/s 34 or for the appellate court u/s 37 of Act 1996 to modify the award and alter the compensation as it was open to the court in the reference proceedings u/s 18 of the old Land Acquisition Act or an appeal u/s 54 of that act, it should certainly be open to the court exercising power u/s 34 of Act, 1996 to set aside the award by indicating reasons and remitting the matter to the Arbitrator to reconsider the same in accordance with law in terms of Section 34(4)

(Para 24, 40)

D. National Highways Act, 1956 (48 of 1956), Section 3G -- Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Sections 26, 27, 28, 31(3) – Acquisition of land under National Highway Act -- Market value and compensation for acquired land -- Assessment of -- Where a document which is proximal to the date of acquisition is not available, it would be open to rely on a document which is much prior in point of time and if the time gap is more, determination could be made by providing for reasonable escalation depending on the area wherein the acquired property is situate and nature of property -- Similarly, in a circumstance where no document which is prior to the date of the acquisition notification is available and the exemplars are subsequent to the date of acquisition notification, the value therein could be noted and reasonable de-escalation be considered to determine the appropriate value -- No strait-jacket formula can be applicable to all cases with arithmetical precision in the matter of determination of compensation.

(Para 32)

E. National Highways Act, 1956 (48 of 1956), Section 3G -- Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34, 37 -- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Sections 26, 27, 28, 31(3) – Acquisition of land under National Highway Act -- Market value and compensating for acquired land -- Patent illegality in award -- Ld. Arbitrator has committed patent illegality in applying two different notifications in determining the market value -- Only course open is to set aside the award and allow the ld. Arbitrator to reconsider the matter.

(Para 48)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 31(7)(a) -- Power/ Discretion of Arbitration Tribunal -- Interest on arbitration award -- Agreement to the contrary – Interpretation of the language employed by the legislature, the position that would emerge, on an analysis of clause (a) of sub-section (7) of Section 31 of the 1996 Act, is as under:

(i) It begins with the words “Unless otherwise agreed by the parties”;

(ii) where and insofar as an arbitral award is for the payment of money, the Arbitral Tribunal may include interest component in the sum for which the award is made;

(iii) the interest may be at such rate as the Arbitral Tribunal deems reasonable;

(iv) the interest may be on the whole or any part of the money;

(v) the interest may be for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.

Power of the Arbitral Tribunal to award interest, would operate if it is not otherwise agreed by the parties -- If there is an agreement between the parties to the contrary, the Arbitral Tribunal would lose its discretion to award interest and will have to be guided by the agreement between the parties -- Discretion is wide enough -- It may grant or may not grant interest -- It may grant interest for the entire period or any part thereof -- It may also grant interest on the whole or any part of the money.

(Para 15-22)

Arbitration Act, 1940 (10 of 1940), Section 39 -- Constitution of India, Article 226, 227 -- Arbitration award -- Alternative statutory remedy available by way of appeal – Writ jurisdiction – When the statute provides a further remedy by way of appeal against the award and even against the order passed by the learned trial Court making the award a decree of the court, the High Court ought not to have entertained the writ petition and ought not to have set aside the award, in a writ petition -- Impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside -- Liberty reserved in favour of the respondent to take further recourse to law under the provisions of the Arbitration Act, 1940 and in accordance with law -- If such proceedings are initiated within a period of four weeks, the same be considered in accordance with law and on its own merits without raising the issue with regard to limitation.

(Para 2-5)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11 -- Arbitration clause – Impounding of document/ Loan agreement – Power of Arbitrator -- Unless and until the same is produced on record before any Court/Tribunal, there is no question of any impounding the same -- Arbitrator may take call on the impounding of document provided it is produced by the original claimant.

(Para 3)

Arbitration and Conciliation Act, 1996 (26 of 1996), Section 33 – Arbitration Award – Modification in – Power of -- Original award was as per the original claim made by the respondent in the statement of claim -- Application u/s 33 for modification of award as per the market value of 3648.80 grams of pure gold at Rs.20,747/- per 10 grams, instead of Rs.740 per gram – Ld. Arbitrator allowed the said application and modified the original award – Held, only in a case of arithmetical and/or clerical error, the award can be modified and such errors only can be corrected -- Order passed by the Ld. Arbitrator is beyond the scope and ambit of Section 33 of the 1996 Act – Same deserves to be quashed and set aside -- Consequently, the original award passed by the learned arbitrator stands restored.

(Para 11-13)

National Highways Act, 1956 (48 of 1956), Section 3G – Arbitration and Conciliation Act, 1996 (26 of 1996), Section 34 -- Constitution of India, Article 226 -- Acquisition of land – Award by Arbitrator – Writ jurisdiction -- Competent authority assessed the amount of compensation, matter referred to arbitrator for re-assessment -- As per sub-section 6 of Section 3G the provisions of the Arbitration and Conciliation Act, 1996 shall apply to every arbitration under the Act -- Objections to the award of the Arbitrator are maintainable before the District Court -- Court did not find it appropriate to exercise its writ jurisdiction.

(Para 2-6)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11, 29-A, 43 -- Limitation Act, 1963 (36 of 1963), Section 43, Article 137 -- Appointment of Arbitrator -- Limitation of 3 years – No provision in Arbitration Act specifying period of limitation for filing an application u/s 11 of the Act -- One would have to take recourse to the Limitation Act, 1963, as per Section 43 of the Arbitration Act and it would be covered by the residual provision Article 137 of the Limitation Act, 1963 -- Section 29A mandates that the arbitral tribunal will conclude the proceedings within a period of 18 months -- In view of the legislative intent, the period of 3 years for filing an application u/s 11 would run contrary to the scheme of the Act -- It would be necessary for Parliament to effect an amendment to Section 11, prescribing a specific period of limitation within which a party may move the court for making an application for appointment of the arbitration under Section 11 of the 1996 Act.

(Para 9, 10, 13-17)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6A), 16 -- Objection to arbitration -- Preliminary objections – Jurisdiction of – Doctrine of kompetenz-komptenz -- Court is required only to examine the existence of the arbitration agreement -- All other preliminary or threshold issues are left to be decided by the arbitrator u/s 16 -- 2019 Amendment Act has deleted sub-section (6A) in Section 11, however, the same is yet to be notified -- Consequently, sub-section (6A) continues to remain on the statute book, and governs the scope of power under Section 11 for the present.

(Para 26)

C. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11  -- Issue of Limitation – Jurisdiction of Arbitration Tribunal -- Issue of limitation, in essence, goes to the maintainability or admissibility of the claim, which is to be decided by the arbitral tribunal as a preliminary issue, or at the final stage after evidence is led by the parties.

(Para 32-35)

D. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11  -- Issue of Limitation – Time-barred claim – Power of Court – Scope of -- It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference -- However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal.

(Para 37)

E. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11  -- Issue of limitation -- Notice invoking arbitration was issued 5 ½ years after rejection of the claims -- Consequently, the notice invoking arbitration is ex facie time barred, and the disputes between the parties cannot be referred to arbitration in the facts of the case -- Application filed u/s 11 dismissed.

(Para 38-41)

F. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11  -- Limitation Act, 1963 (36 of 1963), Section 5 to 20 -- Arbitration of dispute -- Period of limitation for issuing notice of arbitration would not get extended by mere exchange of letters or mere settlement discussions, where a final bill is rejected by making deductions or otherwise -- Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement discussions -- There must be a clear notice invoking arbitration setting out the “particular dispute” (including claims / amounts) which must be received by the other party within a period of 3 years from the rejection of a final bill, failing which, the time bar would prevail.

(Para 39)

G. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11 -- Limitation Act, 1963 (36 of 1963), Section 43, Article 137 -- Limitation for Arbitration -- Period of limitation for filing an application u/s 11 would be governed by Article 137 of the First Schedule of the Limitation Act, 1963 -- Period of limitation will begin to run from the date when there is failure to appoint the arbitrator -- It has been suggested that the Parliament may consider amending Section 11 of the 1996 Act to provide a period of limitation for filing an application under this provision, which is in consonance with the object of expeditious disposal of arbitration proceedings; -- In rare and exceptional cases, where the claims are ex facie time-barred, and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference.

(Para 40)