Invocation of Arbitration Clause Post Compromise Decree

Posted On - 16 September, 2019 • By - Priyanka Ajjannavar

The bench consisting of Justice R. Banumati and Justice A.S. Bopanna of Hon’ble Supreme Court of India in judgment dated 30th July 2019, in the matter of Zeninth Drugs & Allied Agencies Pvt. Ltd. v. Nicholas Primal India Pvt. Ltd.[1] held that “since there is no arbitration clause relating to the dispute, hence plea could be decided only by the Civil Court, without invoking the Arbitration clause under the agreement”.


The Zenith Drugs & Allied Agencies
Pvt. Ltd
(“Appellant Company”) ) is a company involved in various types
of agency businesses including the business of clearing and forwarding agents,
freight contractors, etc.

Rhone Poulene India
Limited (RPIL) vide agreement dated 01.05.1997 appointed the Appellant Company
as its clearing and forwarding agent wherein clause No. 17 of the said
agreement contained a clause on arbitration.

The Appellant Company filed a title suit inter
praying for a
declaration that the contract between the Appellant Company and RPIL (who was defendant
no. 1 in the title suit), is valid. In the said suit,
the parties have compromised the matter. Thereafter,
Nicholas Primal India Pvt.
Ltd (“Respondent Company”)
to honour the terms and conditions of the compromise decree. Therefore, the Appellant
Company had filed a title execution case for execution of the compromise decree along with
application under Section 151 Civil Procedure Code, 1908 (“CPC”), asking for
setting aside/recalling of compromise decree on the ground that the compromise
decree was obtained by the Appellant Company through false inducement and
misrepresentation and the same is vitiated on account of fraud. Relying upon clause 17 of
the agreement, the Respondent Company filed an application under Section 8 of
The Arbitration and Conciliation Act, 1996 (“Act”), for referring the parties
to arbitration in money suit. The same was rejected by the Trial Court.

When the Respondent Company approached the High Court, the Hon’ble
Court allowed the petition and referred it to arbitration. Aggrieved by the
said order of the High Court, the Appellant Company challenged the same before
the Hon’ble Supreme Court of India.


The Hon’ble Supreme Court considered
the following Questions of Law and Facts:

  • Whether the High Court was right in referring the parties to the arbitration
    or not?
  • Whether the appellant is right in contending that the dispute
    raised in the Money Suit is not covered by the arbitration clause and cannot be
    referred to arbitration or not?


The learned counsel for the Appellant
Company contended that compromise decree was in full and final
settlement of the dispute between the parties. Hence, the same
is outside the scope of the arbitration clause. Placing
reliance upon Yogi Agarwal v. Inspiration Clothes & U and Ors.[2]
and Sukanya
Holdings (P) Ltd. v. Jayesh H. Pandya and Anr.
learned counsel for the Appellant Company submitted that
in order to refer the parties to arbitration, the dispute must fall within the
purview of which the parties have agreed to refer to arbitration.

On the other hand, learned
counsel for the Respondent Company submitted that the compromise deed was
obtained by the Appellant Company through false inducement and by practicing
fraud upon the Respondent Company. The Respondent Company would not have agreed
for a compromise deed, if the fraud perpetrated by the Appellant Company was
known to the Respondent Company.

It was further submitted by the
learned counsel for the Respondent Company that clause 17 of the agreement
dated 01.05.1997 covers all the disputes including “any dispute arising between
the parties”. Placing
reliance upon Swiss Timing v. Commonwealth Games[4], the learned counsel submitted that shutting out the
arbitration at the initial stage would destroy the very purpose for which the
parties had entered into the arbitration agreement.

It was further
submitted that when there is a clause for arbitration in the agreement, it is
mandatory for the Civil Court to refer the disputes to arbitration.


Hon’ble Supreme Court, placing
reliance on A. Ayyasamy v. A. Paramasivam and Ors[5] observed that while dealing with
Section 8 of the Act, if the court finds that there are very serious
allegations of fraud which make a virtual case of criminal offence or where
allegations of fraud are very complicated then it becomes absolutely essential
that such complex issues can be decided only by the Civil Court on the
appreciation of the evidence.

is no arbitration clause relating to the dispute between the parties in not
appointing the Appellant Company as a stockist
and the claim of compensation towards loss of goodwill and reputation. The High
Court erred in proceeding under the footing that the dispute falls within the
ambit of the agreement dated 01.05.1997 and that the Appellant Company -plaintiff admits the existence of the
arbitration clause and the impugned judgment is liable to be set aside.

a result, the impugned order of the Hon’ble High Court is set aside. The money suit
shall stand restored to the Trial Court and the Trial Court shall proceed with
the matter in accordance with law.


Having considered the facts and binding precedent, the
Hon’ble Supreme Court has rightly observed that complex questions of fraud and
where fraud is alleged against the arbitration provision itself or is of such a
nature that pervades the entire contract, meaning thereby in those cases where
fraud goes to the validity of the contract itself, such issues are complex in
nature and can be decided only by the Civil Court on appreciation of the
voluminous evidence that needs to be produced and tried before a Civil Court.

when there is no arbitration clause in the compromise
deed relating to the dispute between the parties, the matter can only be
adjudicated by the Civil Court, reference of the arbitration clause of the
earlier agreement cannot be made.

  • [1] Civil appeal no.   4430 /2009
  • [2] (2009) 1 SCC 372
  • [3] (2003) 5 SCC 531
  • [4] (2014) 6 SCC 677
  • [5] (2016) 10 SCC 386

Contributed By – Priyanka Ajjannavar
Designation – Associate

King Stubb & Kasiva,
Advocates & Attorneys

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