Parties either file writ petition or seek arbitration as if regular civil suit no longer exists: Bombay High Court

There are legal remedies beyond arbitration and writ petition, the Bombay High Court observed on Thursday urging parties to look beyond those two alternatives for resolving a dispute..The observations were made by a single-judge Bench of Justice GS Patel while dismissing a plea claiming the existence of an arbitration agreement.."We have too much become used to seeing only two alternatives in this Court - either a writ petition or an arbitration as if to suggest that the most basic form of litigation, a regular civil suit, no longer exists. It does," the Court said in its order..The order was passed in an arbitration petition filed by Dhargalkar Technoesis (I) Pvt Ltd (DTIPL), seeking reference of contractual disputes between itself and the Mumbai Metropolitan Regional Development Authority (MMRDA) for arbitration. While DTIPL claimed there is a valid and binding arbitration agreement, MMRDA denied the same..It was in response to Senior Advocate VP Sawant's argument on behalf of DTIPL that it would be left with no remedy if the application is rejected, that Justice Patel made the above remark..We have too much become used to seeing only two alternatives in this Court - either a writ petition or an arbitration as if to suggest that the most basic form of litigation, a regular civil suit, no longer exists.Justice GS Patel.Justice Patel also stated in his order that “courts will do their utmost to uphold an arbitration agreement and, where one exists, will not readily let it be dislodged. But the existence of a clear and unequivocal arbitration agreement is a pre-requisite.”.Though the agreement between the parties did not expressly have an arbitration clause, Sawant argued that the Supreme Court in Jagdish Chander v. Ramesh Chander & Ors. held that the absence of words like ‘arbitration’ and ‘arbitral tribunal’ or ‘arbitrator’ are not determinative. In that case, the Supreme Court held that the agreement must, however, have the following attributes of a valid arbitration agreement:(a) the agreement must be in writing; (b) The parties must have agreed to refer any present or future disputes to the decision of a private tribunal; (c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving the parties due opportunity to put forth their respective cases; (d) the parties should have agreed that the decision of the private tribunal in respect of the disputes will bind them..Based on the above, the High Court said that "there must be a demonstrated consensus ad idem to refer disputes to arbitration, and all four elements set out in Jagdish Chander must be shown to exist.".After perusing the clause on settlement of disputes, the Court came to the conclusion that it does not satisfy all the elements of a valid arbitration agreement as set out in Jagdish Chander..It, therefore, dismissed the petition. .[Read order]