Holding

Section 3 of the Foreign Awards Act obliges the court to stay proceedings when the arbitration agreement is valid and the dispute, including questions of scope, falls within its wide wording, and the three claims in this case are arbitrable.

Summary

The Supreme Court examined whether a suit filed by Renusagar Power Co. Ltd. seeking a declaration that three claims (unpaid regular interest, delinquent interest, and compensatory damages) were beyond the scope of an arbitration clause could be stayed under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961. The Court held that Section 3 must be given a liberal construction to further the Act’s purpose of speedy settlement of international trade disputes, and that the arbitration clause in the 1964 contract was worded broadly enough to include disputes "arising out of" or "in relation to" the contract, encompassing the three claims. Consequently, the conditions for a stay under Section 3 were satisfied, obligating the court to stay the suit and vacate the interim injunction. The appeals by Renusagar were dismissed.

Issues considered

Whether a suit that is essentially a petition under Section 33 of the Arbitration Act, 1940 can be stayed under Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961.
Whether the three claims (unpaid regular interest, delinquent interest, and compensatory damages) fall within the scope of the arbitration clause in the contract.
Whether the arbitrators can decide the question of their own jurisdiction and the scope of the arbitration agreement.

Legislation cited

Arbitration Act, 1940s. 33, s. 34
Foreign Awards (Recognition and Enforcement) Act, 1961s. 3, s. 7

Subjects

arbitrationforeign awards actstay of proceedingsarbitrabilitypromissory notescontract interpretationinterest claimscompensatory damagesjurisdictionNew York Convention

Judgment

432

A RENUSAGAR POWER COMPANY LTD.
v.
GENERAL ELECTRIC COMPANY AND ANR.

August 16, 1984
• [V. D. TULZAPURKAR AND R. S. PATHAK, JJ.]

Foreign Awards (Recognition and Enforcement) Act, 1961 Section 3,
scope of-Whether an earlier suit in the nature of a petition ur.der section 33
•f the Indian Arbitration Act, 1940 could be stayed on a petition under section
3 of the Foreign Awards Act, (a petition the nature of a petition under sectl9n
•
34 of the Indian Arbitration Act).

Interpretation of Statutes-Foreign Awards (Recognition and Enforce-
ment) Act, 1961-Interpretation of Act calculated and designed to subserve the
cause of facilitaring international trade and promotion and providing speedy
settlement of disputes arising in such trade-Any expression or phrase In the
D Act must receive an liberal construction consistent with its· liberal and gram-
matical sense.

Scope 1purview of the Arbitrr~l Clause in Article XVIII in the contract-
Jurisdiction of an Arbitratar to decide the Umits of his own jurisdlctian-
Whether a dispute inclusive of the arbitrators' jurisdiction comes within the
scope of purview of Arbitration Clause, primarily depends on t/1e terms of the
I Arbitration Clause.

Issuance of pramlssary notes further supported by Bank guarantee by the
buyer towards the purchase price under the contract itself and not by way of
separate contract, whether discharges the obligation to pay the purchase price-
Whether; the claims for the "Unpaid Reg1tlar 111terest, Delinquent Interest and
Compensatory Damages" be said to be" not arising out ..of the ~ontract" and,

' therefore, not referable to Arbitration.

Wards andphrase~-''Arising out of", in relation ta", "in consequence
of", "concerning", ''relatlng to", are expressions of widest amplitude and
content and include even questions as to existence, validity scope and effect of
Arbitration ay rc?ement.
G
Negatloble lnstruments-Nigotiable instruments taken on account oj
debt whether operates as absolute discharge or not is a question of intention of
parties-Bil/ or Promissory notes can never go in discharge of debt unl•s it
11 specified as a part of contract that It shall be so.

ff The first respondents Geoer~J 2l~tric Com,panr, a <_::ompan)' incor ..
RBNUSAGAR CO. v. GENERAL ELECTRIC CO •. 433

porated under the laws of the State of New York, USA, on a contract in A
writing dated August 24, 1964 agreed to sell, to the appeUant Renusagar
Power Company Ltd., equipment for a tberma1. electric generating p!ant
to be erected at Renukoot on the terms and conditions set out therein.
Work to be performed under the contract included supply of equipment
spare parts and services for which a sum of$ 13, 195,000 being the total
purchase price and otherwise called the ~·contract Base Price" was payable
by Renusagar in lawful currency of the USA in tho manner stipulated in
the contract. Under the contract, the parties intended completion of (a)
the delivery of the equipment and spare parts etc. within t S months of the
Contract Effective Date {December 31, 1964) i.e. upto March 30, 1966;
{b) the erection of the plant withia 16th to 30th moath (i.e. from April
l !, 1966 to June 30, 1967); so that (c) the plant \.ould be fully operatio-
} nal by the end of 30th month from the Contract Effective Date i.e. by July
1, 1977. . 0
The partie,, therefore, agreed. (a) that substantial payment of the
purchase price by Renus1gar should commence when the plant became
operational i.e. June 30, 1967; (b) that no interest would be payable
during: the delivery period; le) that interest sbatJ be paid during the erection
period and thereafter till payment but the interest during the erection
period would be capitalised and added on to the principal; (d) that initially
teit per cent of the tctal Contract Base Price ($ 1,319,500) should be
D
pilid either in cash or by mf:ans of a Letter of Credit within 30 days of
. the Contract Effective Date and that the balance of 90% of the purchase
price plus interest at 6!% per. annum from 16th to 30th month aggre ..
gating to US$ 11,116,058,15 <t 11,815,SOO for principal plus$ 900.SS8,
75 being the capitalised interest at the aforesaid rate for the aforesaid
period) should be paid in accordance with the schedule of payments set ou~ E
in the contract. The schedllle for tho payment of the said bala n:::e of 90 %
of the purchase price provided for payment to be made in sixteen six-
monthly instalments or U.S. $ 798,503.68 each, ihe first of such instaI ..
meats beiJ.g payable on 30. 6. 1967 and the last instalment falling due on
Jt.12,1974. The obligation to make such payment was to be evidenced
by four series (A-B·C-D) of 16 unconditional negotiable promissory notes
to be executed by Renu~agar (Vide Article J[[); (e) that in case ·or first F
respondent receiving an exemption from . the Government of India from
payment of income tax on interests received by it from Renusagar then the
interest for that portion of the Period shall be computed at 6% instead or
61% per annum and that the concerned promissory notes would be replaced
or substituted by fresh one reflecting the adjustment in payment of .interest
necess~tated by the grant of tax exemption; (f) that should CjEC's application
for exemption be denied the appellants may withhold the Indian Jacome Tax
applicable to any payments of interest but shall furnish the first respon- G
dents witn tax receipts of all withheld amounts paiP to the Government of
India so as to enable first respondents to obtain corresponding credit for
the sum in their US tax assessment (Vide Article XlV-B); (g) that the
appellants shall furnish guarantee of the United Commercial Bank for
payment of tho full amount of promissory notes; (h) thlt the rights and
obligation of the parties would be governed in all respects by the laws of
the State of New York, U.S. A. (Vide Article XIX-A) and that (j) "Any
disagreement a•ising out of or related to this contraCt which the parties
are uaabJe tQ resolve by sincere negotiation shall be finally settled in H
434 SUPREMB COURT REPORTS [1985} ! S.C. R.

A accordance \Vith the Arbitration Rules of the foternatio11al Chamber of
Commerce. As provided in"" the said Rules, ench party shall appoint one
Arbitrator, and the Court of Arbitration of the International Chamber of
Commerce shall appoint the third Arbitrator. Arbitration proceedings
shall be conducted at such time 'and place as the Court of Arbitration shall
decide. Judgment upon an award may be entered in any court of competent
jurisdiction." (Vide Arbitration Clause in Article XVII).
B
Pursuant to the said Contract the appellants fulfilled all preliminary
conditions of the contract, including the furnishing of a guarantee executed
by the UCO Bank irre".ocably guaranteeing to the first respondents and to
any subsequent holdef in due course of the notes the full and prompt
payment of the principal and interest on the notes. Subsequently on an
agreement recorded in the first respondents Jetter dated June 11, 1965 and
as approved by the Central Government, the 1964 Contract (IGE-9~84)
was extended to include the supply of unfabricated structural steel to
Renusagar ror approximately U.S. $ 300,COO on the same conditions
including the Arbitration Clause as contained in the original 1964 (JGE-
9584) Contract, except that the appellanls agreed and issued a fifth series,
(E series) of sixteen promissory notes bearing interest at 6-i %
per annum
D evidencing 90 % of the price of the structural steel; and the payments dates
thereof being the same dates as the corresponding promissory notes of the
earlier four series.

During the implementation of the contract two events occurred giving
rise to the GEC's·three claims against the appellants that are sought to be
referred to arbitration of International Chamber of Comn1ercc, namely, (i)
E
grant of exemption by the Government of India to G. E. C .. in respect of
interests on purchase pr~ce receivable by it from the appellants 3nd the
revocation thereof, leading the appellants to file a civil writ petition No,
179 of 1970 in the Delhi High Court and getting the revocation orders
quashed and (ii) re-scheduling dates of payment of purchase price agreed
..
to by the parties but not approved by the Reserve Bank of India and the
r Government of India.

The three claims of G. B. C. were (i) the Unpaid Regular interest to
the tune of 2.1 million dollars (U.S.) wrongly deducted and wrongly with.
held and kept with themselves by the appellants from 1970 onwards denying
G. E. C. of thec..benefit of getting the corresponding credit in their U.S. taK
asse!sment from 1970 onwards. The amount represented the difference
between U. S. $ 24,12,680.20 (73 % of the intr.rest payable calulated on the
0 basis of 6!% subject to tax) and U.S.$ 21,30,785. 52 (calculated on 6%
tax free basis); (ii) Liability for Delinquent Interest on account of the delays in
payment of four instalments of purchase price together with interest, due
1
to the failure to have re-scheduling of payments approved by Reserve
Bank and Government of India; to the tune of U. S. S 7,84,lSl. 84
(calculated on the basis of 6% tax free basis); and (iii) The Compensatory
Damages arising out of non-payment of the aforesaid two claims of Unpaid
Regular Interest and Delinquent Interest for over twelve years, the quantum
·H being calculated by way of interest on those amounts at tbe markot rata of

.. - -··
RBNUSAGA!l CO. v. GBNBRAt EtHCTRIC CO. 435

18% per annum amounting to U.S. $ 41,610,534.88 upto 31.3.1982 A
(to bo extendi!d till the date of actual payment). According to G.E.C. the
app~llants for a long period of 12 years had~illegally and wrongfully retained
on one pretext or the other these two fund:i with itself and had enjoyed the
use thereof for its o·Nn private advantage and had correspondingly totally
deprived G.E.C. of their use fJr which the appellants must compensate by
way of dalnages in as much as they must be regarded as a stake holder or
constructive trustee of those funds from the various dates on which tho B
payments became due and payable and under the common law jurisdictioo
restitution was payable by a stake holder to the party ultimately determined
to be a rightful beneficiary owner of the funds.

• By a notice of intention to arbitrate dated March 1, 1982 G.E.C•
! called upon the appellants to remit the aforesaid sums and also addressed c
a letter dated March 2, 1982. to the Secretariat Court of Arbitration of
ICC containing a request for arbitration being undertaken by it seeking
reliefs as set out in the notice to the appellants. After ICC took cogaiz..
aace of the request for arbitration by G,E.C. it called upon the appellants
to nominate its Arbitrator, file its reply and remit certain sums towards
the administrative expenses and arbitration fees.
D
Thereupon, the appellants on June 11, 1982 filed suit No. 832/82
io the Bombay High Court on its original side against G.E.C. and ICC
seeking a declaration that the cla.ims referred to the arbitration of ICC by
G.E.C. were beyond the scope/purview of the arbitration agreement
contained in Article XVIC of contract IGE-9584 d,1ted August 24,
1964 and that G.E.C. was not entitled to refer the same to the arbitration
with consequential prayers for injunctions restraining G.E.C. and ICC from
E
proceeding further with thl.l reference and restrainiug I.C.C. from requiring
the appellants to n1ake ~ny deposit towards administrative expenses and
Arbitration fees and obtained an ex;-parte ad-interhn relief. On August
11, 1982 G.E.C. filed Arbitration Potitioo No. 96 of 1982 under section
3 of the Foreign Awards (Recognition and Enforcement) Act, 1961 seeking
stay of suit No. 83.l of 1982 aud all proceedings tberGill with a prayer for
F
vac.:ating the ad-interim ex-parte reliefs obtained by the appellants ia the
said Suit.

Both the matters, G.E.C.'s stay petition under section 3 and the
appdlauts' Notice of Motion for confirmatiou of ad-inlerim reliefs were
beared together and by a common judgment and o:der dated April 19,20,
1983 the learned Single Judge allowed the Arbitration Petition 96 of G
1982, granted the stay of Suit No. 832 of 1982 and all the proceedings
therein since all the ·ingred1ents of section 3 of the Foreign Awards (Recog~
nilion and Enforcement) Act, 1961 had been satisfied and vacated alJ the
interjm reliefs granted earlier, The learned Judge he!J : (a) that the
Arbitration Clause in the original 1964 Contract could be aVa.iled of by G.B.C.
in as much as not only bad theOctob.ir 1908 Amendtn~at kept alive all otber
terms and conditions of the 1964 Colltract including Arbllratio.i CLi.u.;e
but it had fJ.ll.::a through .for lack of Government's approval; (b) thJJ~ll
H
436 SUPREME coiiRt REPORTS [1985] 1 s.c.il.

A the first two claims sought to be referred to arbitration by G.E.C. were
based on the promissory notes towards the purchase price was provided
under the Contract itself and these were not by way of any independent
or separate Contracts in discharge of the obligation to pay the purchase
price under the contract and since the Arbitration Clause covered all the
disputes arising out of the contract those claims fall within the Arbitration
Clause and; (c) that the liability to pay the compensatory damages arose
B out of failure to carry out the terms and conditions of the contract in regard
to payment of purchase price and that even assuming that the said claim
was one in tort it was directly and inextricably connected with the terms
and conditions of the contract and certainly uarose out ofu the contract
of was ''in relation to" the contract aod therefore, could be entertained by
the Arbitrators.

c Renusagar preferred two appeals being civil Appeal Nos. 404·405 of
1983 and contend~d : (a) An Arbitrator bad no jurisdiction to decide the
"
limits of his own jurisdiction and since in the case of International Arbitra·
tion the jurisdiction of the Arbitrator bad to be decided according to the
Law of the Forum where the question is raised (in the instant case being
the Indian Law) the jurisdiction of the Arbitrator, "lCCorJiog to that Law 1
had to be decided by the GJurt and not by th' Arbitra\ Tribunal; (b) the
D dispute sought to be referred related substal)tially to the claim for intere'it
and that claim was (and it was so stdted in the notice of intention
to arbitrate) founded on the promissory notes wh~cb W.!r...: independl!nt
contracts by themselves and tllercfi.Jro, the c!aim did not arise out of the
suit contract and henc~ could not be the sulij~ct m1tter of Arbitration;
(c) that claim for compensatory intere:it w.1s really a· claim for damages
arising out of tort aod such a claim was in. any case not case by the
E suit contract and fell outsid~ the scop;i of th~ Arbitr.itioa Clau>e; and (d) in
any event Renusagar h1d m 1di:: out a prirn<1. fa.:ie ag:1.iast by ra1s1ng
serious 1riable issues in the suit which should enable it to claim an injunc-
tion restraining the arbitration proceedings.

The Court of appeal negatived all the contentions and ultimately
F confirmed the trial Judge's order whereby Renusagar's suit was stayed and
the interim reliefs granted to it were vacated and hence the appeal by
certificate by Renusagar.

Arguments for the appellants : -

G (1) The Arbitration Petition under section 3 (which is really in the
nature of a Petition under section 34 of the Indian Arbitration Act, 1940,
is totally misconceived and liable to be dismissed because the Suit No.
832/ 1982 filed by the appellants is merely for a declaration that the tbree
claims sought to be referred to arbitration are b~yond the scope/purivew I
of arbitration clause and no other relief on the merits of those claims is
sought, and the Suit, being really in the nature of a petition under section
33 of the Indian Arbitration. Act, 1940, in as much as it seeks to have
the effect ~scope) of tbe arbitration Pgreement determined, can never by
H stayed under section 3 of the Foreign Awards Act,
RENUSAGAR co. v. GENERAL ELECTRIC CO. 437

(2) Th~ suit filed by the appellants is not "in respect of any matter A
agreed to be referred to arbitration" as required by section 3, and therefore,
the stay sought for by G.E.C. should be refused;

(3) The Court acting under section 3 (like the Court acting under
section 33 of the Indian Arbitration Act) being a court of limited Jurisdic·
tion cannot determine the question of the existence, validity or effect of B
the arbitration agreement (which is the only issue to be tried in the appe~
llants' suit) and it is for the court trying the suit to decide the question
raised in the suit, and therefore, a stay, if granted under section 3 appli·
cation would finally determine the suit or render it almost dead for all
practical purposes and thercforeJ no relief on the said petition can be
granted which will have such effect;
~ c
(4) The question raised in the suit relating to the effect (scope of
the Arbitration Agreement, which is the same as the question relating to
the existence thereof, is such as is incapable of being finally determined
by the Arbitrators and hence such a suit cannot be stayed under section 3
of the Foreign Awards Act;

D
(5) The underlying commercial contract (IGE-9584) for sale of goods
and services contains no obligation to pay any interest after Juno 30, 1967
(i.e. after the 30th month from the contrac1 effective date) (whether six and
a half per cent or six per cent) but that such obligation to pay interest after
June 30, 1967 is only to be found in the promissory notes and the two claims
of G.E.C., namely, first claim of 2.1 million D.S. dollars a·nd the second
claim for U.S. $ 78, 1S1.24 towards approximately 80% for Unpaid
Regular Interest and Delinquent Interest respectively, being dues after
JiJ
June 30, 1967, preferred before the arbitrators do not ~'arise out ofl~ the
contract nor are they er in relation to" ·thereto but arise under the
promissory notes and hence fall outside the scope ofarbitration agreement ;

(6) The promissory notes executed by the appellants were in complete
di~charge of the obligation to pay- purchase price and interest thereon under p
the contract and these notes constitute independent and separate contracts
by themselves, and therefore, lhe liability arising out thereunder cannot
.be regarded as "any arising of the contract" or "in relation thereto'' and
what is more these claims have been described by the G.B.C. in their notice
of intention to arbitrate as "ari11ing under the promissOry notes"';

(7) The claim for compensatory damages being a liability arising in G
tort, for wrongful detention of the first two funds and si11ce it was being
enforced on the basis of appellants' status as a stake holder or constructive
trustee the same is clearly outside the scope of the arbitration agreement;
and

(8) Since the issue of arbitrability of these claims is raised in the
appellants' suit it is but proper that till the issue raised in the suit is
finally decided by the Court, tbe arbitration proceedings should be
iniuncted. H
438 SUPREME COURT REPORTS (1985] I S.C.R

A Arguments for respondent company :

(1) The schemes of the Foreign Awards Act and the Indian Arbitra·
tion Act, 1940 being not identical, there are various n1aterial differences
which have a bearing on the issue whether a suit seeking determination of
of the effect (scope) of an arbitration agreement c::in or cannot be stayed

.. B in a petition under section 3 of the Fofeign Awards Act and that answer
to it depends upon proper construction to be placed on that section in the
light of the scheme of that Act;

(.2) Since all the ingredients of section 3 have been satisfied the stay
of Renusagar's suit will be obligatory;
c
(3) Alternatively, the legal position is that both under English Law
and Indian Law, it is open to the parties to have an arbitration agreement
incorporating words of the widest amplitute so as to embrace even the ques-
tions of its existence, validity or effect (scope) but an enquiry into lhe
scoDe and effect of an arbitration agreement and a challenge to the existence
or validity thereof are not the same but fundamentally different in as much
D as the first pre-supposes that the arbitration agreement exists in fact and
H
in law and the enquiry then is limited to the scop" and effect thereof;

(4) Whenever it is said that an arbitrator cannot decide the question
of his own jurisdiction all that is intended is that he canno: determine.....:.....
that too .finally, the question of the existence (factual) or validity (i.e.
E legal existence) of the arbitration agreemi;ont, if contained in the underlying
commercial contract and this must be so, for, if the existence or validit7
of the underlying commercial contract is successfully challanged the arbi·
tration clause which is the pa1t and parcel thereof must perish with ft and
·therefore, the Arbitrator will have no jurisdic·ion to decide tfie issue of the
existence or validity of the agreement but even here if the arbitration
agreement so widely worded if separate and independent from the commer-
F cial contract the arbitrator will have jurisdiction to decide the questions
about existence or validi•y of the commercial contract; but these principles
have no application whatsoever to a case where the issue relates to the
scope and effect of the arbitration agreement contained in the underlying
commercial contract and the arbitration agreement is wide enough to include
such an issue, for, in such a case the Arbitrator will have Jarisdiction to
decide that issue. Therefore, since in the instant case the Arbitration
G Clause co-ntained in the underlying commercial contract IGE~9584 is of I
the widest amplitude it is the Court of Arbitration of I.C.C. which will
have jurisdiction to adjudicate not merely three claims of G.E.C. on merits
but also the issue whether those claims fall within the Arbitration· Clause
or not;
I
(5) The issue pertaining to the scope and effect of the arbitration
agreement,- if raised in an application under· section 34 of the Indian
H Arbitration Act, the Court has to decide it <1nd the Courts' decision thereof
RENUSAGAR CO, v. GENERAL ELECTRIC CO. 439

will naturally be binding on the Arbitrators even though the issue was A
within the competence of the Arbitrators because of the wide wording of
the Arbitration Clause. Here, sir ce the Court has decided the issue whether
the three claims "arise out of" or are ·crelated to" the contract affirmati-
vely it will be binding on the Court of ..\rbitration of I.CC. and it will be
futile for that court of Arbitrati0n to go into that question again;

(6) The commercial contract (IGE-9584) does contain an obligation B
on the part of Renusagar to pay interest on unpaid purchase price after June
30, 1967 (and not merely in the promissory notes), ·which could be readily
inferred from Art. III (a) 3(c) read with Article XIV-B and therefore the
first two clairrs for Urip<iid Regular Iaterest and Delinquent Interest
due after June 30, 1967 preferred before the Arbitrators not merely "arise
) out or• but really arise "under' the contact;
c
(7) The third claim for Compensatory Damages which flows by way
of corollary from wrongful detention of the first tv..o funds which ought to
have been paid under the Contract is so closely connected with the contract
that it is clearly "in relation to it";

(8) The promissory notes executed by Renusagar were· not and are D
not in discharge of the obligation to pay the price and interest thereon
under the contract; nor do these notes constitute independents and separate
contract by themselves, These arc a part of the contract and the two are
so ioseverab\y and inextricably bound together that the obligation under the
contract can never be deemed nor intended to h1ve b~en completely disr
charged by the mere execution of the no e;. The real nature of the claims
preferred beforo \.he arbitrators and not the nomenclature or deicriptioa E
thereof by any party would be relevant and decisive· AlternatiYely, even
assuming (a) that the promissory notes are not an inseverablc anJ e~extri
cable part of the Contract, (b) that the obligation arising under the Notes
is totally different from the one arising under the contract and (c) that the
Notes .ere in discharge of the oblig.ition to make payment under the Contract
(all of which are strongly denied), the threF: claims would still be covered by
the Arbitration Clause which is of the widest ampiitude, for it would be
F
erroneous to determine whether a claim arises out of or in relation to th 0

Contract by looking at the cause of action on which the claim is based.

(9) The Court of Appeal was justified in coming to the conclusion
that no prima facz'e case for injunction restraining arbitration proceedings
bad been made out by Renusagar and it bad, therefore, rightly vacated the G
ad-interim injunction and stayed Renusagar's suit.

Dismissing the appeals, the Court,

HELD : 1.1 Tbe question, whether under section 3 of the Foreign
Award (Recognition and Enforement) Act, 1961 having regard to its scopeJ
a suit in the nature of a petition under section 33 of the Arbitration Act,
1940 could be stayed must necessarily depend upon a correct construction H
440 StiPkEMB COURT REPOkts [1985] 1 s.C.R.

A of the said section 3, by keeping in mind the objective sought to be achieved
by that Act and its scheme and not on the basis of similar or analogous
provisions that a.re to be found in the Arbitration Act, 1940 or the manner
in which such similar or analogous provisions have been construed by
Indian Courts. [49 IF-G; 492A-B]

1.2 The Statement of Objects and reasons shows that the Foreign
B Awards (Recognition and Enforcement) Act, 196 t seeks teo achieve speedy
settlement cf disputes arising from international trade through arbitration.
The Act, a successor to the Arbitration (Protocol and Convention) Act,
1937 was enacted to give effect to the New York International Coovenl-ion
on the Recognition and Enforcement of Arbitral Awards adopted o·n 10th
June, 1958 and to which India is a party. Section 2 of the Act defines
the expression "Foreign Awards", and closely follows the language of
c l
Article II of the convention which provides for recognition by contracting
States of agreements, including !lrbitral clauses in writing by which the
parties to the agreement ~ndertake to submit to arbitration all or any
difference which have arisen or which may arise between them in respect
of defined legal relationship, whether contractual or not, concerning a
subject matter capable of settlement by arbitration. [4928; D;G]
D
1.3 Since the Act is calculated and designed to subserve the cause
of facilitatiog intetnational trade and promotion thereof by providing for
speedy settlement of disputes arising in such trade through arbitration,
any exprl!Ssion or phra')e occurring therein should, therefore, receive •
consistent with its literal and grarnmaticJ\ sense, a liberal construction.· An
examination of the relevant provisions of the Foreign Awards Act and the
E Arbitration Act of 1940 show that the schemes of the two ~.. cts are not
identical and there are various differences which have a malerial bearing
on the question under consideration and as such decisions on similar or
analogous provisions contained in the Arbitration Act cannot help in deciding
the issu~ arising under the Foreign Awards Act because just as the Arbitra-
tion Act, 1940 iS a consolidating enactment governing all domestic awards
the Foreign Awards Act constitutes a complete code by itself providing
F for all possible contingencies in relation to Foreign Awards made pursuant
to agreements to which Article II of the Convention Applies. [492G; 493A-BJ

1.4 On a plain reading of Section 3 of the Foreign Awards Act two
things become very clear, namely, (i) the section opens with a· non obstante
clause giving over riding effect to the provisions contained therein and
making it prevail over anything to the contrary contained in the Arbitra-
G tion Act, 1940 or the Code of Civil Procedure, 1908; and (ii) unlike
section 34 of the Arbitration Act which confers a discretion upon the Court,
the section uses the mandatory expression "shall" and imakes it obligatory
upon the Court to pass the order staying tha legal proceedings commenced
by a"party to the agreement if the conditions specified therein are fulfilled.
[494A·B]

The conditions required to be fulfilled for invoking section 3 of the
11 Foreign Awards act are :
kENtisAGAR co. '· GENERAL ELECtRJC to. 441

(1) there must be an agreement to which Article II of the Conven- A
tion set forth in the Schedule applieS. (It is not disputed that this is so
in the instant case); [494C]

(2) a party to that agreement must commence legal proceedings
against another party thereto; (it is again not disputed that Renusagar and
G.E.C. are the two parties to the arbitration agreement an that Renusagar
bas commenced legal proc,edings against G E.C. by filing· Suit No. 832
B
of 1982); [494D]

(3) the legal proceedings must be uin respect of any. matter agreed
to be referred to arbitration" ''in such agreement; (tho question whether
this condition is fulfilled here needs to be decided), [494E]
c
(4) the application for stay must be made before filing the written
statement or taking any other step in the legal proceedings; (admittedly
this condition is fulfilled); [494F]

(5) The Court bas to be satisfied that the agreement is valid, ope-
rative and capable of being performed; this relates to the satisfaction about D
rexistence and validity, of 1be arbitration agreement; (in the instant case
these questinns do not ariso); and [494G]

(6) the Court bas to be satisfied that there are disputes between
the parties wilh regard to the matters agreed to be referred; this relates to
effect (scope) of the arbitration agreement touching the issue of the arbi~
trability of the clain1s (it will have to be dealt with while considering E
the satisfaction of condition (3), [494H]

(In the instant case, the parties were thus at issue as to the fulfil·
ment of conditions (3) and (6) only and it is on the fulfilment of these that
the obligation of the court to stay the suit.of Renusagar will arise.) [495A]

1.5 The scheme 1Jf the two Acts (Foreign Awards Act and Arbitra-
tion Act) materially differ on several aspects having a bearing on the points
at issue I as seen by an examination of section 3, 4, 7, of the Foreign
Awards Act, in juxta-position with sections 32. 33 and 34 of the Arbitra-
tion Act. Under section 32 of the Arbitration Act suits no challenge the
existence or validity of an arbitration agreement or award as also suits to
have the effect (scope) of an arbitration agreement determined are barred G
and such questions can be raised only by an application under section 33
of the Act whereas under the Foreign Awards Act there is no provision
similar or akin to sections 32 and 33 (and that iS why a suit of the nature
filed by Reousagarqua the arbitration agreement covered by the Convention
is maintainable) but by virtue of sections 3 and 7 the same purpose is
served though by different procedure. Sections 3 and 7 read together
disclose a scheme that so far as questions of existence, validity and effect
(scope) of the arbitratioll agreement are concerned, the determination thereof
. by the arbitrators is also subject to the decision of the Court and this H
I

442 SUPl\EME COURT REPORTS ' [1985] 1 s.c.n.

A decision of the court can be had either before the arbitration proceedings
commence or during their pend ency, if the matter is decided by the Court
in a section 3 petition, as in the present case, or can be had u11der section 7
after the award is filed in the court and is S(}Ught to be enforced under
section 6. Tru~ section 4(2) declares that a foreign award shall be filled
treated as binding 'for all purposes' on persons as between when it is made
but that is subject to section 7 whereunder enforcea.bility thereof is made
B dependent up:Jn s.itisfacdon of ccrlain conditions specified therein; for
exa1nple, under section 7( I) (a) (iii) one of such conditions for enforcibility
is that the awJ.rd should not deal with questions not referred nor should
it contain decisions on matters beyo!ld the scope of the agreement. In
effect, section 3 of the Foreign Awards Act so to say combines in its own
ambit both S'::lctions 33 and 34 of the Arbitration Act; in other words,
questions regarding the existence, validity or effect (scope) of the arbitration
c agreement which can be decided under section 3 3 of the Arbitration Act are
required to be decided under section 3 of ti.le Foreign Awards Act
before a stay of legal proceedings contemplated therein could be
granted and the right to have legal proceedings stayed contained in section
34 of the Arbitration Act is also to bo found in the same section 3. Further
the Foreign Awards Act has also taken cognizance of the possibility that
there may not be a Section 3 petition at all the matter being directly
D proceeded before the arbitrators and the possibility of the arbitrators
giving a decision on an issue not within their competence or jurisdiction and
in such cases sectio1 7 cvntains a safeguard which prevents any such award
from being niadc enforceable. Su::b being the. scheme uader the Foreign
Awards Act the decisions of the Indian Courts oa similar or analogous pro..
visions contained in the Arbitration A::t would not be of any help to decide
••
questions arising under the Foreign Awards Act. [495B·H; 496A·C]
E
Balabux Agarwa/la v. Shree Luchminarain A1anufacturing Co. ILR 1948
Calcutta page 265; Gaya Electric Supply Co. v. State of Biha,, [t953] SCR
572 at 579-580 held in applic<ble.

1.6 Conditions (3) and (6) which are inter related and in substance
bear upon the same aspects ard also satisfied since, firstly. the language of
the Arbitration Clause is wide enough to embrace the issue of arbitra-
F bility of the claims and secondly, the phrase in section 3 of the Foreign
Awards Act, namely, "in respect of any matt~r agreed to be referred to
the arbitration"· cannot be given a narrow construction, becaus(:: (a) there is
nothing in the section warranting the same. What matters are agreed to
be referred to arbitration will depend upon what language is employed
by the parties to the arbitration agreement and there is nothing in law or
equity which prevents the parties from referring even the questions of
existence, validity or eff~ct (scope) of the arbitration agreement itself to the
arbitrators On fact; Lord Porters' obstirvations in Heymen v. Darwins Ltd.
and Da~ J's view in Balabux Aggarwala's case show that the parties can do
it), and (b) the scheme of sections 3 and 7 of the Poreign Awards ActJ
clearly suggests that the relevent phrase would include even qu~stio11s of
existence, validity and effect (scope) of the arbitration agreement.
[496H; 497A·F]
Shiva Jute Bailing Ltd. v. Hindley Co, [1960] I SCR 509, Khardah
H Company Ltd. v. Raymon and Co. Undla) Prl•••• Ltd., [1963) 3 SCR 183
RENUSAGAR CO. v. GENERAL ELECTRIC CO, 443

Waverly Jute Mills Co. v. Raymon and Co., [1963] 3 SCR 209; M(<. R.N. A
Ganekar and Co. v. Hindustan Wire> Ltd. AIR 1974 SC 203=[1974] I SCC
309 at 313-314 distinguished and held in applicable.

2.1 Apart from the fact that the relevant rules of I.C.C. (parti-
cularly Rules 8 3 and 8.4) in terms confer jurisdiction upon the Arbitrators
to decide questions as to the existence or validity of the Arbitration agree·
B
ment contained in the commercial contract, in the inStant case, since the
parties to the underlying commercial contract have used the expressions
"arising out of" or "related to this contract" in the Arbitration Clau~e
XVII contained in•the contract, the parties clearly intended to refer the
issue pertaining to the effect (scope-) of the Arbitration Agreement to the
Court of Arbitration of International Chamber of Commerce, in other words
the issue about the arbitrability of the three clain1s under reference has been
referred. [465E-F; 471G·H; 472A]
c

2.2 Four propositions emerge very clearly from lhe authorities
· decided by the Indian Courts; [470F]

(a) Whether a given dispute inclusive of the arbitrator's jurisdiction
D
comes within the scope or purview of an arbitration clause or not primarily
depends upon the terms of the alause iiself; it is a question- of wbat the
pa~ties intend to provide and what 1·anguage they employ; (4700-H]

(b) Expressions such as "arising out of" or "in respect of" or
"in connection with" or "in relation to" or ''inconsequence of" or "con-
cerning" or "relating to" the contract are of the w:dest amplitude and E
content aud include even questions as to the existence, validity and effecc
(scope) of tbe arbitration agreement; [471A-B]

- (c) Ordinarily as a rule a11 arbitrator cannot clothe himself with
power to decide the qu~s~iotis of his own jurisdiction (and it will be for
the Court to decide tho:3e questions) but there is nothing to prevent the
parties from itivesting him with power to decide those questions, as for F
instance, by a collateral or separate agreement which will be effective and
operative; [17lC]

(d) If, however, the arbitration clause, so widely worded as to G
include within its scop~ questions of- its existence, validity and effect
(scope}, is contained iO the underlying commercial contract then decided
cases have made a distinction between questions as to the existence and or
validity of the agreement on the one hand and its effect (scope) on the
other and have held that in the case of former those questions cannot be
decided by the arbitrator. as by sheer logic the arbitration clause must
fall along with underlying commercial contract which is either non-existent
or illegal while in the case of the latter it will ordinarily be for the arbi-
trator to decide the effect or scope of the arbitration agreement, i.e. to
decide the issue of ar~ilrabilily of tb~ c; 1 ;i~Pl preferred before him. [471D·F]
ff
444 SUPREME COURT REPORTS [19'85] 1 s.c.R·

A Government of Gibralter v. Kenney and Anr. [1956) 3 All E. R. 22;
Heyman v. Darwlns Ltd, [1942) AC 356; Wil/e.iford v. Watson, [.1873) L.R.
8 Cb. Appeals 473 quoted with approval.

Dhanrajmal Gobindram v. Shamji Ka/idas and ::a., [1961) 3 SCR 1020;
Khardah Company Ltd. v. Raymon and Co. (India) Private Limited, [1963) l SCR
183; Jawahar Lal Burman v. Union of India, [1962) 3 SCR 769; Waverly Jute
B Mills Co. v. Raymon and Co. [1963) 3 SCR 209; Balabux Agarwal/av. Sree
Luchminarain Manufacturing Co., !LR [1948) I Cal. 265 referred to.

2.3 All the three claims referred by G.E.C. to the Court of Arbitra-
tion of J.C.C. do "arise out of" and are "related to" the commercial con·
tract On fact the firft two claims arise ''under the contract") and squarely fall
within (be widely worJed arbitration clause being Art. XVII contained in
c the commercial contract. The third clairn for compensa:ory damaaes is
directly, closely and inextricably connected with the terms and conditions of
the contract the payments to be made thereunder and the breaches thereof
and since for adjudication thercor recourse to the contract would be neces-
sary it is a claim er arising out of" and in any event "related to. the contractu.
The Arbitration Clause embraces even the question of its effect (scope) that
is to say it embraces the issue or the arbitrability of the three issues.
D [488D-E, 489A-B)

2.4 The contract does contain thl':l obligation to pay future interests
on the unpaid purchase price from June 30, .1967 oow.irds till payment and
the two claims of GEC for Unpaid Regular Interest and Delinquent Interest
.
have been correctly preferred before the Court of Arbitration of ICC as
arising not merely "out of" but "under the contract''. [4780-B]
E
A combined reading of the provisions in sub.clause a, b, c, of clause
3 of Article-Ill and XIV·B of the contract (IGE-9584) clearly sho'¥S that the
promissory notes are not the sole and exclusive repository of GEC's right 10
claim aed receive further interest on unpaid price after June 30J 1967 but
that the contract itself provides for the obligation to pay such interest after
that date till payment. [476C·D, E·G) ,
-
F
Admittedly, interest on the purch1se price at the agreed rate upto
June 30, 1967 was capitalised and included in the principal amount of each
of the instalments represented by the concerned promissory note as mentioned
in the schedule of payment<> given in Arti~le IIC-AJ 3(b) of the Contract.
The f0rm of the promi,,sory note attached as Exhibit 'B' to the contract as
G also the promissory notes that were actuaily exccp.ted clearly contain a
recital that Renusagar ''rromises to pay to GBC interest thereon (i.e. on the
capitalised principal) from June 30, 1967 semi-annually at the rate of 6f% per
annum on the last date of June & December in e1cb yi;:ar until paid. The rectial
in each of the Promissory Note bas to be in terms of the provision in Article
Ill-A 3 (c) of the commercial contract itself. Further Article XIV-8 clearly
shows that the parties to the contract were contemplating to obtain from
the Government of India Income Tax exemption on the interest income
which GEC was going to receive from Renuo;agar under the contract and the
ff provision is that tbe 'rinterest incorne" oQ which tat; exemption was being
RENUSAGAR CO. V. GBNERAL ELECTRIC CO. 445

sought, is said to include capitalised interest and interest thereon that is to A
say interest on the amounts of the promissory notCs (which included
capitalised interest), \\hich obviously means further ihterest on outstanding
principal balance under the notes from June 30, 1967 till payment.
[475F-H, 476A, 477A-F)
2.S The contention that if Rcnusagar had failed to execute promissory
notes as required under the contract, GEC would not have become entitled B
to receive or claim interest after June 30, 1967 but would have ,had only a
right to calI upon Renusagar to execute such pro-notes and to claim damages
for failure to fulfil contractual obligations cannot be accepted. The question
is not ·~hat rights GEC would have had on Renus~gar's failure to execute
that promissory notes as required but the question is wh ~t the contract
provides for. Sub-clauc;c (c) of clause 3 of Ari icle IH-A provides for not
merely the execution of promissory notes but that the promissory notes
c
would also bear interest after June 30, 1961. Further the very fact that
the failure of Renusagar to execute promissory notes of course as required-
by the contract would have conferred a right of GEC to call upon Renusagar
to execute such notes also shows that the obligation to pay interest after
June 30, 1967 ti\\ payment has been provided for by the contract. [476D-H)
D
Commissloner of Income T."X v. M/s. Ogale Gla.~s Work~ Ltd, AIR
(1954) SC 429=[1955] 1 SCR 185; H.P. Gupta v. Hfra Lal, [1970] 3 SCR
788; Bihari-Diwan Singh v. Jaffe & Son~, AIR 1922 Lahore 353; Dhiraj Lal
v. Sir Jacob Behrens & Sons, AIR 1933 Allahab.'.ld 74; M/s. Va.1vani Na1ji v.
KPC Spinners, AIR 1983 Madras 31; Ghewarchandv. Shi>Ja Jute Baillng Ltd.,
AIR 1950 Calcutta 568; NOVA <Jer.iey) Knit Ltd., v. Spinnerei, [1977] 2 All
England Report 463; Monrov. Bognor Urban District Council, (1914·15]
Reprint All England Report 523 referred to .
E
• 2.6 Neither the fact that the bank guarantee endorsed on each pro·
missory note is restricted only to the paymeat of principal and interest oa
the note as per its terms and does not extend to or cover any residuary
payment obligation contained in the contract, debors the promissory note
nor the fact that GBC has filed a Suit No. 786 of 1982 against UCO Bank
in the Calcutta High Court to recover the million dollars for the interest a~
being due under the promissory notes read with guarantee, lead to an F
inference that the cause of action arose only out of pro-notes. Since the
Bank guarantee is in connection with and endorsed on the promissory
notes it would ordinarily refer to the obligation arising there under
and not to any obligation arising under any other document and the
question whether the contract contai11s such obligation to pay future interest
must depend upon its contents and not up:>n what is not to be foaad in the
bank guarantee. Again the suit agqinst the UCO" Bank is necessarily to be G
on the pro-notes read with the guarantee, the contract not b~ing a document
to which UCO Bank is a party. [477F-H, 47oA-B]

Similarly, it is the substance of GBC's pleading (notice of intention t?
arbitrate) that matters and not the description of the claims. Though at one
place in the Notice of Inten.tion to arbitrate the two claims are On fact only
the first claim of 2.1 million U.S. dollars is) said to be "on the promissory
n~te.~", )'et at tQe corn~encement of that notice the subject matter thereof i& H
446 SUPREME COURT REPORTS [1985] I S.CR.

A aptly stated as "Reg: Interest under the contract No. IGE-9584 between
GEC and Renusagar" and the substance of the entire pleading shows how
the first two claims have arisen under the cantract and how under the terms
thereof and in the correspondence their amounts got adjusted and quantified
at certain figures and that reference to tho contract is not by way of any
antecedent or historical fact. Viewed from any angle the 1.wo .::!aims cannot
be said to arise under the Promis.;ory Notes. [478B-E]
B
2~7 Whether a negotiable instrumenc taken on account of debt ope·
rates as absolute discharge of the debt or not i<> always a question of inten-
tion of the partie.s to the commercial car.tract. Here, the promissory notes.
on the terms or the Contract cannot be regarded as arnounting to payment in
discharge of the obligation arising under the Contract on the ground that

c
since it is one of the modes of payment iaJicJt~d in the Contract the exe- \
cution of the notes should be held to be piyrnents by way of discharging the
obligation under the contract, because thero is yet one mode of payment
indicated the contract namely the opening or a Letter of Credit and the mere
fact of the Letter or Credit having been opened by Renusag:\r in a bank in
New York valid for 18 months will h1ve to bJ regarded as actual paymea i
which is hardly arguable. Fi.irther, a Bill or a promissJry note can never JI
go in the discharge of a debt unle~~ it i5 a p.1rt or a coatra:t that it shall
D be so. [478F-H, 481E-F]

Cornmissloner of Income Tax v. Ka1neshwar Singh of Darbhanga, AIR
[1933] P.C. 108; Keshav Mill> Co. Ltd. v. Com1nissio11er of Income Tax, AIR
[1950] Bombay 166, quoted with approval.
.
Commissioner of J,;con1e Tax v. M/s. Ogale Glass Works Ltd., AIR
E [1954] SC 429~ 19~5 (I) SCR 185; H.P. Gupta v. Hira Lal [1970] 3 SCR
788 discussed and distinguished. -

2.8 The terms of the contract, far from showing that these were pay-
ments in discharge of the original obligation clearly indicate that the parties
had intended that these were to operate as conditional p~yments. [481F-G]
-
F If Ardcle III of the contract which deals with the topic of payfilent of
price for the sale of good,; and services is carefully analysed, the following
factors emerge very clearly; (a) that the pro-notes ara not \Xpressed to be
payments; in fact it is in terms stated that the ~'total contract purchase
price shall be paid by the purchaser in lawful money of the USA" (Article
III-A) and promissory notes are not "lawful money of USA"; ~b) that
because the Contract so prov1d.::s even the pro-notes also recite that the
principal and interest there-under are "payable in lawful money of the USA";
G (c) that Article III-A (3) ;,hich deals with pro-notes provides for payment of
the remaining 90% of the price ''in accordance with the following Schedule
or Paynients·" and expressly states that '"the obligation to make such payments
is to be evidenced by four series of purchaser's unconditional negotiable
promissory notes''~ which clearly shows that the pro· notes are not payments
but are intended merely to be the evidence of the obligation to pay
the price; (d) that though stated to be "unconditional and negotiable 11
(perhaps so between the drawer and subsequent assigness in case of
H ne$otiation), as between the seller and tbe purchaser these have been made
RENUSAGAR CO. V. GENERAL ELECTRIC CO. 447

subject to several conditions such as-(i) the amounts thereof were payable A
only on the assumption that deliveries of items of equipment were completed
within 15 months of Contr~ct Effective Date and interest at the rate of 61%
was to become 6% on receipt of income Tax exemption (Art. III-A (3)" (b)
(ii) th~se were tc lie in Escrow Agreements to Qe released to the seller
syncronising with the stated progress of supply of goods according to certain
formulate (Art. 111-D), (iii) these were to be replaced by fresh Notes depen ..
ding on receipt of income· tax exemption (Art. III-A (3) (f) or price modi- B "
fication (Att. 111-D); (iv) each one contains a default clnuse saying "upon
default in the .,rompt and full payment of the principal or of the interest on
this Note when due, all of the notes in each and every series, together with
interest to the date of payment, shall immediately become due and be paya~
bleat the option and demand of the holder thereof". [48IG·H; 482A-H]

' These factors and circumstances and particularly the fact that
these noti.:s were as between the seller and the purchaser subject to several
conditions leading to variation and adju~tment and replacement and the
c
default Clause contained in each, clearly indicate that these were not inten-
ded to constitute independent or separate contracts by themselves but that
they were a part and parcel of one integrated transaction embodied in the
contract and that the promissory notes were and are meant to be governed at
all times by various olher terms of the Conttact and could be modified and D
substituted under given conditions as set out in the Contract. Therefore,
a dispute of non-payment of interest on the instalments-whether regular of
delinquent-is a dispute "relating to the Contract," In fact, both the
claims-2.1 million U.S. dollars and U.S.$ 7,84,151.84-arise "under the
contract" and have been preferred by GEC be forethe Court of Arbitration of
J.C.C. expressly on that basis and not under the promissory notes. [483A-E]
E
[The Court in view of the above, adopted ''Non-liquet" on the ~ub·
inission for the appellant based on the so-called factors of unconditional
aature and negotiability of the promissary notes as destroying the arbitra-
bility of the claims thereunder and also the alternative submission for G.E.C.
that the two claims ,,·ould still fall within the wide expressions occurring in
the contract even on the assumstion ·that the promissory notes are severable
from the Cont;act, that the obligation arising thereunder is different from F
the one under the Contract and that these promissory notes are in payment
of the obligation to pay the price under the contract.] [483E·G]

2.9 As regards the third claim of compensatory damages, the mere
fact that Renusagar is being saddled with this liability as tort-feaser, a
stnke-holder and/or a constructive trustet'", by itself will not justify a con-
clusion that the same is not covered b)' the arbitration clause because the
question is not whether the claim lies in tort but the question is whether G
even though it has lain ill tort it "arises out of" or is "related to'' the
Contract, that is to say, whether it arises out of the terms of the Contract
or is consequential upon any breach thereof. [483G.~; 484A]

' and by way of
The third claim is based on and is consequential upon
corollary to the non-paym~nt of the two detained amounts by Renusagar to
GEC in breach of the terms of the contract. Therefore, before adjudicating
upon thi$ ~laiiu the adjudicating authority will have first to adjudicate H
448 SUPREME COURT REPORTS [1985] I S.C.R.

A upon the first two claims preferred by G.E.C. and only if H is found that
GEC is entitled to receive the first two amounts which ought to have been
paid by the appellant under the terms of the contract but which Renus::igar
had failed to pay that this third claim could, if at all be allowed to GEC.
In the real sense, therefore, this third claim is directly, closl!ly and inextri-
cably connected with the terms and conditions of the Contract, the payments
to be made thereunder ao.d the breaches thereof and as such will have to be
B regarded as a clain1 ''arising out of" or "related to" lhe contract. [484A-C]

Woolfv. Collis Removal Se,,ice,[1947] 2 All. E. R. 260;.Ast'o Ven-
cedor Compania Naviera SA of Panama v. Mabanaft Gm b. h, [1971] 2 All.
E. R. 1301; Govt. of Gibra/ter v. Kenney & Anr [1956] 3 All. E. R. 22
quoted with approval. l
c
Alliance Jute Mills Co. Ltd. v. Lal Chand Dllara.;chand and Another,
AIR 1978 Cal. 19, Union of India v. Sa/wceh Tin.>be1 Construcl!on (/ndia, &
Ors. (1969] 2 SCR 224; Ruby General Insurance Co. Ltd. v. Peary Lal Kurnar
[1952] SCR 501, referred to.

D Monro v. Bognor Urban District Cofir;cil [1914-15] Reprint All. E. R.
523; Ghewarchand v. Shiva Jute Bailing Lrd., AIR 1950 Cal. 568
distinguished.

The question as to whether a claim based on tort is a claim de hors
the contract which contains the arbitration clause or is directly or inex-
tricably connected with the contract has to be decided on the facts of each
E case and the language used in the arbitration clause. [488G-H]

3.1 The contention that even assuming that arbitrability of the three
claims falls within the wide ambit of the :trbitration cl1use and that therefore
Renusagar's suit is in respect of a matter agreed to be referred to the arbi~
tration within the meaning of section 3, in law, that is, under the law of
Forum (being the Indian law 1 in the instant case) the is5ue of arbitrability
F of claim cannot be finally determined by the arbitrators but must re~t with
the court and, therefore. Rcnusagar's 'suit cannot be stayed under section 3,
cannot be accepted, in the face of the scheme en" isaged in the Foreign
Awards Act. [498C-D]

3 .2 The scheme that emerges on a combined reading of sections 3 and
G 7 of the Foreign Awards Act clearly contemplates that questions of existence,
validity or effect (scope) of the arbitration agreement itself, in cases where
such agreement itself, in cases where such agreement wide enough to include
within its ambit such questions, may be decided by the arbitrators initially
but their determination is subject to the decision of the court and such deci-
sion of the court ~aa be had either before the arbi,tration proceedings comm-
ence or during their pendency, if the matter is decided in a section-3 petition
or can be had under section 7 after the award is made and filed in the Court
and is sought to be enforced by a party thereto. All that the condition
H (3) of section 3 requires is that the Iesal proceedings m1,1st ~e in respect of

,.
RENUSAGAR CO. V. GENERAL I LECTRIC CO. 449

,. matter "agrC"ed L be refernid to the arbitrat 'on" and there is no warrant A
to add further words riamely, ''agreed to be r :ferrcd to the arbitration for
fin.11 determination."{) OH;·501A; D]

3.3 There is noth' ig in the general law of arbitration either.. ED!!:liSb
or Intlirtn which prevents t 1e arbitrators or on umpire from deciding '}Ues-
1:ons of their own jurisdi tioo provisio.1ally or tcniatively and to proceed
_,, to 'llrtke their awards o that basis, thotJgh their own jurisdiction would
B
be st °'iect to the finnl ctcrmination by d::: court and if the cour~ takes a
contrary "iew their ~. "rd will not be given eftccl .. : - d this is exactly the
scheme of the._.:,.. e1gn Awards Act. [502E-F]

- Attomey General fer Manitoba v. Kelly and Ors.; [1922] l AC 26~
at 27 5; Dalmia Dai1_v Indistries Ltd v. National Bank of Pakistan [1978] 2 c·.
Lloycd LR 223 at page 292-293; Becker Auto Radio's case [1978] SSS
Federal 2nd series page 39; R. Prince and Co. v. G vemor-Genera!-ln
Council, AIR 1955 p. 240 at page 242; Municipal lloardv. Eastern U.P.
Elect lcity Supplv Co. Ltd. and Ors. AIR 1958 see 506 at page 510; M/s.
Jaf;an 1'.'ath Pltool Chand v. Union of India and Ors. AIR 1982 Delhi 93 at
page 97 and 98; Vallabh Pitti v, Narsingdas, 65 Bombay L.R. 20 held in
applic;able,
D.
3.4. Further~ the statement that many national arbitration laws
allow the arbitrator to give a provisional ruling on his competence iii order
not to del::iy the arbitration and to alleviate dilatory tactics by obstructing
respondents is bor-ne out in regard to the general law of arbitration both-
Fnglish and Indian-by several decisions. Similarly, there is no difference
t...etweeo English law and Indian law on the point that an arbitration agree~ E.
n 'Jt which emp )Wers an arbitrator to decide the question of ils existence,
va"idity or effect (scope) is neither invalid nor vo-id. [5020-H; 504 A]

Dalmia Dairy Industries Ltd. v, National Bank of Pakistan [1978] 2
Lloyed L.R. 223 at page 292, 293; Brown v. Oesterrefchischer Walbesitzer
R. G111bh [1954] l QB P. 8; Lunada Exportadora and Ors. v. Tarnari and
So,1s and Ors. [1967] 2 Llyod's Rep: 353; 364; Vallabh Pitti v. Narsingdas, F
65 Bombay, L.R. 20; Pannallal Sagoremull v. Fatey Clzand Muralidhar,
[1951] 88 CLJ 34; Fertilizer Corporation of India v. Chemical Construction
Corporation 15 Bombay Law Reporter 335 referred to.

3-5. However, in cases where the arbitration clause contained in
the underlying commercial Contract is so. widely worded as to incliide G
within its scope the questions cases have m~1de a distinction bclween
questions as to the its existence or validity of the agreement on the one
hand and its effect (scope) on the other and have held that in the case of
the former those questions can not be decided by the arbitr.ttors, as by
sheer .Jogic the arbitration clause must fall along with the underlying
commercial contract which is either non-existent or illegal, while in the
case of the latter it will o:·dinarily be for the arbitrators to decide the effect
(scope) oft he arbitration agreement, for the reasons that (a) conceptually
a challen$e to th.e e~istCQIYe of validitr of t41! arbitr~rion a~reeqie~t coq-
450 SUPREME COURT RUPORTS (1985] I S.C.R.

A tained in an underlaying commercial contract is fundamentally different
from an inquiry into the scope and effect of such agreement in as much
as the former goe~ to the rOot of the arbitration agreem:nt whereas the
latter pre-supposes that the arbiiration agrement exists in fact a!ld in law
and the inquiry is then undertaken as to its true scope and effect; (b) when-
ever the question of arbitrators, jurisdiction depended upon the scope and
effect of the agreement, courts have readily direcled the parties to go before
B tho arbitrators. [504H; 50SA·B; D·F]

HeymJJn v. Darwin Ltd. (1942] AC 356; Jawahar !al Burman v. Union
of India [1962] 3 SCR 769; Water Supply Service India (P) Ltd. v. The
Union of India and Ors., AIR 1971 SC 2083 at 2085; Willesford v. Watson
[1873] L.R. 8 Ch. App, 473; referred to.
3.6 A stay of the suit either under sectiOn 3 of the Foreign Awards
c Act or under section 34 of the Arbitration Act, 1940 may have the effect
of finally disposing of the suit for all practical purposes. But that is no
reason why ·the relief of stay should be refused by the Court if the concern~
ed legal provision requires the Court to do so. Here, section 3 itself
indicates that the proper stage at which the Court has to be fully satisfi·.:d
about these conditions is before granting the relief of stay in a section
3 petition and there is no question of the court getting satisfied about these
D
conditions on any prima facie view or a pro tanto finding thereon. Parties
have to put their entire material before the Court on lhese issues (which.
ever may be raised) ~nd the Court has to record its finding thereon after
considering such material. [507D-G]

Though section 34 of the Arbitration Act, 1940 confers a discretion
upon the Court in the matter of gn1nting stay of legal proceedings where
E there is an arbitration agreement, before granting the 3tay the court has
to satisfy itself that arbitration agreement exists factually and legally and
that the disputes between the parties are in regard to the mi.tiers agreed
to be referred to arbitration (these aspects fall within the phrase 'if satis-
fied that there is no reason why the matter should not be referred,'
occurring therein>. The Court under section 34 must finally decide these
issues before granting stay. [507H; 508A-B]
F
Wher.e on an application made under section 34 of the Arbitration
Act for stay of a suit, an issue is raised as to the form·1tion, existence or
validity of the contract containing the arbitration clause, the Court is not
bound to refuse a stay but may in its discretion, on the application for
stay decide the issue as to the existence or valirlity of the arbitr11.tion
agre~ment even though it may involve incidentall.y. a decisio~ .as to the
validity or existence of the parent contract. If this is the position under
G section 34 of the Arbitration Act which confers discretionary power upon
the court, a fortiori the Court acting uadersection 3 of the Foreign Awards
Act must decide such i~sues at that stage when the grant of stay is obligatory.
[1975] 2 AU. E.R. 549; Anderson Wright Ltd. v. Moran and Co. [1955]
I SCR 862; Khushlram v. Hantumal [1948] 53 CWN SOS at page 518 refer-
red to. [SlOB-C]
In the instant case, the issue pertained to the arbitrability of the
&hr~ ~laims under the Arbitration claqse in tl~e c~ntra~t anc;l depeodecl
ff
RENUSAGAR co. r. GENERAL ELECTRIC co. (Tulzapurkar, J.) 4SI

U?O:t the proper c;,n'itru:tion thereof in the light of the conduct of the \.
parties an surrounding circumstances and no prejudice was caused to any of
the parties as both Renus1gar's application for injunction and GEC's stay
petition under section 3 were heard together and parties did put before
the court-Trial court, the Appe1\ court and even Supreme Court-the
entire material such as each wanted to rely apon and sought a decision on
the concerned issue and therefore, the prayer for injunction restraining B
arbitration sought by Renusagar was rightly refused. The triable issue
raised in the suit having been found upon against Renusagar no question
of balance of convenience survives. [S lOE~F]

(The Court directed that the decision of issue of arbitrability of three
claims will have to be regarded as final1 conclusive and binding and that
issue would not arise before the Court of arbitration of I.C.C. and eveo
if it is raised it would be purely academic.) [S lOG-H]
0

CIVIL APPELLATE JURISDICTION : Civil Appeal

No. 2434-35 of 1984
D

Appeals by Special leave from the Judgment and Order dated
the 19th to 21st day of October, 1983 of the Bombay High Court in
Appeal Nos. 404 & 405 of 1983.

F.S. Nariman, S.S. Ray, I.M.Chagla, P.L. Dubey, A.P E
Chinoy, E.B Desai, N.P. Bharucha, N.R. Khaitan, Anil Kumar
Sharma & Praveen Kumar for the appellants.

N.A. Pa/khivala, K.S. Cooper, S.F. Dastur & Dr.· Y.S. Chitale,
S.S. Shroff. S.A. Shroff & Mrs. P.S. Shroff for Respondents in CA.
No. 1488 of 1984. t'

K.S. Cooper, i.J. Bhatt, Amit Desai, S.A. Shroff and
Mrs. P.S. Shrojffor the Respondent in CA. No. 1489 of 1984.

The Judgment of the Court was delivered by
G'
TULZAPURKAR, J. These two "appeals raise the following two·
questions for our determination :

1. Whether under sec. 3 of the Foreign Awards (Re-
cognition and Enforcement) Act, 1961, having regard H
452 SUPREME COURT REPORTS [1985] j s.C.Ii.

to its scope, a suit in the nature of a petition under
A
sec. 33 of the Arbitration Act, 1940 could be stayed ?
If, so whether the Ist Respondent~ have made out a
case for staying the Appellants' suit No. 832 of
1982?

2. Whether the three claims referred by the !st Respon-
B dents to the Court of Arbitration of the 2nd Respon-
dents are beyond,the scope of the Arbitration Clause
being Article XVII contained in the Contract dated
August 24, 1964 or they are "arising out of or related
to" the said Contract ?
a
The facts giving rise to the ·aforesaid two questions may be
stated. The Appellants, Renusagar Power Company Limited
(for short 'Renusagar') are a company incorporated under the
Companies Act, 1956 having their Registered Office at Renukoot,
Distdct Mirzapur in Uttar Pradesh. The !st Respondents, General
D Electric Company (for short 'G.E.C.') are a company incorporated
under the laws of the State of New York and carry on their busi-
ness imer a/ia at 570, Lexington Avenue, New York, U.S.A. The
2nd Respondents are the lnternational~Chambor of Commerce (Court
of Arbittation) (for short 'l.C.C.') having their registered office in
Paris, Fra nee.
E
By a Contract in writing dated August 24, 1964 (bearing Ref.
IGE.9584) G.E.C. agreed to sell to Renusagar equipment for a
thermal electric generating plant to be erected at Renukoot on
the terms an J conditions set out therein. The work to be per-
F . formed under c he contract included the supply of equipment, spare
parts and sen ices in accordance with the'Proposed Specifications'
dated Novemb. r 12, 1963 and contained in G.E.C.'s ]$Iler dated
October 14, 1963 together with the attached Minutes of the Meet-
ing of October 10, 1963. The total purchase price' called the
'coutract Base Price, for all the work was$, 13,195,000 payable by
G Renusagar in lawful currency of the U.S.A. in the manner stipu-
lated in the Contract. It appears that the parties inten\)ed that
delivery of the equipment and spare-parts etc. would be completed
within 15 months of the Contract Effective Date (which was
December 31, 1964), i.e. up to March 30, 1966 and that the ere-
ction of the plant would be completed within 16th to 30th Month
(i.e. from April I, 1966 to June 30, 1967) and that the plant would
" H
RENUSAGAR co. v. GENERAL ELECtRic co. (Tulzapurkar, J.) 453

be fully operational by the end of 30th Month from the Contract A
Effective Date. The parties therefore, agreed that substantial pay-
ment of the purchase price by Renusagar should commence when
the plant<became operational, i.e. by June 30, 1967; it was also·
agreed t!lat no interest would be payable by Renusagar during
the delivery period, that interest shall be paid during the erection B
period (i.e. 16th to 30th Month) and thereafter till payment but the
interest during the erection period would be capitalised and added
, on to the principal. Accordingly, Art. III of the Contract stipu-
lated that initially 10% of the total Contract Base price (the
amount coming to U.S.$ 1,319,SOO)'should be' paid either in cash
or by means of a Letter of Credit within 30 days of the Contract
Effective Date and that the balance of 90% of the purchase price
plus interest at 6-1/2% per annum from 16th to 30th Month aggre-
gating to U.S.$ 12,776,058,75 ($ 11,875,500. for principal plus $
900,558,75 being the capitalised interest at the aforesaid rate for
the aforesaid period) should be paid in accordance with the sch- D
edule of payments set out therein. The schedule for the payment
of the said balance of 90% of the purchase price provided for pay-
ment to be made in sixteen six-monthly instalments of U.S. $
798,503.68 each, the first of such instalments being payable on
30-6-1967, the second on 31-12-1967, the third on 30·6-1968, the
fourth on 31-12-1968 and so on with the last instalment falling due
on 31-12-1974. The obligation to make such payment was to be
evidenced by 4-series (A-B-C-D) of 16 unconditional negotiable
promissory notes to be executed by Renusagar. It was further
agreed that in case G.E.C. received an exemption from the Govern-
ment of India from payment of Income-Tax on interest receivable
by it from Renusagar then the interest for that portion of the F
period shall be computed at 6% instead of 6!% per annum and
that the concerned promissory notes would be replaced or substi-
tuted by fresh promissory notes for amounts reflecting the adjust-
ment in payment of interest necessitated by the grant of tax exemp-
tion. The Contract further provided under Art. XIV-B that should
G
G.E.C.'s application for exemption be denied Renusagar may
withhold the Indian Income-tax applicable to any payments of in-
terest but shall furnish G.E.C with tax receipts on all withheld
amounts paid to the Government of India. Such provision was
obviously made with a view to enable G.E.C. to obtain corres-
ponding credit for the sum in their U.S. Tax Assessment. The
Contract also required Renusagar to furnish guarantee of the.
United Commercial Bank for payment of the full amount of pro· H
454 SUPREME COURT REPOR_TS (1985] l S.C.R.

A missory notes : the form of the promissory notes and the Deed of
Guarantee were annexed to the Contract. Under Art. XIX-A it
was provided that the rights and obligations of the parties would be
governed in all respects by the laws· of the State of New York,
U.S.A. The Contract contained an Arbitration Clause in Art. XVII
the relevant portion whereof runs thus :
B
"Any disagreement arising out or of related to this cont-
ract which the parties' are unable to resolve by sincere ne-
gotiation shall be finally settled in accordance with the
Arbitration Rules of the International Chamber of Com-
merce. As provided in the said Rules, each party shall
c appoint one Arbitrator. and the Court of Arbitration of
the International Chamber of Commerce shall appoint the
third Arbitrator ......... Arbitration proceedings shall be
conducted at such time and place as the Court of Arbitra-
tion shall decide. Judgment upon an award may be entered
in any court of competent jurisdiction."
D

Pursuant of the said Contract Renusagar made the initial pay-
ment of 10% of the Contract Base price and also issued in all 64 pro-
missory notes (16 in each of the four series) all dated 31-12-1964 but
with due dates of payment synchronising with the dates indicated in
E the Schedule of payments and forwarded the same to the Escrow
Agent under the Escrow Arrrangment mentioned in Art.III-B where-
under the Notes were to be releasd to G.E.C. in numerical sequence
and in amounts determined by the Escrow Agents by applying certain
(rather complicated) formulae specified in sub-clauses (a) to (e) of
Clause-B. Renusagar also furnished a guarantee executed by the
F UCO Bank irrevocably guaranteeing to G.E.C. and to any subsequ-
ent holder.in due course on'lie Notes the full and prompt payment
of the principal and interest on the Notes. Subsequently by an
agreement recorded in G,E.C.'s letter dt, June 11, 1965 and as
approved by the Central Government the said 1964-Contract (IGE-
9584) was extended to include the supply of unfabricated structural
G
steel to Renusagar for approximately U.S. $ 300,000 on the same
conditions in regard to payment as contained in the original 1964
Contract. It was agreed that Renusagar would issue a fifth series (E-
series) of 16 promissory notes bearing interest at 61% per annum
evidencing 90% of the price or'the structural steel; the instalments
H under the 5th series were payable on the same dates as the corres-
RENUSAGAR co. v. GENERAL ELECTRIC co. (Tulzapurkar, i.) 455
ponding promissory notes of the earlier four series. It was expressly A
clarified in the letter of June 11. 1965 that except for the modifica-
tions made by it all other t~r-ms and conditions of the Contract IGE
9584 shall apply; in other words the Arbitration Clause of the 1964-
Contract became applicable to the said supply of structural steel.

During the implementation of the Contract two events occurred B
giving rise to G.E.C.'s three claims against Rcnusagar that are sought
' to be referred to arbitration of I.C.C. namely. (I) grant of tax exem-
ption by the Government of India to G.E.C. in respect, of interest on
purchase ···price receivable by it from Rer.usagar and the revocation
thereof and (2) re-scheduling of dates of payment of purchase price
agreed to by the parties but not approved by the Reserve Bank and ..
c.
the Government of India. ·

As regards the former, it appears that by two orders dated
September 3, 1965 and June 7, 1967 passed under s... 10(15) (iv) (c)
0
of the Indian Income Tax Act 1961 the Government of India grant. q
ed exeniptlon to G.E.C. from payment of Indian income-tax on the
interest receivable by it from Renusagar with the result that G.E.C.
became entitled.to receive the interest on the unpaid purchase price
at the rate of 6% tax free instead at 6!% subject to tax. However,
by its subsequent order dated September 11, 1969, the Government E
of India purported to retrospectively cancel or revoke the said tax
exemption, whereupon in or about May 1970 Renusagar filed a writ
petition (Civil writ No. 179 of 1970) in the Delhi. High Court
challenging the said cancellation or revocation of tax exemption and ·
further sought an injunction restraining the Government of India
from implementing the said cancellation or revocation. On May 18,
1970 Renusagar obtained an order· from the Delhi High Court that
;Jn its fu~nishing security for Rs. four lakhs the cancellation or revo- .
cation of exemption shall be stayed and the Government of India
and its officers were restrained by an interim injunction from. en-
forcing or implementing the impugned order dated September 11,
G
1969; in other words on furnishing seeurity of Rs. four lakhs (which
Renusagar did) the tax exemption continued with the result that
there was no necessity to deduct any amount from interest payable
to G.E.C. nor, to deposit the same as tax with the Indian Govern,
ment. Even so, Renusagar by its letter dated June 30, 1970 informed
G.E.C. that it would continue to calculate interest at 6!% and make
payment to G.E.C. after withholding and keeping in reserve the tax
li1')i Iity out of the amount due to it. The amount so withheld came
456 \SUPREME COURT REPORTS t198SJ i s.C.R.
i
A· to 73% of interest payable to G.E.C. on the instalments of purchase
price after 1970 and Renusagar only made payment of interest to the
tune of 7% to G.E.C. Surprisingly, the interest at 73% which
represented the tax deducted at source was not even made over by
.- Renusagar to the Indian Government which resulted in depriving
G.E.C. of the benefit of getting the corresponding credit in their U:
B S. Tax Assessments. Ultimately the Delhi High Court by its
judgment and order dated November 17, 1\180 allowed Renusagar's
writ petition and quashed the impugned order dt. Sept. 11, 1969
revoking the tax exemption. In the correspondence that ensued
Renusagar not merely acknowledged that the amount so withheld
and credited to reserve was U.S. S 24,12, 680.20 (calculated on the
a basis of 6!% subject to tax} (vide letter dt. 25.3.76 together with
Statement attached) but also sought from tbe Commissioner of In- r-+--
1 .
come Tax a no-objection certificate and from the Reserve Bank its
approval (vide Two Letters both dt. 3-6-1981) for making the re-
mittan.ce to G.E.C. of U.S.$ 21,30,785.52 (calculated on 6% tax
free basis to which G.E.C. became entitled as a result of Delhi High
D
Court's/ decision}. It is this sum of 2.1 Million Dollars (U.S) being
the Unpaid Regular Interest, wrongly deducted and wrongly withheld
and kept with themselves by Renusagar from 1970 onwards which is
the first claim, referred by G.E.C. to the arbitration of I.C.C.

E As regards the latter it may be stated that on account of the
·alleged delays in the shipment and erection schedule Renusagar re-
quested G.E.C. to grant deferment in the payment schedule and as a
• result of the negotiations that ensued, Renusagar and G.E.C., inter
alia, purported to amend the dates of payment of the purchase price
evidenced by the promissory notes and certain decisions in that be-
F half Were recorded in a Memorandum dated December 30, 1966 and
~letters dated January 5, 1967, October 4, 1967 and October 9, 1967;
this·- purported re:scheduling of the dates of payment of the
purchase price as· arrived' at by the aforesaid documents was sought
to-be reflected by !he parties in the said Contract I.G.E. 9584 by
executing a formal Amendment dated October I, 1968 thereto. This
G . Amendment- expressly provided that all other terms and conditions
of the original contract shall remain in full force and effect. Renus-
- agar executed fresh promissory notes as per the Amendment dt. Oct.
'-c.1, 1968 as also having regard tot.ax exemption granted as above and·
, sent them to the Escrow Agents. The October 1968 Amendment was,
however, subject to the approval of the Reserve Bank and the Cen-
H. tral Government. It appears that in December 1968 the parties once
RANUSAGAR co. V, GENERAL ELECTRIC co. (Tuizapurkar, J.) 457
again atte~pted to . re-schedule the payment of instalments of pu~
ahase price. In July 1969 Renusagar sought the Central Governmen.t s A
appr ival to the re-scheduling of the dates of payment as embodied
in _,etober 1968 Amendment as also in the Memorandum of the
Meeting held in December 1968 but by letters dated August 1, 1969
and August 4, 19(i9 the Central Government declined to approve the
re-scheduling of the dates of payment on the ground that it would
B
result in larger out-flow of foreign exchange and advised Renusagar
to effect payments as per the original schedule including instalments
which had since fallen due. The result was that the original schedule
of payment ·remained operative and there was delay on the part of
the Renusagaf'to make payment of certain instalments on due dates.
Such delays occurred in respect of four instalments, namely,
instalments No.I evidenced by promissory note No.1 was payable
c
on 30.6.1967 but was paid (in instalments) by July 1970; instalment
No.2 evidenced by promissory note No.2 was payable on 31.12.1967
but the same was paid (in instalments) by December 1972; instalment
No.4 evidenced by promissory note No.4 was payable on 31.12.68
but was paid (in instalments) by December 1973; and instalment No.
D
5 represented by promissory note No. 5 was payable on 30.6.1969
but was, in fact, paid (in instalment) by February 1976. On account
of the delays in the payment of instalments of purchase price together
with interost Renusagar became liable to pay delinquent interest to
G.E.C. In the correspondence on the subject Renusagar accepted
the liability to pay such delinquent interest and made annual
E
acknowledgements thereof. In its telex message dated March 25, 1976
Renusagar in terms acknowledged its liability to pay such delinquent
interest amounting to U.S. S 8,48,010.52 (calculated on the basis of
6!% subject to tax) to G.E.C., which liability if calculated on 6%
tax free basis, to which G.E.C. became entitled as a result of the
Delhi High Court's decision, comes to US. $ 7,84,151.84. This F
liability for Delinquent !nterest is the second claim referred by G.E.C
to the arbitration of I.C.C.

The third claim for Compensatory Damages which G.E.C. has
made against Renusagar and which is sought to be referred to G
arbitration arises out of non-payment of the aforesaid two claims of
Unpaid Regular Interest and Delinquent Interest for over 12 years,
the quaat11m being calculated by way of interest on those two amo-
unts at the market rate of 18% per annum amounting to U.S. $
4,160, 534.88 up to 31 3.1982 (to be extended till date of actual pay-
ment). Accordmg to G.E.C. for a long period· of 12 years Re nu-
H
458 SUPREME COURT REPORTS (19S5j i S.C.R.

sagar has illegally and wrongfully retained these two funds with itself
A
and has enjoyed the use thereof for its own private advantage has
correspondingly totally deprived G.E.C. of their use for which
Renusagar must compensate. G.E.C. has also asserted that such
compensatory damages are due to it from Renusagar because Renu·
sagar must be regarded as stake-holder or constructive trustee of
B those funds from the various dates on which they became due and
payable but Renusagar has managed to retain them with itself on
one pretext or the other and under the common law jurisprudence
shared equally by Indian and American law, restitution is payable
by a stake-holder to the party ultimately determined to be rightful
beneficiary and owner of the funds.
c
It may be stated that though in the correspondence indicated
above Renusagar accepted its liability to pay the Unpaid Regular
Interset (2.1 million U.S- Dollars) and the Delinquent Interest
(U.S. $ 784, 151.84), by its letter dated September 21, 1981 Renu-
sagar put forward certain counter-claims and in a statement attached
D to that letter enlisted about 6 or 7 matters giving rise to such coun-
ter -claims against G E.C. By a notice of intention to arbitrate
dated March l, 1982, G.E.C. called upon Renusagar to remit the
aforesaid three claims, failing which steps to refer the disputes to the
Court of arbitration of I.CC. in pursuance of Art. XVII of the
Contract were threatened and this was followed by a letter dated
E
March 2, 1982 addressed to the Secretariat, Court of Arbitration of
I.C.C. containing a Request for Arbitration being undertaken by it
seeking reliefs as set out in the notice to Renusagar. After I.C.C.
took cognizance of the Request for Arbitration by G.E.C. it called
upon Renusagar to nominate its Arbitrator, file its reply and remit
F certain sums towards the administrative expenses and arbitration
fees.

On June 11, 1982, Renusagar filed suit No. 832/1982 in the
Bombay High Court on its Original Side against G.E.C. and I.C.C.
seeking a declaration th~t the claims referred to the arbitration of
G I.C.C. by G.E.C. were beyond the scope' purview of the arbitration
agreement contained in Art. XVII of Contract I.G.E. 9584 dated
August 24, 1964 and that G.E.C. was not entitled to refer the same
to the arbitration; a consequential prayer for injunction restraining
G.EC. and I.C.C. from proceeding further with the reference was
also made and an injuction was also sought against I,C.C. restraining
it from requiring Renusagar to make any deposit towards adminis-
trative expenses and arbiration fees. On the some day on a notice
ff
RANUSAGAR co. v. GENERAL ELECTRIC co. (Tlllzapurkar, J.) 459
of Motion an ex-parte ad interim relief in the aforesaid terms was
obtained by Renusagar. On August I l, 1982 G.E.C. filed Arbi- A
tration Petition No. 96 of 1982 under s. 3 of the Foreign Awards
(Recognitation and Enforcement) Act, 1961 seeking stay of suit No.
832 of 1982 and all proceedings therein and a prayer for vacating
the ad interim reliefs obtained by Renusagar was olso made.
B
Both the matters, G.E.C's. stay petition under s. 3 and Renn-
sagar, Notice of Motion for confirmation of ad interim reliefs were
heard together and disposed of by Mr. Justice Pendse by a common
judgment and order dated April 19-20, l 983. On a consideration
of the rival contentions that were urged before him the learned
Judge negatived Renusagar's contention that the Arbitration Clause 0
in the original 1964 Contract could not be availed of by G.E.C. as
a fresh agreement creating new rights and liabilities had come into
existence by reason of Oct. I 968 Amendment which did not provide
for arbitration on two grounds namely that the Oct. 1968 Amend·
ment had kept alive all' other terms and conditions of the 1964
Contract including Arbitration Clause and in any case the Oct. D
1968 Amendment had fallen through for lack of Government's
approval; he also took the view that though the first two claims
sought to be referred to arbitration by G.E.C. were based on the
promissory notes executed by Renusagar the issuance of the pro-
missory notes towards the purchase price was provided under the
Contract itself and these were not by way of any independent or E
separate contracts in discharge of the obligation to pay the purchase
price under the contract and since 'the Arbitration Clause covered
all disputes arising out of the Contract those claims fell within the
Arbitration Clause; and as regards the third claim for compensa·
tory damages he took the view that the liability to pay the same
arose due to failure to carry out the terms and conditions of the F
Contract in regard to payment of purchase price and that even
assuming that the said claim was one in tort it was directly and
inextricably connected with the terms and conditions of the Con-
tract and certainly " arose out of" the Contract or was" in relation
•
to" the Contract and therefore could be entertained by the Arbi·
trators. As regards the prayer for stay of suit the" learned Judge G
held that since all the ingredients of s. 3 of the Foreign Awards
(Recognition and Enforcement) Act, 1961 had been satisfied it was
obligatory upon the Court to stay the suit and G.E.C. was entitled
to that relief. He,therefore, allowed the Arbitration Petition 96/
l 982, granted the stay of suit and all the proceedings therein and ff
460 SUPREME COURT REPORTS [19851 1 s.c.R.

vacated all the interim reliefs which were grante<!I earlier by the
ad interim order. Renusagar preferred two appeals bein~ eivil
Appeal Nos. 404-405 of 1983. At the hearing of the appeals eeun-
sel for Rcnosagar raised four contention: !irsts, according to him
an Arbitrator had no jurisdiction to desidr the limits of his own
jurisdiction and since in the case of international arl!>itratien
B the jurisdiction of the Arbitrator had to be cl "cided according
to the law of the Forum where the 6J.Uestion is raised cin
the instant case being the Ind ion Law) the jurisdiction of the Arbi-
trator, according to that law, had to be decid~d by the C@urt and nc\
by the Arbitral Tribunal; secondly, the dispu 'e sought to be referreJ
related substantiallv to the claim for interest and that claim had lo
C I be land was so stat~d in the Notice of intent< m to arbitrote) foun-
ded on the promiS>orv notes which were inde .lendent con'lracts by
themselves and therefore, the claim did not .1rise out of the suit
Contract and hence could not be the su 1jett of axbitrati;,n;
thirdly the claim for compernatory interest was really a elaim
for damages arising out of tort and s1 ch a claim was in
0
(1 any case not covered by the suit Contn ct and fell ou'sli'e
the scope of the Arbitration Clause; and foc1rtldy, in any even',
Renusagar had made out a pri11,a .facie case by rai<ing serious tr'abl r '·
issues in the suit wl1ich should enable it to claim an injuetion res-
training the arbitration proceedings. Though G.E.C. had rai ell a
E contention that the question of the Arbitrator's jurisdi<tion bd to
be decided according to American Law counsel for G.E.C. rr ade a
concession that for the purposes of the appeals the Court sho.1ld
proceed on theb.sis th1t that question was to be decided accord'ng
to Indian Law. Proceeding on that basis the court of .Appea t ne ,a.
lived all the contentions and ultimately confirmed the trial Judge's
p order whereby Renusagar's suit was stayed and the ad inter, m
reliefs were vacated.

In support of these appeals preferred against the judg•nent a.n d
order of the Court of appeal dated October 19-20-21, 19~3 Couns, I
for Renusagar have basically raised two contentions : (!)that tmde r •
G
s.3 of the Foreign Awards (Recognition and Enforcornent) Act,
,I
1961 (for short 'the Foreign Awards Act'), 00.vlng r.egard to its scope,
a suit in the nature of a petition under s.33 of the Arbit1 ation Act
1940. cannot be stayed and that no case has been made out by G.E.c;'.
for staying Renusagar's suit No. 832/1982 which is of that 1.ature and
(2) that on merits the three claims referred by G.E.C. totbo Court of
tt" Arbitration of I.C.C. are beyond the scope/purview of the Arl!>itr a·
RA1'USAG,1R co. 1'. GlflRAI. HLC'IRJC co. (Tulzopurkar, J.) 461

tion Clause being Art. XVII contained in the Contract I.G.E. 9584 A
as these do not "arise out of" nor "relate to" the said Contract.

By way of elaborating the first contention Counsel pointed out
that suit No. 832/1982 filed by Renusagar is merely for a declaration
that tjie three claims sought to be referred to arbitration are beyond B
the scope and purview of the Arbitration Clause and no other relief
on the merits of those claims is sought, that such a suit is really in
the nature of a petition under s.33 of the Arbitration Act, 1940,
inasmuch as it seeks to have the effect (scope) of the arbitration
agreement determined, that such a suit can never be stayed under
s.3 of the Foreign Awards Act and that, therefore, the petition c
under s.3 (which is really in the nature of s.34 application under the
Arbitration Act, 1940) is totally misconceived and lia blc to be dis·
missed ; Counsel further submitted that the suit filed by Renusagar
is not "in respect of any matter agreed to be referred to arbitration"
as required by s.3 and, therefore, the stay sought for by G.E.C.
should be refused ; Counsel further urged that the Court acting D
under s.3 (like the Court acting under s.34 of the Arbitration Act)
being a Court of limited jurisdiction cannot determine the question
of the existence, validity or effect of the arbitration agreement
(which is the only issue to be tried in Ranusagar's suit) and it is for
the Court trying the suit to decide the question raised in the suit
and, therefore, a stay, if granted under s.3, would finally determine E
the suit or render it almost dead for all practical purposes and,
therefore, no relief on the stay petition can be granted which will
have such effect ; Counsel finally submitted that the question raised in
the suit relating to the effect (scope) of the arbitration agreement,
which is the same as the question relating to the existence thereof, is
such as is incapable of being finally determined by the Arbitrators JI
and hence such a suit cannot be stayed under s.3 of the Foreign
Awards Act. According to Counsel the aforesaid submissions are
founded on the well·settled position in law-English and Indian
that questions or issues which pertain to the existence, validity or
• effect (scope) of an arbitration agreement contained in the under· G
lying commercial Contract are matters which relate to the jurisdic·
tion of the Arbitrator and are not within the competence of the
·Arbitrator however widely worded the Arbitration agreement may
be but these have to be decided by the Court in an application
under s.33 or in a suit which is of that nature as is the case here. H
On the other hand Counsel for G.E.C. contended that; the schemes
of the Foreii:n Awards A9t and tl]e Indian Arbitration Act 1940 ar~
462 SUPREME COURT REPORTS [1985] l S.C.R.
A
not identical, that there are various material differences which have
a bearing on the issue whether a suit seeking determination of the
effect (scope) of an arbitration agreement can or cannot be stayed
in a petition under s.3 of the Foreign Awards Act and that the
answer to the said question will depend upon proper construction to
B be placed on s.3 in the light of the scheme of that Act ; Counsel urged
that since all, the ingredients of s.3 have been satisfied the stay of
•
Rennsagar's suit will be obligatory. Alternatively, Counsel contend-
ed that the legal position both under English and Indian Law is not
as ha; been submitted by Counsel for Renusagar ; Counsel urged
c both under English law and Indian law it is well settled that it is
open to the parties to have an arbitration agreement incorporating
\
words of the widest amplitude so as to embrace even the questions
of its existence, validity or effect (scope) but according to him an
enquiry into the scope and effect of an arbitration agreement and a ,.
challenge to the existence or validity thereof arc not the same but
D fundamentally different inasmuch as the first pre-supposes that the
arbitration agreement exists in fact and in law and the enquiry ,..
then is limited to the scope and effect thereof ; counsel further I"
contended that whenever it is said that an arbitrator cannot decide
4
the question of his own jurisdiction all that is intended is that he
cannot determine--that too finally, the question of the existence
E (factual) or validity (i.e. legal existence) of the arbitration agreement
if contained in the underlying commercial Contract and this must be
so, for, if the existence or validity of the underlying commercial
Contract is successfully challenged the arbitration clause which is
the part and parcel thereof must perish with it and therefore the
Arbitrator will have no jurisdiction to decide the issue of the
F existence or validity of the agreement ; but even here it is well
settled that if the arbitration agreement so widel,y worded is separate
and independent from the commercial Contract the arbitrator will
have jurisdiction to decide the questions about the existence or
validity of the commercial contract ; but Counsel urged that these
principles have no application whatsoever to a case where the issue
G relates to the scope and effect of the arbitration agreement contained
•
in the underlying commercial contract and the arbitration agreement
is wide enough to include such an issue, for, in such a case
the Arbitrator will have jurisdiction to decide that issue. This
being the well settled legal 'position Counsel urged that since in
the instant case the Arbitration Clause contained in the underlying
commercial Contract IGE 9584 is of the widest amplitude it is the
Court of Arbitration of I.C.C, whkh will have jurisdiction to
RENUSAGAR co. v. GENERAL ELECTRIC co. (Tulzapurkar, J.) 463

adjudicate not merely three claims of G.E.C. on merits but also the
A
; ssue whether those claims fall within the Arbitration Clause or not.
However, Counsel further contended that the issue pertaining to the
scope and effect of the arbitration agreement, if raised in an appli-
cation under sec. 34 of the Arbitration Act the Court has to decide
it and the Court's decision thereof will naturally be binding on the
Arbitrators even though the ·issue was within the competence of the B
Arbitrators because of the wide wording of the Arbitration Clause
and that is why the Court of Appeal has rightly expressed the view
that since it has decided the issue whether the three claims "arise
out of" or are "related to" the contract affirmatively it will be bind-
j ing on the Court of Arbitration of I.C.C. and it will be futile for
that court of Arbitration to go into that question again. c
By w~y of elaborating the second contention Counsel submitted
that the under-lying commercial Contract (I.G .E. 9584) for supply and
sale of goods and services contains no obligation to pay any interest
after June 30, 1967 (i.e. after the 30th month from the Contract
Effective Date) whether at 6-1/2% or 6% but that such obligation D
to pay interest after June 30, 1967 is only to be found in the promi-
sorry notes and G.E.C.'s first claim of 2.1 million U.S. Dollars is
•• essentially (approx. 80%) for unpaid / regular interest due after
June 30, 1967 and the second claim for U.S. $ 78,151.84 is entirely
for delinquent interest due after June 30, 1967 and, therefore, sub-
E
stantialiy these two claims preferred before the Arbitrators do not
''arise out of" the Contract nor are they "in relation" thereto but
arise under the promissory notes and hence fall outside the scope of
arbitration agreement ; according to counsel further the promissory
notes executed by Ranusagur were in complete discharge of the
- obligation to pay price and interest thereon under the Conract and
F
these notes constitute independent and separate contracts by them-
sdves and, therefore, the libaility arising thereunder cannot be ragard-
ed as any arising out of the contract or in relation thereto and what
is more these claims have been described by G.E.C. in their Notice of
intention to arbitrate as arising under the promissory notes ; as
• regards the claim for compensatory damages, it being a liability
G
arising in tort for wrongful retention of the first two funds and since
it was being enforced on the basis of Renusagar's status as a stake-
holder or constructive trustee the same is clearly outside the scope
of the arbitratino agreement. Such being the precise nature of the
three claims that have been .referred by G.E.C. to arbitration, counsel
urged thatsince the issue of arbitrability of these claims is being raised H
464 SUPREME COURT REPORTS (1985] l 8.C.R.

A in Renusagar's suit it is bnt proper that till the issue raised in the suit
is finally decided by the Court the arbitration proceedings should
be injuncted. On the other hand Counsel for G.E.C. vehemently
disputed that the Commercial Contract (IGE 9584) contains no
obligation to pay any interest on unpaid purchase after June 30,'
1967 or that such obligation to pay interest after that date is only to
B be found in the promissory notes ; he pointed out that such obligation
is to be found in the Contract itself and could be readily inferred from
Art. III(A)3(c) read with Art.XIV-Band as such the first two claims
for Unpaid Regular Interest and Delinquent Interest due after June
30, 1967, preferred before the arbitrators not merely "arise out of"
but really arise "under" the Contract ; further the third claim for l
G
Compensatory Damages which flows by way of corollary from
wrongful detention of the first two funds which ought to have been
paid under the Contract is so closely connected with the contract'
that it is clearly "in relation to it"; all the three claims thus fall
within the scope of the Arbitration Clause. Counsel seriously dis·
D puted that the promissory notes executed by Renusagar were or are
in discharge of the obligation to pay the price and interest thereon
under the Contract or that these notes constitute independent and
separate contracts by themselves but contended that these are a part
of the Contract and the two are so inseverable and inextricably
bound together that the obligation under the Contract can never be
l
deemed nor intended to have been completely discharged by the
mere execution of the notes and in support of this contention several
aspects of and circumstances emerging from the Contract were
relied upon hv him. Counsel urged that real nature of the claims
preferred before the Arbitrators and not the nomenclature or
F description thereofbv any party would be relevant and decisive and
in this behalf was quick to point out that Renusagar, though it now
contends that such interest arises "under the promissory notes" has
described it as payable "under the contr.act" in para 4 of its writ
petition No. 179 of 1970 filed in Delhi High Court. Alternatively,
Counsei'contended that even assuming (a) that the promissory notes
are not an inseverable and inextricable part of the Contract, (b)
G
that the obligation arising under the notes is totally different from
the one arising under the contract and (c) that the notes are in dis-
charge of the obligation to make payment under the Contract (all
Glf which are strongly denied), the three claims would still be covered
by the Arbitration Clause which is of the widest amplitude, for
H
according to him it would be erroneous to determine whether a
claim arises out of. or in relation to the Co!ltract by looking at the
RENUSAGAR co. "·GENERAL ELECTRic co. (Tu/zapurkar, J.) 465

cause of action 011 which the claim is based. That being the posi- A
tion Counsel submitted that the Court of Appeal was justi'fied in
coming to the CCl'l~lusion that no prilna .facie case for injunction
restrainipg arbitration proceedings had been made out by Renusagar
and it had therefore rightly vacated the ad interim. injunction and
stayed Renusagar's suit.
B
It will be convenient to deal with the second question raised
by counsel for the appellants in these appeals first, namely, whether
• on merits the three claims referred by G.E,C. to the Court of Arbi-
tration of LC.C. are beyond the scope/purview of the arbitration
clause being Article XVII contained in the Commercial Contract
IGE 9584? The answer to this question must depend upon (a) what
c
disputes are covered by the arbitration agreement and (bl what is the
real nature of these claims under the reference. Aspect (a) Obviously
depends upon the language used in the arbitration agreement whose
construction would be relevant for deciding both the questions (i)
whether it embraces even questions of its exfatence, validity and effect D
(scope) (particularly the last which bears on the arbitrability of the
• three claims) and (ii) whet~er the three claims fall within its scope
or purview ; in other words, is the language of the arbitration agree-
ment wide enough to cover either of the questions or both. The
arbitration clause in the Commercial Contract has already been set
out in extenso in the earlier part of the judgment and the relevant E
words thereof are : "any disagreement arisinK out o,f or related to
this contract" shall be finally settled in accordance with the Arbitra-
tion Rules of the International Chamber of Commerce. It may be
stated that though the relevant rules of I.C.C. (particularly Rules
8.3 and 8.4) in terms confer jurisdiction upon the arbitratons to
decide questions as to the existence or validity of the arbi'tration F
agreement contained in the commercial contract, Counsel for G.E.C.
• principally relied upon the language used in the aforesaid arbitration
clause contained in the Contract itself for contending that it was of
widest amplitude and would cover both the questions (i) 'and (ii) .
• According to him, the English Courts as well as this Court have held G
that the words "under the contract" are wide but the words ·'arising
out of" the contract are still wider and the words "relating to" or
"in relation to" "in respect of'' or "in connection with" or "con-
cerning" the contract have the widest possible content. In view of
the authorities to which we were referred, we find considerable force
H
in this contention of Counsel for G.E.C.
,_
466 SUPREME COURT REPORTS [1985] I S.C.R.

A In Govt. of Gib rafter v. Kenney & Anr(1), the arbitration clause
covered :

" ......... any dispute or difference which shall arise or occur
between the parties hereto in relation to any thing or

matter arising out of or under this agreement ......... "
B
and Sellers, J. has observed at page 26 of the Report that "the
disfinction between matters "arising out of" and "under" the agree-
ment is referred to in most of the speeches in Heyman v. Darwins
Ltd. and it is quite clear that "arising out of" is very much wider
that "under" the agreement.
c
In Heyman v, Darwins Ltd.l') a contract for sole selling agency
contained an arbitration clause in the following terms :

"If any dispute shall arise between the parties hereto in
D respect of this agreement or any of the provisions herein con-
tained or anything arising hereout the same shall be
referred for arbitration in accordance with the provisions
of the Arbitration Act, 1889."
•
Though the main point decided by the House of Lords in the case
E was that where the parties were one in asserting that they had entered
into a binding contract a subsequent repudiation thereof by one of
them did not have the effect of annulling the arbitration clause con-
tained in the contract, each one of the law Lords dealt with the
aspect of the wide language that had been used in the arbitration
clause (words being "in respect of") and the distinction between
F mattef.s "arising out of" and "under the agreement'' has been put in
the clearest terms by Lord Porter at page 399 of the Report thus :-

"Jn such a case (case of repudiation) the question of damage
has still to be determined and the question whether there
has been repudiation may be still in issue. Are these dis-
G putes under the contract-I use the word "under" advisedly
since expressions such as "arising out of" or "concerning" ·-
have a wider meaning? I think they are."

Incidentally, while laying down the :ratio in the case as indicated

(I) [19S6] 3 All E.R. 22.
ff (2) [1942] AC!3S6,
RENUSAGAR co. v GENERAL ELECTRIC co. (Tulzapurkar, J.) 461
A
above, Viscount Simon L.C. also stated the law as to the circum·
stances under which an arbitration clause in a commercial contract
would become unenforceable thus :-

"If the dispute i• whether the contract which contains the
clause has ever been entered into at all, that issne cannot
go to arbitration under the clause, for the party who denies B
that he, has ever entered into the contract is thereby denying
that he has ever joined in the submission. Similarly, if one
party to the alleged contract is contending that it is void
ab initio (because for example the making of such a contract
J is illegal), the arbitration clause cannot operate, for on this
view the clause itself also is void."
c
In Dhanrajma/ Gobindram v. Shamji Ka/idas & Ca.(') this Court
has clearly taken the view that all questions which could be decided
in an application filed under s. 20 of the Arbitration Act, 1940 (and
such questions involve dealing with objections to the existence, vali· D
dity or effect (i.e. scope) of the agreement itself) would be encom·
pas'ed by a clause which contains the words "arising out of" or "in
• relation to'' the contract. The relevant observations at pp. 1040-41
of the Report run thus :

"We may dispose of here a supplementary argument that E
the dispute till now is about the legal existence of the agree-
ment inc)uding the arbitration clause, and that this .is not a
dispute arising out of, or in relation to a cotton transaction.
Reference was made to certain observations in Heyman
v. Darwins Ltd. In our opmwn, the words of
the Bye-law "arising out of or in relation to contracts" F
are sufficiently wide to comprehend matters, which
can legitimately arise under s. 20. The argument is that,
when a party questions the very existence of a contract, no
dispute can be said to arise out of it. We think that this not
correct, and even if it were, the further words "in relation
to" are sufficiently wide to comprehend even such ii case." G

In Khardah Company Ltd. v. Raymon & Co. (India) Private Ltd.(')
this Court, though ultimately it held that a dispute as to the validity
of the underlying commercial contract containing an arbitration

(I) [1961] 3 SCR 1020.
(2) (1963) 3"'CR 183.
H
468 SUPREME COURT REPOllTS [l 985) 1 s.C.R.

clause was not on'e which the arbitrators were competent to decide
A and that when the contract was invalid every part of it including
the arbitration clause was also invalid, on question of construction
of the expressions used in the arbitration clause did hold that the
expressions used were wide enough to cover a dispute as to the vali-
dity of the contract. Act page 188 of the report Justice Venkatarama
B Aiyer has observed thus :

"It cannot be disputed that the expressions "arising out of"
or Hconcerning" or ''in connection with'' or ''in consequence
of" in "relating to this contract" occurring in clause 14 arc
of sufficient amplitude to take in a dispute as to the
c validity of the agreement dated September 7, 1955".

As observed by Lord Porter in Heyman v. Danvins Ltd. (supra)
althougli as a rule the arbitrator cannot clothe himself with juris-
diction the question of his jurisdiction must ultimately depend on
the wording of the Arbitration Clause. At page 392 of the Report
D the learned law Lord has observed thus :

"I think it essential to remember that the question whether '
a given dispute comes within the provisions of an arbitration
clause or not primarily depends on the terms of the clause
itself. If two parties purport to enter into a contract and a
E dispute arises whether they have done so or not, or whether
the alleged contract is binding on them, I see' no reason
why they should not submit that dispute to arbitration.
Equally I see no reason why, if at the time when they pur-
port to make the contract they foresee the possibility ol'
such a dispute arising, they should not provide in the
F contract itself for the submission to arbitration of a dispute
whether the contract ever bound them or continues to do
so. They might, for instance, stipulate that, if a dispute
should arise whether there had been snch fraud, misrepre-
sentation or concealment in the negotiations between them -~-

as to make an apparent contract voidable, that dispute
G
should be submitled to arbitration. It may require very
clear language to effect this result, and it may be true to
say that such a contract is really collateral to the agreement
supposed to have been made, but I do not see why it shonld
not be done."
H
llilliUSAGAR co. v. GENERAL ELECTRIC co. (Tu/zapurkar, J.) 469
As an instance of a clause held to be wide enough to include
a determination of the ambit of the arbitrator's authority the learned . \
law Lord c;ted the decisiJn in Wi/bford v. Watson(l), In that case a
mining lease contained an agreement to refer the disputes between
the lessors and lessees to arbitrators or their umpire and the arbitra·
tion clause was very widely worded so as to include inter alia any
dispute "touching these presents or any clause or matter or the thing
herein contained or the constructf.1n hereo,f", in other words a dispute B
between the parties as to whether the instrument, according to its
true construction did or did not warrant a particular thing to be
done thereunder, was referable to and within the scope and authority
of the arbitrators and at page 477 of the Report Lord Selborne,
L.C. observed (which observations have been quoted with the appro-
val by Lord Porter in Heyman v. Danvins Ltd.) thus : I G

"It struck me throughout that the endeavour of the Appel·
!ants has been to require this Court to do the very thing .
which the arbitrators ought to do-that is to say, to look
into the whole matter, to construe the instrument, and to D
decide whether the thing which is complained of its inside
or outside of the agreement."
' Finally, the Court oi' Appeal held that the Court would not decide
but would leave it to the arbitrators to decide whether the matter in, E
dispute between the parties was within the agreement to refer and
stayed the suit.

In Jawahar Lal Burman v. Union of India(') while dealing with
the scheme of ss. 31, 32 and 33 and as also the scope of the s. 33 of
the Arbitration Act 1940 this Court has noted and recognised the
distinction between the existence or validity of the arbitration agree- F
ment on the one hand and its effect (scope on the other, though in
ss.31(2), 32 and 33 all the three clubbed or spoken of together. At
page 777 of the Report the Court has specifically said that the
effect of an arbitration agreement is treated as distinct from the
existence of the agreement" and has further observed that "an
G
application to have the effect of an arbitration agreement (deter-
mined) can be made provided the existence of the agreement is not
i11 dispute." It is true that this distinction been ha.s noted for purposes
of procedural aspects arising under the three sections but the several

(I) [1873] L.R. 8ch. Appeals. 473.
(2) [1962] 3 S.C.R. 769. H
470 SUPREME COlJRT REPORtS [ 1985] 1 s.c.R..

authorities discussed above. Particularly Heyman v. Darwins Ltd.
A
and Willesford v. Watson (which has been digested and annotated
at twci places in Russel on Arbitration at pp.91 and 171) have made
the distinction substantively.

ln Balabux Agarwa/la v. Sree Luchminarain Mfg. Co.(') Das, J.
has clearly envisaged the possibility of disputes as to the existence,
B validity or effect of an arbitration agreement being properly referred
a
to the arbitration of an arbitrator bv means of collateral or sub-
sequent agreement between the parties and the learned Judge has
pointed out that there was nothing in the scheme of ss.31 or 33 of the
Arbitration Act, 1940 to indicate that such disputes can never form
the subject matter of an arbitration agreement or must always be
0 decided by the Conrt as opposed to an arbitrator.

In Waverly Jute Mills Co. v. Raymon & Co.C2Jat p.224 of the
Report the following statement of law appears :

D "A dispute as to the validity of a contract could be the
subject-matter of an agreement of arbitration in the same
manner as a dispute relating to a claim made under the
contract. But such an agreement would be effective and •
operative only when it is separate from and independent of
the contract which is impugned as illegal. Where, however,
E it is a term of the very contract whose validity is in
question, it has, as held by us in Kharda Co. Ltd. case, no
existence apart from the impugned contract and must perish
with it."

Four propositions emerge very clearly from the authorities
F
discussed above : ·

1. Whether a given dispute inclusive of the arbiirator's
jurisdiction comes within the scope or purview of an
arbitration clause or not primarily depends upon the
G terms of the clause itself; it is a question of what the
parties intend to provide and what language they
emplo¥,

(l) !LR [194811 Cal, 265.
(2) 11963] 3 S.C.R. 209.
H
•
RENUSAGAR Co. v. GENERAL ELECTR\C co. (Tulzapurkar, J.) 471
2. Expressions such as "'arising out of" or "in respect of" A
or "in connection with" or ''in relation to" or "in
consequence of" or -"concerning" or "relating to"
, the contract are of the widest amplitude and content
and include even questions as to the existence, validity
and effect (scope) of the arbitration agreement. B

3. Ordinaril)' as a rule an arbitrator "annot clothe himself
with power to decide the questions of his own jurisdic-
tion (and it will be for the Court to decide those
questions) but there is nothing to prevent the parties
from investing him with power to decide those c
questions, as for instance, by a collateral or separate
agreement which will be effective and operative.

4. If, however, the arbitration clause, so widely worded
as to include within its scope questions of its existence
validity and effect (scope), is contained in the under- D
lying commercial contract then decided cases have
made a distinction between questi.o n'as to.the existence
and or validity of the agreement on the one hand and
its effect (scope) on the other and have held that in the
case of former those questions cannot be decided by ·
E
the arbitrator, as by sheer logic the arbitration clause
roust fall along with underlying commercial contract
which is either non-existent or illega l while in the case
of the latter it will ordinarily be for the arbitrator to
decide the effect or scope of the arbitration agreement
F
i.e. to decide the issue of arbitrability of the claims
preferred before him.

At this stage, however, we are concerned with only the first
three propositions mentioned above about which no serious dis-
pute was raised by Counsel for Renusagar. We are conscious that G
Counsel for Renusagar have strongly disputed the correctness of

- proposition No. 4 above, but we propose to deal with their caveat
against it together with the authorities relied upon by them in
support thereof later. At this stage it will suffice to observe that
since the parties to the underlying Commercial Contract here have
used the expressions "arising out of" or "related to this contract"
in the arbitration clause contained in the Contract, there can be no
doubt that the parties clearly intended to refer the issue pertaining H
472 SUPREME COURT REPORTS (1985] l S.C.ll..
to the effect (scope) of the arbitration agreement to the Conrt of
Arbitration of I.C.C. in other words, the issue about arbitrability
of the three claims under reference has been referred.
Turning to aspect (b) which is really the crux of the matter on •
merits, we shall have to ascertain the precise nature of the three
B claims in order to determine whether they fall within the arbitra-
tion clause which uses expressions of the widest possible amplitude
and content. While narrating the chronological events in the
earlier part of our judgment we have indicated what these three
claims are and how they have arisen. The three claims are : (a)
2.1 million U.S. dollars being the Unpaid Regular Interest, (b) U.S.
c S 7,84,151.84 being the Delinquent Interest and (c) 4.1 million U.S.
dollars being the Compensatory Damages. As explained earlier the ·
first claim represents the quantum of i3% of the regular interest~
which was wrongly
. deducted and
. . wrongly
, withheld and retained by
Renusagar from 1970 onwards allegedly for payment of income-tax
notwithstanding the Delhi High Court's judgment in effect retros-
D pectiyely restoring the tax exemption granted in favour of G.E.C.;
the second claim represents interest claimed by G.E.C. on account
of the delay that occurred in the payment of four instalments of •
purchase price together with interest on their due dates as per the
original Schedule of Payment, while the third claim is by way of
.E compensation for illegally and. wrongfully retaining and enjoying
. the use of the first two funds by Renusagar and depriving G.E.C.
the use thereof for 12 long years. Whereas Renusagar has conten-
ded thatnone of these claims falls within the purview of the arbi-
tration clause G.E.C. has claimed that all of them do within the
wide language of that clause.
F
'- .. As regards the first two claims Counsel for Renusagar have ,
'· , pointed out that admittedly the first claim substantially (approx. '-.J
80%) and the second claim entirely are for interest due after June ,~
30, 1967 (i.e. after 30th month from the Contract Effective Date)
and according to Counsel since the underlying Commercial Cont-
ract (IGE 9584) for supply and sale "Of goods and services contains
G no obligation to pay any interest after June 30 1967 and since only
the promissory notes provide for payment of such interest after
June 30, 1967, these two claims do not "arise out of" the contract,
.--- nor are they "in relation thereto" but arise under the promissory
notes and hence fall outside the scope of arbitration clause. Coun· •
H sel further urged that the promissory notes executed by ~enusagar
were in complete discharge of obligation to pay pric~ and interest
RENUSAGAk co. v. GENERAL ELECTRIC co. (Tulzapurkar, J.) 473
thereon under the Contract and since these notes constitute
independent and separate contracts by themselves the liability ari- A
sing thereunder cannot be regarded as any arising out of the Con-
tract or in relation thereto and in this behalf strong reliance was
placed hy Counsel on the fact that in its Notice of intention to
arbitrate G.E.C. has described these claims .as arising "under the
promissory notes". Counsel pointed out that Article Ill of the
Contract provides for payment of the total purchase price in three
modes, the third mode being by executing promissory notes and
urged that since the requisite promissory notes were executed by
Renusagar these notes must be regarded as liaving been executed
in the complete discharge and satisfaction of the obligation under
the Contract and that fhe sole obligation which survives since ~fter
the execution of the notes is the one which arises under the notes.
In support of this contention counsel relied upon two decisions of
this Court, namely, (I) M/s. Ogale Giuss Works Ltd.(1 ) case where
the posting of cheques by a purchaser by way of remitting the bills
payable to die seller was held to amount to payment (that is, in dis-
charge of the obligation to pay the price for goods purchased) and D
(2)H. P. Gupta v. Hira Lal (2 ) where the posting of a dividend warr-
ant (cheque) by a company at Delhi f9r despatching it to a sbare-
... hol<ler at his registered address (which was .Meerut) as per Art. 132
of the Articles of Association was deemed as payment to the sha!e-
holder in discharge of the company's obligation and a criminal
complaint for the alleged failure to discharge the obligation against E
the company properly lay in the Court of Delhi Magistrate. Coun-
.sel also relied on two important factors (a) unconditional nature
and (b) negotiability of the promissory notes-both requirements of
Art. Ill (3) (a) of the Contract, as destroying the arbitrability of
the claims thereunder, the contention being that if parties agreed
that .the balance. price of.90')\. should he paid by executing "un- F
cond1tlonal negotiable promissory notes" the parties could never
intend to make the claims arising thereunder arbitrable. In support
of this contention Counsel strongly relied on certain observations
of Lord Wilberforce in NOVA (Jersey) Knit Ltd. v. Kammgarn
Spinnerci(3 l to the effect that if bills of exchange were!to contain au
arbitration clause they would not be valid bills, as also on Byles on G
Bills of Exchange : 25th Edn. at p. JO where the above ovservation
i n that case has been digested. Reference was also made to
Albert Jau Van Den Berg's treatise New York Convention of
(1) fJ955] I SCR 185
(2) [1970] 3 SCR 788
(3) [t977] 2 AU. E.R. 463.
H
474 SUPREME COURT REPORTS (1985] 1 S.C.R.

1958-Towards a Uniform Judicial Interpretation' wherein at pp.
A
147,148 the learned author has made a reference to this Nova
(Jersey) case with his own comments on how the Court of Appeal
and the House of Lords have differred on the question whether
there can be said to be an arbitrable dispute in regard to a bill of
exchange, the former holding that there was in the case a dispute as
B to the liability on the bills of exchange, the dispute being whether
or not the bills should be paid having regard to the cross-claim to
be decided in arbitration and the latter holding that there was none
as English law clearly did not allow reliance on unliquidated cross-
claims to set-off a claim on a bill of exchange and on that basis the
House of Lords by majority held that the .action on the bills of
c exchange should not be stayed. Reliance was also placed on three
decisions of Asian High Courts iu Bihari-Diwan Singh v. Jaffe &
SonJ( 1), Dhiraj Lal v. Sir Jacob Behrans & Sons(') and M/s Vasanji Navj
v. K.P.C. SpinnerJ( 8 ) in all .of which more or less the same view has
been taken that when a suit on a negotiable instrument issued in
payment of price of goods sold under a contract and accepted by
D
·the seller is brought the action should not be stayed because of the
arbitration clause contained in the original commercial contract;
in the last case the Madras High Court has observed that even if
the suit was traced to the original contract and the plaint referred
..
to antecedent facts which gave arise to the issue of the cheques by
E the defendant in favour of the plaintiff the arbitration clause could
not come into play as the suit was on dishonoured cheques and
there was no dispute as regards the quality of the goods or quan-
tum of the sale consideration. It is obvious that this last part of
Counsel's submission may hold good only if these two claims are
held to arise solely under the promissory notes and that the notes
are held to be in complete discharge of the obligation under the
Commercial Contract and constitute independent and separate
contracts by themselves "but not otherwise.

As regards the third claim Counsel urged a two-fold conten-
tion. First, that the claim obviously arises in tort out of wrongful
G retention of monies under the first two claims for long 12 years and
Renusagar is being saddled with this liability in its capacity as a
tortfeaser, stake-holder or constructive trustee and hence is not
(I) AIR 1922 Lahore 353
(2) 1933 Allahabad 74
H (3) AIR 1983 Mad. 31
RENUSAGAR co. v. GENERAL ELECTRIC Co. (TulzopurkJr J.) 475
covered by the arbitration clause; and secondly that if the first two
claims are not covered by the arbitration clause this claim would A
also fall outside its purview. It was pointed out that it cannot be
said to be any incidental claim for interest because compensation
is claimed at the market rate of 18 per cent. In support of this
contention Counsel relied upon two deicions, namely; (I) Monro
v. Bognar Urben f!istrict Counci/(1 ) where the Court of Appeal took
the view that where the actfon brought was for damages for fraudu- B
lent mis-representation and referred to matters wholly outside the
powers of the arbitrator with which he could not possibly deal, the
defendants could not get the action stayed because it could not be
said that the dispute was upon or in relation to or in connection
with the contract and (2) G!iell'ardiand v. Shirn Jute Bailing ltd.( 2 )
where the Calcutta High Court has held that where the suit was c
wholly based on tort, then that action was not to be coniidcred to
be in relation to or in connection with a contract merely because it
was shown that had there been ever no contract there would not
have been any cause of action and what the Court had to look into
was wlrnt the substance of the plaint was and not how the claim D
was framed.
-
For the reasons which we shall presently indicate we are un-
able to accept any of the above submissions urged by Counsel for
Renusagar. As regards the first two claims, in the first place it is
not possible to hold that the Commercial Contract does not contain
any obligation to pay interest on the unpaid purchase price after E
June 30, 1967 or that the obligation to pay such interest after that
date is to be found only in the promissory notes. Admittedly,
interest on the purchase price at the agreed rate up to June 30,
1967 was capitalized and included in the principal amount of each
of the instalments represented by the concerned promissory note as F
mentioned in the Schedule of Payments given in Art. III-A 3 (b)
of the Contract and the question is whether the obligation to pay
further interest after that date till payment is provided for only in
the promissory notes or also in the contract. Undoubtedly the
form of the promissory note attached as Exhibit 'B' to the Contract
as also the promissory notes that were actually executed clearly G
contain a recital that Renusagar "Promises to pay to G.E.C. interest
thereon (i.e. on the capitalized principal) from June 30, 1967 semi-
annually at the rate of 6! % per annum on the last day of June and
(I) (1914·15] Reprint At!. E.R. 523.
(2) A.I.R. 1950 Cal. 56~.
/

476 SUPREME COURT REPORTS (198 5] J S.C.R.

A December in each year until paid". But Counsel for G.E.C. has
in our opinion rightly relied upod two provisions in the Contract
which clearly show tint the obligation to pay such interest after
June 30, 1967 till payment has been provided for by the Contract. •

Article III-A 3 (c) (relevant portion) runs thus'
B
I
"The notes shall be prepared substantially in the
form shown in the attached 'Exhibit B' entitled 'Promissory
Note' and shall bear interest, at the rate of 6-i-o/c) per annun1
on the outstanding principal balance, commncing thirty(30
c months after Contract Effective Date ............ "

It is no doubt true that the promissory notes executed by Renusagar
recited the obligation to pay future interest after June 30, 1967
till payment but obviously the promissory notes incorporated such
obligation therein because of the aforesaid provision in Art. III-A
3 (c). The aforesaid sub-clause in the Contract itself says that the
D notes shall bear interest at the rate specified on the outstanding
principal balance after June 30, 1967; in other words it is the Con-
tract which provides for interest boing payable on the outstanding
principal balance after June 30, 1967. Counsel for Renusagar,
however, argued that the contract and aforesaid clause merely
provide for the execution of promissory notes "'hich, it is provided
E shall bear interest after June 30, 1967 and the argument proceeded
further to say that if Renusagar had failed to executive promissory
notes as required (i.e. bearing interest after June 30, 1967) G.E.C.
would not have become entitled to receive or claim interest after
June 30, 1967 but would have had only a right to call upon Renu-
F sagar to execute such pro-notes and or two claim damage for failure
to fulfil contractual obligations. It is impossible to accept this
argument. The question is not what rights G.E.C. would have had
on Renusagar's fC'lilure to execute the promissory notes as required
bnt the question is what the contract provides for. It c:mnot be
disputed that the aforesaid sub-clause in the Contract provides for
not merely the execution of promissory notes but that the promis-
sory notes would also bear interest after June 30, 1967. Further
the very fact that the failure of Renusagar to execute promissory
notes as required,. .. of course as required by the Contract, would
have conferred a right on G.E.C. to call upon Renusagar to exe-
cute such notes also shows that the obligation to pay interest after
H June 30, 1967 till payment has been provided for by the contract.
RENUSAGAR co. v. GEN!:1lAL ELrlCTRJC co. (Tulzapurkar, J.) 477

Article XIV-B, (w hich deals with the topic of taxes and pro- A
posed exemption from income-tax to be obtained by G-E.C.)
(relevant portion) runs thus:·

"Seller intends to apply to the Central Government
of India for exemption from income tax on the interest B
income <including capitalized interest and interest thereon)
received by seller on the principal amounts of the promis-
sory notes. Purchaser will assist Seller in expediting Seller's
application fo r exemption and wiH furnish such info rma-
tion in support ·thereof as may be required by Seller or
the Central Government oflndia ......... "
c
The above provision clearly shows that the partks to the contract
were contemplating to obtain from the Government of India income-
tax exemption on the interest income which G. E .C. was going to
-receive from Renusagai und : r the Contract and the clause indicates
the things each party was required to do in that connection but the D
important aspect of the provision is that the 'interest income', on
which tax exemption was being sought, is said to include capitalized
Jnterest and intf'resl thereon that is to say interest on the amounts of
the promissory notes (which included capitalized interest), which
obviously means further interest on outstanding principal balance
under the notes from June 30, 1967 onwards till payment. In our E
view these provisions which are to b e found in the contract clearly
show that the promissory notes are not sole a nd exclusive repository
of GEC's right to claim and receive future interest on unpaid price
after June 30, 1967 but that the contract itself provides for the
obligation to pay such interest after th at date till p.iyment.
f .

Reference was ma de to the fact that the Bank Guarantee
endorsed on each promissory note is restricted only to the payment
of principal and interes t on the note as per its terms and does not
extend to or cover any residuary payment obligation contained in
the Contract, de hors the promissory-note. But this is as it normally
should be. Since the bank guarantee is in connection with and.
endorsed on the promissory note it woul~ ordinarily refer to the
obligations arising thereunder and not to any obligation arising
under any other document and the question whether the Contract
contains such obligation to pay future interest must depend upon its
contents and not upon what is not to be found in the bank guarantee.
similarly, counsel for Renusa~ar a1s·9 referre<;l to the fayt ihat G.~. C. p
478 SUPREM!t COURT REPORTS [1985] 1 S.C.R.

A h:.ts filed a suit (Suit no. 786/1982) against the UCO Bank io the
Calcutta High Court to recover 2.1 million U,S. Dollars for the cn-
terest as being due un<ler the promisso ry n..Hcs read with the
guarant<.' e. But here again that fact is neither here nor there because
the suit against the UCO Bank has to be on the pronotes ;ead with
the gu.arantee, the Contract not being a document to which UCO
B ~ank is a par.ty. But things will have to .be seen in different perspec-
tive when claims are made by G.E.C. against Renusagar and in that
!t
behalf is the substance of G. E. C.'s pleading (Notice of Intention
to Arbitrate) that will have to be looked into and not how the claims
described therein. True, at one place in the Notice of Intention
to arbitrate the two claims arc-(in fact, only the first claim of 2.1
c million U.S. Dollars is) - said to be " on the promissory notes" but
much cannot be made of that fact because at the commencement of
that Notice the subject-matter ther-:of is stated as: ''Re: Interest
payable under the Contract No. IGE 9584 between GEC and Renu-
sagar" and the substance of the entire pleading, on careful scrutiny,
·n shows how the first two claims have arisen under the Contract and
how under the terms thereof and in the correspondence their
amounts got adjusted and quantified at certain figure s and it is also
clear that the reference to the Contract is not way of any 'antecedent
or historical fact. It is, therefore, clear that the Contract contains •
the obligation to pay future interest from June 30, 1967 onwards till
E payment and that these. two claims have been preferred by G.E.C.
before the Court of Arbitration of J.C.C. as arising not merely "out
of" but under the Contract.

Secondly, the promissory notes, on the terms of the Contract,
F cannot be regarded as amounting to payment in discharge of the
obligation arising under the Contract. It was submitted that since
it is one of the modes of payment indicated in the Contract the exe-
cution of the notes should be held to be payments by way of dis-
charging the obligation under the Contract.' T.he snap answe: to this
submission is that since the Contract also mdicates the opemng of a
G Letter or Credit as yet another mode of payment, the mere fact of
the Letter of Credit having been opened by Renusagar in a Bank in
New York City valid for 18 months will have to be regarded as
actual payment which is· hardly arguable. But the real answer to the
submission is that it is always a question of intention of the parties
whether a negotiable instrument taken on account of a debt ope~ate,s
as an absolute discharge of the debt or not. In Bhashyam & Ad1ga s
H treatise ol) tbe Negotiable ·Instruments Act (14th Edn.) the law on
RENUSAGAR co. v. GENERAL ELECTRIC co. (Tu/zapurkar, J.) 479

·- this aspect has, in our view, been correctly summarised at page 774
thns:
A

"It is always a question of intention of parties whether a
bill or a promissory note or a cheque taken on account of
a debt, operates as an absolute discharge of the debt, or
only as a conditional payment of it. Generally speaking, a B
bill or note can never go in discharge of a debt unless it is
a part of the contract .that it shall be so: for, a mere pro-
mise to pay cannot be regarded as an effective payment.: .

- .-
'\
...... This rule may also be based on the general principle of
law that one simple executory contract does not ordinarily
extinguish another, the presumption in such cases is. that
the bill or promissory note is taken only as a conditional
paymant."
c

In Commissioner of Income-Tax v. Kameshwar Singh of Darbh-
anga (') the Privy Council has enunciated the legal principle very
D
clearly at page ll 5 of the Report thus:

"A debtor who gives his creditor a promissory note for the
sum he owes can in no sense be said to pay his creditor; he
merely gives him a document or voucher of debt possessing
certain legal attributes. So far then as this item of Rs. E
17,34,596 (represented by a promissory note given to the
assessee by his debtor) is concerned the assessee did not
receive payment of any taxable income from his debtor or
indeed any payment at all."

The aforesaid statement of law enunciated by privy CJu,JOi\
has been quoted with approval by the Bombay High Court in Keshav
Mills Co. Ltd. v. Commissioner of Tncome Tad 2 ) It was a case
where chques and hundis were issued in payment of price for goods
sold and delivered and the question was whether such cheques and
hundis amounted to payments resulting in unconditional discharge
of the liability to pay the price, and the Division Bench speaking G

• through Chagla, C.J. observed thus:--

"Now, I should have thought that ordinarily the payment
of a debt by a cheque never results in the discharge of the
(1) A.I.R. 1933 P.C. 108.
(2) A.I.R. 1950 Bom. 1~6,
480 SUPREME COURT REPORTS [ i985] I S.C.R.

A debt. The cheque merely represents an order by the drawer
of the cheque to his banker to pay the amount to the
person named in the cheque, and till that payment is made
the debt is not discharged. Therefore, the sending of the
cheque, as I said before, ordinarily is not an unconditional
discharge of the liability. The same would be the position
B with regard to the hundis. But I can well imagine a case
where there may be an arrangement between a creditor and
a debtor that the receipt of a cheque or a hundi by a
creditor may result in an unconditional discharge of the

-
debt, and in the event of the cheque or hundi not being
c honoured the creditor would have no right to sue on the
original cause of action but only on the cheque or the
hundi. That would be a pure question of fact. The Privy
Council has taken the same view of the law as is to be
found in Commissioner of Income Tax .v Kameshwar Singh."
(supra)
D
It may be stated here that even in the two decisions of this
Court on which Counsel for Renusagar have placed reliance the
aforesaid principle of law has been accepted but all that has happen-
ed is that each case turned on its own facts and special circumstances
on the basis of which this Court held that the parties had intended
F to and agreed to accept and treat the posting of the instruments
(cheques in one case and dividend warrant in the other) as actual
payment in discharge of the original obligation. For instance in
Oga/e Glass Works Ltd. case (supra) the question that arose for
determination on this aspect of the matter was whether the assessee
(seller) conld be said to have received income (sale proceeds) in
F
British Indian within the meaning of sec.4(l)(a) of the Indian
Income-Tax Act, 1922 when the Government oflndia (the purchaser
of goods) had sent the sale proceeds by means of cheques drawn
and posted in Delhi but received by the assessee in Aundhan
Indian State? The answer to the question depended upon whether
G the posting of cheques in Delhi amounted to payment to the assessee
and the Court held that it did by relying upon four or five special
circumstances that obtained in the case. Apart from the fact that •
clause 15 of the Contract itself provided for payment of the sale
proceeds by cheques, the Court noticed (a) that in the bills submit-
ted by him to the Government the assessee has expressly asked for
payment by cheques, (b) that as per the normal course of business
H usage parties intended that remittances should be by post, (c) thta
RENUSAGAR co. v. GENERAL ELECTRIC co. (Tulzapurkar, J.) 481
the assessee had by making a request in that behalf constituted the A
post office his agent, (d) that accordingly the Govt. had sent cheques
in payment of the bills by post, (e) that the assessee had sent formal
stamped receipts only after the receipt of the cheqnes and not in
advance along with the bills submitted by him and (f) very im-
portantly the drawer of the cheques was the Government ofindia
and the drawer was the Reserve Bank of India for whose solvency B
there could be no apprehension at all in the mind of the assessee.
It was in these circumstances that the Court came to the conclusion
that the parties had intended to treat the posting of cheques as pay-
ment. In H.P. Gupta v. Hiralal (supra) the question was whether
the posting of a divdiend warrant cheque by the Company at Delh
-- .l (where its Registered Office was situated) for dispatching it to the c
shareholder at his registered address (which was Meerut) amounted
to payment to the shareholder in discharge of the Company's
obligation to pay the declared dividend and this Court held that it
did in view of sec. 205 (5) of the Indian Companies Act. I 956 and
Art. 132 of the Articles of Association of the Company as both the D
said provisions entitled the Company to pay the dividendieither in
cash or by posting a cheque or warrant at the registered address of
a shareholder. The Court pointed out that Art.132, which con-
sitituted an agreement between the Company and its shareholder
had the effect that if the warrant (cheque) was sent by post at the
latter's registered address that will be equivalent to payment. E
Bearing the aforesaid general principle in mind that a bill or
' a promissory note can never go in the discharge of a debt unless
it is a part of a contract that it shall be so, it will have to be seen
whether the promissory notes executed by Renusagar in this case
were intended to operate as payments by way of absolute discharge F
of the obligation under the Contract or only as conditional pay-
ments. In our view the terms of the Contract, far from showing that
these were payments in discharge of the original obligation, clearly
indicate that the parties had intended that these were to operate
as conditional payments. If Art. III of the Contract, which deals
with the topic 0f Payment of price for the sale of goods and ser-
G
vices, is carefully analysed the following factors emerge very
clearly:
(a) that the pro-notes are not expressed to be payments:
in fact, it is in terms stated that the "total contract base
price shall be paid by purchaser in lawful money of. the
USA" (Art. III-A) and surely promissory notes are not
")awful money". of USA:
"
482 SUPREME COURT REPORTS [1985] 1 S.C.R,

A (b) that because the Contract so provides even the pro-notes
also recite that the principal and interest thereunder are
"paya~le in lawful money of the USA";

(c) that Art. lJI-A (3) which deals with pro-notes provides
for payment of the remaining 90% of the price "in accor-
B dance with the following Schedule 'f Payments" and
expressly states that "the obligation to make such pay·
r.1ents is to be evidenced by four series of purchaser's
•
unconditional negotiable promissory notes", which clear-
ly shows that the pro-notes are not payments but are
intended merely to be the evidence of the obligation to
c pay the price;
•
(d) that though stated to be "unconditional and negotiable"
(perhaps so between the drawer and subsequent assignees
in case of negotiation), as between the seller and the pur·
chaser these have been made subject to several conditions
D such as-(!) the amounts thereof were payable only on the
assumption that deliveries of items of equipment were
completed within 15 months of Contract Effective Date
and interest at the rate of 6£% was to become 6% on
receipt of income-tax exemption (Art. III-A(3) (b),

E (ii) these were to lie in Escrow Arrangement to be released to
the seller syncronising with the stated progress of supply
of goods according to certain formulae (Art. III-DJ.
(iii) these were to be replaced by fresh Notes depending on
receipt of income-tax exemption (Art.III-A(3)(f) or price
F modification (Art.IIl-D): (iv) each one-contains a default
clause saying "upon default in the prompt and full pay-
ment the principal or of the interest on this Note when
due, all of the notes in each and every series, together
with interest to the date of payment, shall immediately
become due and be payable and the option and demand
G of the holder thereof."
Having regard to the aforesaid factors that emerge from the
various terms specified above it is very clear that the execution of '
the promissory notes was not intended to nor did it amount to pay-
ment by way of discharging the obligation under the contract but
the notes were clearly intended to operate as conditional payments.
H Thirdly the very factors and circumstances enumerated a1?ov~
ll.ENUSAGAR co. v. GENEllAL ELECTllIC co. (Tu/zapurkar, J.) 48~

in connection with the promissory notes and particulary, the fact A
that these notes were as between the seller and the purchaser subject
to several conditions.leading to variation and adjustment and replace-
ment and the default clause contained in each, clearly indicate that
these were not intended to constitute or separate contracts by them-
selves but that they were a part and parcel of one integrated transac-
tion embodied in the contract; in fact the aspects mentioned in (d) B
above clearly show that the promissory notes were and are meant to
be governed at all times by various other terms of the Contract and
could be modified and substituted under given conditions as set out
in the Contract. Hence it is impossible to ac.cede to the proposition
that a dispute of nonpayment of interest on the instalments whether
regular or delinquent-is not a dispute "relating to the Contract." In
fact, as stated earlier, both the claims-2.1 million U.S. dollars and
U.S. $7,84,151.84-arise "under the Contract" and have been pre-
ferred by G.E.C. before the Court of Arbitration of l.C.C. expressly
on that basis and not under the promissory notes. In view of this
conclusion of ours it is unnecessary to deal with the further submis-
sion of Counsel for Renusagar based on the so-called factors of D
unconditional nature and negotiability of the promissory notes as
destroying the arbitrability of the claims thereunder as also the case
law relied npon in support thereof. Similarly this conclusion of ours
also makes it unnecessary for us to deal with the alternative submis-
sion made by counsel for G.E.C. that these claims would still fall
' within the wide expressions occurring in the Contract even on the E
assumption that the promissory notes are severable from the Cont-
ract, that the obligation arising thereunder is different from the one
under the Contract and that these notes are in payment of the
obligation to pay the price under the Contract
As regards the third claim of compensatory damages it is true F
that Renusagar is being saddled with this liability as tort-feaser, a
stake-holder. and/or a constructive trustee, but, in our view, that
aspect by itself 'will not justify a conclusion that the same is not
covered by the arbitration clause because the question is not whether
the claim lies in tort but the question is whether even though it has
lain in tort it "arises out of" or is "related to" the Contract, that G
is to say, whether it arises out of the terms of the Contract or is
consequential upon any breach thereof. As explained earlier, this
claim is based on and is consequential upon and by way of corollary
to the non-payment of the two detained amounts by Renusagar to
G.E.C. in breach of the terms of the Contract. In other words, it is H
484 SUPR~ME COURT REPORTS (1985] 1 S.C.R

A clear that before adjudicating upon this claim the adjudicating
authority will have first necessarily to adjudicate upon first two
claims preferred by G.E.C. and only if it is found that G.E.C. is
entitled to receive that first two amounts which ought to have been
paid by Renusagar under the terms of the Contract but which
Renusagar had failed to pay that this third claim could, if at all, be
il allowed to G.E.C. In the real sense, therefore, this claim is directly,
closely and inextricably connected with the terms and conditions of
the Contract, the payments to be made thereunder and the breaches
thereof and as such will have to be regarded as aclaim :'arising out
of" or "related to" the Contract. As we shall point out presently
Court in one of its decisions has laid down the test for determining
c the question in such cases and the test is whether recourse to the
contract, by which both the parties are bound, would be necessary
for the purpose of determining whether the claim in question was
justified or otherwise and this test, as indicated above, is clearly
satisfied with regard to the third claim in the instant case.

0 We may, at this stage, refer to a passage in Russel on Arbitra-
tion and a few decided cases which fortify our aforesaid conclusion.
In Russel on Arbitration (20th Edn.) the following statement of law
occurs at page 90:

"Claims in tort may be so intimately connected with a con-
tract that a clause of appropriate width designed primarily
to make contractual disputes arbitrable will nevertheless
render such claims in tort arbitrable as well."
In Woo/fv. Collis Removal Service (1) the defendants had con-
tracted to remove plaintiff's furniture and effects from London to
their store in Marlow and there safely to keep and take care of
them, but, according to the plaintiff, the defendants had, in breach
of the Contract, removed the goods to a different destination where
some were lost and others damaged. Alternatively the plaintiff
claimed that the goods were Jost and damaged owing to the negli-
rence of the defendants in using an unsuitable place in which to store
them and guarding them inefficiently. The clause providing for
arbitration ran: "If the customer makes any claims upon or couriter-
G claim to any claim made by the contractors" the same shall be re -
ferred to the decision of the two arbitrators. The question was whe-
ther the claim for damages was covered by this clause. The Court

H (I) (1947] 2 All. E.R. 260
RENUSAGAR co. v. GENERAL ELECTRIC co. (Tulzapurkar, J.) 485
of Appeal held that even if the claim in negligence was a claim
in tort and not under the contract yet there was a sufficient close
connection between that claim and the transaction to bring the claim
within the arbitration clause. This authority clearly shows that even
though a claim may not directly arise under the contract which con-
tains an arbitration clause, if there was sufficient close connection
between that claim and the transaction under the contract it will be B
covered by the arbitration clause.
In Astra Vencedor Compania Naviera SA of Panama v. Maba ..

... , naft G m b H(1) the arbitration clause contained in a Contract of
charterparty ran: "any dispute arising during the execution of this
charterparty" shall be settled by two arbitrators, one to be appointed
by the Owners and the other by the charterers. The relevant char c
terers ordered the vessel to a Dutch port not named in the bill o-
lading whereby satisfactory bills of lading were not available in time
and disputes arose as to unloading. By action of the relevant char-
terers the vessel was arrested and released on a bank guarantee'
Later, under a charter quite unconnected with the relevant charterers
the vessel happend to be again in a Dutch port and was arrested D
again as a result of disputes as to the satisfactory nature of the ori-
ginal bank guarantee. The owners arbitrated a claim for damages i 1
respect of each of the two arrests of the vessel. The charterers
argued that these were claims in tort and outside the arbitrator's
jurisdiction. The Court held that arbitrator had jurisdiction (1) over
E
the first arrest as .it was closely connected with the dispute under the
contract, and was indeed a direct consequence of a claim for damage
under the contract, and (2) over the second arrest as it was part and
parcel of the original arrest.
The decision of Sellers, J. in Government of Gibralter v.
Kenney and Another (supra) has already been referred by us in the F
earlier part of our judgment in the context of the distinction made
between matters "arising out of" and "under the agreement'' and
the learned Judge's view that the former expression is wider than
the latter but that decision is relevant to the question which is now
L under consideration. In that case disputes arose concerning the
first defendant's remuneration receivable from the plaintiff under G
a contract for services and one of the claims put forward by the
first defendant was for a sum of money on a quantum meruit basis
for services rendered, it being alleged that the agreement had cea-
sed to have any application to those services. The disputes were
(I) [1971] 2 All. E.R. 1301
ff
486 stlPRilMli COt!R T REP OR TS t\985] 1 S.C.R.

A referred to the arbitration of second defindant under a clause which
was very wide and covered " any dispute or difference which shall
arise or occur between the parties hereto in relation to anything or
matter arising out of or under this agreement". A question arose
as to whether a claim based on quantum meruit would fall within
B the arbitration clause and Sellers, J. held that it did observating as
under:

"It is true that a quantum meruit is a quasi-contract
and arises, in a sense, on an implied contract and not on
any express agreement, but, in my view, in the circun1-
c stances of this case (although it may not be in all cases) the
quantum meruit is an incident which arises out of the con-
tract. It is not a remedy for breach or arising on frustra-
tion, but it is an incident, in my view, which does arise as a
con.J·equence of rhe contract or 'arising out of' it. One has
D only to look at the pleadings, at the points of claim, and
to visualise what is involved in the arbitration to see the
close association between the written contract and the
claim advanced in this way on a quantnm meruit."

In Alliance Jute Mills Co. Ltd. v. Lal Chand Dharanchand and
Another(') disputes between the parties to a commercial contract were
E
arbitrable under the bye-laws of the East India Jute & Hessian
Exchange Association and the relevant bye-law ran thus: "All •
matters, questions, disputes, difference and/or claims arising out of
and/or concerning and/or in connection with and/or in consequence
of or relating to this contract shall be referred to arbitration ......... "
Under the commercial Contract Respondent No. I had sold,
through a broker, certain quantities of fibre to the appellant-mill
and after effecting delivery of the goods Respondent No. 1 had
submitted bills to the appellant-mill again through the broker ; the
appellant-mill, however, claimed reduction in price on account of
shortage in weight and submitted claims in that respect. Since the
price was not paid, Respondent No. I referred the claim to the arbi-
G tration of Bengal Chamber of Commerce and Industry. The appel-
lant-mill informed the Chamber of Commerce and Industry that it
had filed a suit upon the whole of the subject matter of the refe-
rence and served a Notice under s. 35 of the Arbitration Act. In
suit so filed against Respondent No. 1 and the broker apart from

H (I) AIR 1978 Cal. 19
RENUSAGA'.ll co. v. GENERAL ELECTRIC co. (Tulzapurkar, J.) 487
the declaration sought that the broker had no claims against the
A
appellant-mill in respect of the Contract or in respect of the bills
submitted by the broker for the price of goods sold and delivered
the appellant-mill had also claimed a decree for Rs. 50,000 ls
damages for the alleged libel published by respondent No. l and
the broker. In an application for stay of the suit under s. 34 of
the Arbitration Act. 1940, one of the <:[uestions raised was whether B
the arbitration clause was wide enough to include the claim for da-
mages for the alleged libel. The High Court. held that the claim in
damages for defamation arose "out of" and "in connection with"
the non-payment of the bills of respondent No. 1 and in going in-
to the question of tort the Court would necessarily have to go into c
the terms and conditions of the Contract relating to payment and
that the claim in tort was directly and inextricably connected with
the terms and conditions of the Contract· and as such came within
the scope of the arbitration clause which was wide enough to cover
the same. In this view of the matter Court stayed the suit under s.34
of the Arbitration Act. D

Lastly, we would refer to the decision of this Court in Union of
fndia v. Salween Timber Construction (India) & Ors.(1! where the Court
has laid down the test for determining the question whether the
arbitrators wou Id have jurisdiction to adjudicate upon a claim made
by one of the parties to a Contract, though not strictly arising
"under" it. Jn that case a dispute arose between the appellant
' (Union of India) and the respondent rega1ding the supply of timber
made by the respondent under a contract between the parties. One
of the items in dispute was a claim by the respondent that there was
an excess supply of timber to cover up possible rejection, which F
should have been returned by the appellant with compensation for
deterioration, or that payment should be made for it as the market
rate. The appellant contended that the terms of contract did not
require the respondent to tender for inspection any quantity in excess
of the contracted quantity, that the claim was in detinue relating to
an involuntary bailment and not in relation to anything done in the
• performance, implementation or execution of the contract and
therefore, it was not a dispute arising out of the contractor i~
G
connection with the contract. Arbitration Clause in the contract
covered any question or dispute arising under the contract or 'in
connection with the Contract'. On the question whether the arbitra-
tors had jurisdiction to adjudicate upon that claim this Court,

(I) [1969] 2 S.C.R. 224
H
488 SUPREME COURT REPORTS (1985] l S.C.R,

A relying upon its earlier decision in Ruby General Ins11rm1ce Co. Ltd. v.
Peary Lal Kumar( 1) held, that the test for determining the question is
whether recourse to the contract by which both the parties are
bound, was necessary for the purpose of determining whether the
claim of the respondent was justified or otherwise and since it was
necessary in the case to have recourse to the te.ms of the contract
D for the purpose of deciding the matter in dispute the matter was
within the scope of the arbitration clause and the arbitrators had
jurisdiction to decide it.

As stated earlier since this third claim for compensatory
damages is directly, closely and inextricably connected with the terms
and conditions of the Contract, the payments to be made thereunder
c arid the breaches thereof and since for adjudication thereof recourse
to the Contract would be necessary it will have to be held that it is a
claim "arising out of" and in any event "related to" the Contract.

As regards the two decisions, Monro v. Bognar Urban District
Council (supra) and Ghewarchand Rampuria v. Shiva Jute Bailing Ltd.
D (supra) relied upon by Counsel for Renusagar we would like to point
out that both are distinguishable and each turned on its own facts.
In the former case the contractor had filed a suit to recover damages
for the fraudulent misrepresentation as also to have the contract
declared void on the ground that his consent thereto had been ob-
tained by fraudulent misrepresentation and in effect the Court of
Appeal held that the alleged fraudulent misrepresentation was not
a dispute "upon or in relation to or in connection with the Contract
and, therefore, the suit was not liable to stayed nor was the dispute
liable to be referred to arbitration. In the latter case the suit was
based wholly on tort and tort alone and the action complained of
f was totally unconnected with the Contract; the High Court actually
recorded a finding that the cause of action in the suit had no connec-
' tion direct or indirect with the Contract itself and the reference to
the Contract was only a link in the story to show how the goods came
to be in the possession of the defendants and the claim was not
based in any way on or related to the contract itself. In the final
G
analysis the question as to whether a claim based on tort is a claim
dr, hors the contract which contains the arbitration clause or is dir-
ectly or inextricably connected with the contract has to be decided on

H
the facts of each case and the language used in the arbitration clause

(I} [1952] S.C.R. SOJ.
'l
I
ltENtJSAGAR co. v. GENERAL ELECTRIC co. (Tulzapurkar, J.) 489

Having regard to the aforesaid discussion we are clearly of the A
view that all the three claims referred by G.E.C. to the Court of
Arbitration of l.C.C. do "arise out of" and are "related to" the
Commercial Contract (in fact the first two claims arise "under the
Contract") and squarely fall within the widely worded arbitration
clause being Art. XVII contained in the Commercial Contract. It is
also clear that the arbitration clause embraces even the question of its B
effect (scope), that is to say, it embraces the issue of the arbitra-
bility of the three claims. Questions whether in law, namely, the
law of the Forum, the arbitrators will have jurisdiction and power to
decide the arbitrability of the claims or not and whether Renusagar's
suit is liable to be stayed or not will be considered by us next but at c
this stage we are categorically negativing the cornentions of Counsel
for Renusagar that on merits the three claims are beyond the scope
or purview of the arbitration clause or that the arbitration clause on
its own language does not embrace the issue of arbitrability of the
three claims.
D
We shall now deal with the principal legal contention raised in
support of these appeals by Counsel for Renusagar that under s. 3
• of the Foreign Awards Act, 1961, having regard to its scope, a suit
in the nature of a petition under s. 33 of the Arbitration Act, 1940
can never be stayed, that G.E.C.'s Arbitration Petition (No. 96 of
, 1982) in that behalf is totally mis-conceived and that no case has E
been made out for staying Renusagar's suit which is in the uftture of
a petition under s. 33 of the Arbitration Act. In this behalf sub-
missions of Counsel may be analysed thus :

(a) That two decisions- one of the Calcutta High Court in
Balabux Agarwal/o's case (supra) and the other of this F
Court in Gaya Electric Supply Co's case('), !Jave settled the
legal position under Arbitration Act 1940 that a Court
acting under s. 34 is a Court of lin1ited jurjsdiction per·
forming a limited function and that a petition under s. 33
.... (which raises issues regarding the existence, validity or
G
effect of an arbitration agreement) cannot be stayed by
invoking s. 34 of that Act, unless, there be a fresh arbitra-
tion agreement to refer those very issues in regard to the
previous arbitration agreement and, therefore, it should
similarly be held that s. 3 of the Foreign Awards Act,
(which is similar to s. 34 of the Arbitration Act) cannot be

(I) [1953] S.C.R. 572 579, 580.
H
490 SUPl!.BMB COURT REPORTS (1985] J S.C.R.
A invoked to stay a suit which is in the nature of a s. ~3
petition and Counsel pointed out that Renusagar's suit is
precisely a suit of that nature, wherein the effect (scope) of
the arbitration clause contained in the commercial contract
only has been put in issue and no relief on the merits of
these claims is sought.
B
(b) That Renusagar's suit is not a suit "in respect of any
matter agreed to be referred to arbitration" as required by
s. 3 of the Foreign Awards Act and, therefore, the stay
sought by G.E.C. should be refused ; in other words,
Counsel urged that the phrase "in respect of my matter
c agreed to be referred arbitration" occurring in s. 3 should
be construed to cover only disputes or claims on merits
referred to the arbitrators and not issues as to the existenc:,
validity or effect of the arbitration agreed, (particularly its
scope that is the atbitrability of the claims) and for placing
D such narrow construction on the relevant phrase occuring
in s. 3 Counsel mainly relied on a decision of this Court in
Shiva Jute Baling Ltd. v. Hindley Co.(1) where this Court,
while construing s. 35 in the context of s. 33 and s. 34 of
the Arbitration Act, has on the facts in the case held that
•
there could be no identity of the subject matter under
E reference to the arbitrator and the subject matter of a s. 33
petition, that is to say, the issues and prayers that from
the basis of an application under s. 33 could not be subject-
•
matter of the reference to the arbitrators ; Counsel also
relied upon three more decisions of this Court in Khardah
Company's case (supra), Waverly Jute Mills' case (supra)
F and M/s. R.N. Ganekar & Co' s('J case where, according to
Counsel, observations supporting the above view have been
made.

(c) That even of the assumption that arbitrability of the three
claims is factually covered by the wide language of the
G arbitration clause in question here and that the suit is 'in
respect of a matter agreed to be referred to the arbitra-
tion', in law, that is to say, under the law of the Forum
(being the Indian Law in the instant case) the issue of
arbitrability of the claims raised in the suit cannot be
finally determined by the arbitrators but must rest with the

(I) [ 1960] I S.C.R. S09.
H (2) [19UJ 1 s.c.a. 309 at 313-J14.
RBNUSAGAR co. v. GENERAL ELECTRIC co. (Ta/zapurkar, J.) 491

Court and, therefore, Renusagar's suit cannot be stayed A
under s. 3 ; in this behalf Counsel urged that both English
Law as well as Indian Law is the same (the latter being the
law of Forum here) and does not allow questions of arbi-
trators' own jurisdiction to rest finally with the arbitrators
and in support reliance was placed on a number of deci-
sions English, American and Indian iparticularly decision
B
in Attorney-General for Manitoba v. Kally & Ors.(1), Da/mia
Dairy(') case, Backer Auto Radio(') case, MuRicipa/ Board
v. Eastern U.P. Electric Supply Co. Ltd & Ors('), M/s.
Jagan Nath Phoo/ Chand v. Union of India & Ors.,(6)
R. Prince & Co. v. Governor Genera/ in Council('), Va/labh c
Pitti v. Narsingdas(') as well as certain passages in Russell
on Arbitration 20th Edn. at pages 91-92 and II 1-112 and
Albert Jan Van Dan Berg's Treatise on New York Con-
vention at pages 311-312.

(d) That a stay, if granted as sought by G.E.C., would render D
Renusagar's suit dead for all practical purposes, and, there-
fore, no such relief should be granted which will have the
effect of finally determining the suit merely on a prima
facie view or a pro tanto finding on the issue of arbitrability
• of the claims and in support reliance was placed on Strauss
& Co's.(') case. E

We shall examine each one of these submissions put forward to
strengthen the main legal contention urged in the support of these
appeals presently.
p
At the out set we would like to observe that the answer to the
question whether Renusagar's suit which is_ in the nature of a peti-
tion under s. 33 of the Arbitration Act could be stayed under s. 3 of
the Foreign Awards Act must necessarily depend upon a correct
construction of the said s. 3 and it is obvious that the provisions of
G
(,) [1922] I A.C. 268 at 275.
(2) [1978] 2 Lloids L.R. 223 at 292-293.
(3) [1978] 585 Federal Reporter 2 d Series 39
(4) AIR 1958 All. 506 at 510.
(5) AIR 1982 Delhi 93 at 97 and 98.
(6) AIR 1955 Pb. 240 at 242.
( 7) 65 Born. L.R. 20.
(8) AIR 1921 AU. 27?.

"
492 SUREME COURT REPORTS (1985] J S.C.R.

A that section will have to be construed by keeping in mind the objective
sought to be achieved by that Act and its scheme and not on the
basis of similar or analogous provisions that are to be found in the
Arbitration Act, 1940 or the manner in which such similar or analo-
gous provisions have been construed by our Courts. Tht Statement
of Objects and R~asons shows that 1he Act seeks lo achieve speedy
B settlement of disputes arising from international trade through
arbitration. The Act is a successor ta the Arbitration (Protocal ·&
Convention) Act, 1937. The earlier Act was intended to effectuate
the purposes of Geneva Convention of 1927 ; it was, however, felt
that the Geneva Convention hampered the speedy settlement of dis-
putes through arbitration and hence no longer met the requirements
c ofthe international trade due to certain deffects and, therefore, in
order to remedy, inter-alia, those defects, a craft Convention was
prepared by the International Chamber of Commerce, which was
considered by the United Nations Economic and Social Council in
consultation with the Governments of the various countries and non-
governmental organisations and finally a new International Conven-
D
tion on tbe Recognition and Enforcement of Arbitral Awards was
adopted at New York on 10th June, 1958. The Convention was duly
ratified by the Government of India and was deposited with the
Secretary-General of the United Nations on 13th July, 1960. The
present Act was enacted, as its long title indicates, to give effect to
'
E the said New York International Convention on the Recognition and
Enforcement of Foreign Arbitral Awards to which India is a party.
Article JI of the Convention provides for recognition by Contracting
States of agreements, including arbitral clauses in writing, by which
the parties to the agreement undertake to submit to arbitration all or
any differences which have arisen or which may arise between them
F in respect of defined legal relationship, whether contractual or not,
concerning a subject-matter capable of settlement by arbitration and
s. 2 of the Act defines the expression "foreign award" accordingly,
i.e. closely following the language of Article II of the Convention. It
is obvious that since the Act is calculated and designed to subserve
the canse of facilitating international trade and promotion thereof by
G
providing for speedy settlement of disputes arising in such trade
through arbitration, any expression or phrase occurring therein
should receive, consisting with its literal and grammatical sense, a
liberal construction. Moreover, an examination of the relevant pro-
visions of this Act and the Arbitration Act, 1940 will show that the
schemes of the two Acts are not identical and as will be pointed out
at the appropriate stage there are various differences which have a
tt materia I bearin$ on the question under consideration and as such
RENUSAGAR co. v. GENERAL ELECTRIC co. (Tulzapurkar, J.) 493

decisions on similar or analogous provisions contained in the Arbitra- A
tion Act may not help in deciding the issue arising under the Foreign
Awards Act because just as the Arbitration Act, 1940 is a consolidat-
ing enactment governing.all domestic awards the Foreign Awards Act
constitutes a complete code by itself providing for all possible contin-
gencies in relation to Foreign awards made pursuant to agreements
to which Article II of the Convention applies. With these preliminary
observations we now turn to the question of pro,ier construction of B
• s. 3 of the Foreign Awards Act.

Section 3 of the Foreign Awards Act, 1961 as amended by Act
47 of 1973, (omitting unnecessary words) reads as under :-
c
"3. Stay of proceedings in respect of matters to be referred 01
arbitration.-Notwitbstanding anything contained in the
Arbitration Act, 1940, or in the Code of Civil Procedure, 1908,
if any party to an agreement to which Article II of the Conven-
tion set forth in the Schedule applies, commences any legal
proceedings in any court against any other party to the agree- D
ment, in respect of any matter agreed to be referred to arbitra-
tion in such agreement, any party to such legal proceedings
may, at any time after appearance and before filing a written
statement or taking any other step in the proceedings, apply to
the Court to stay the proceedings and the Court, unless satisfied
E
that the agreement is null and void, inoperative or incapable of
being performed or that there is not, in fact, any dispute bet-
ween the parties with regard to the matter agreed to be referred,
shall make an order staying the proceedings".

It may be stated that prior to its amendment by Act 47 of 1973 the F
words in the old section 3 were : "If any party to a submission made
in pursuance of an agreement" which were construed by this Court in
V/O Tractoroexport( 1), case as prescribing a requirement that there
must be an actual reference made to the arbitrators before any party
to the arbitration agreement could invoke the section and Parliament
G
immediately stepped in and amended the section by substituting in
their place the words : "if any party to an ·agreement" thereby
facilitating the stay of legal proceedings even before any actual re-
ference is made and compelling speedy settlement of disputes through
agreed arbitration. On a plain reading of the section as it now stands

(I) 11970] 3 S.C.R. 53,
494 SUPREME COURT REPORTS [1985] I s.G:'R.

A two things become very clear. Jn the first place the section opens
a non-obstante clause giving overriding effect to the provision con-
tained therein and making it prevail over anything to the contrary
contained in the Arbitration Act, 1940 or the Code of Civil Proce-
dure, 1908. Secondly, unlike s. 34 of the Arbitration Act which
confers a discretion upon the Court, the section uses the mandatory
II
expression "shall" and makes it obligator} upon the Court to pass I
the order staying the legal proceedings commenced by a party to the
agreement if the conditions specified therein are fulfilled. The condi- •
tions required to be fulfilled for invoking sec. 3 are :

c (i) there must be an agreement to which Article II of the
Convention set forth in the Schedule applies. (It is not
disputed that this is so in the instant case) ;
•

(ii) a party to that agreement must commence legal proceed-
D ings against another party thereto. (It is again not disputed
that Renusagar and G.E.C. are the two parties to the arbi-
tration agreement and that Renusagar has commenced legal
proceedings against G.E.C. by filing suit No. 832 of 1982;

(iii) the legal proceedings must be "in respect of any matter
E agreed to be referred to arbitration" in such agreement.
(The question whether this condition is fulfilled here needs
to be decided) ;

(iv) the application for stay must be made before filing the
written statement or taking any other step in the legal
F proceedings. (Admittedly this condition is fulfilled) ;

(v) the Court has to be satisfied that .the agreement is valid,
operative and capable of being performed ; this relates to
the satisfaction about the 'existence and validity' of the
arbitration agreement. (In the instant case these questions
G
do not arise) ;

(vi) the Court has to be satisfied that there are disputes between
the parties with regard to the matters agreed to be referred;
this relates to effect (scope) of the arbitration agreement !"'

touching the issue of arbitrability of the claims. (It will
have to be dealt with while considering the satisfactiop Qf
ff ~\mdition (iii) above).
I

RENUSAGAR co. v. GENERAL ELECTRIC co. ( Tulza/wln J.) 495
As stated above Counsel for Renusagar have urged that conditions A
(iii) and (vi) ard not satisfied and hence stay of Renusagar's suit ought
to be refused while according to Counsel for G.E.C. all the condi-
tions including these two have been fulfilled and it is obligatory upon
the Court to stay the suit.

"B
Before dealing with the question whether conditions (iii) and
(vi) are satisfied in this case or not we would briefly indicate how the
~schemes of the two Acts (Foreign Awards Act and Arbitration Act)
materially differ on several aspects having a bearing on the points at
issue. An examination of ss. 3, 4 and 7 of the Foreign Awards Act
-1 in juxta-position with ss. 32, 33 and 34 of the Arbitration Act brings
out these differences. Under s. 32 of the Arbitration Acts suits to
challenge the existence or validity of an arbitration agreement or
award as also suits to have the effect (scope) of an arbitration agree-
ment determined are barred and such questions can be raised only by
an application under s. 3j of the Act whereas under the Foreign
Awards Act there is no provision similar or akin toss. 32 and 33
(and that is why a suit of the nature filed by Renusagar qua the D
arbitration agreement covered by the Convention is maintainable)
I
but by virtue of ss. 3 and 7 the same purpose is served though by
different procedure. Sections 3 and 7 read together disclose a scheme
that so far as questions of existence, validity and effect (scope) of the
arbitration agreement are concerned, the determination thereof by
the arbitrators is also subject to the decision of the Court and this E
decision of the Court can be had either before the arbitration
proceedings commence or during their pendency, if the matter is
decided by the Court in a s. 3 petition, as in the present case, or can
be had under s. 7 after the award is filed in the Court and is sought
to be enforced under s. 6. True, section 4(2) declares that a foreign
award shall be treated as binding 'for all purposes' on persons as F
between whom it is is made but that is subject to s. 7 whereunder
enforcibllity thereof is made dependent upon satisfaction of certain
conditions specified therein : for example, under s. 7(l)(a)(iii) one of
such conditions for enforcibility is that that the a.ward should not
deal with questions not referred nor should it contain decisions on G
matters beyond the scope of the agreement. In effect, s. 3 of the
Foreign Awards Act so to say combines in its own ambit both ss. 33
and· 34 of the Arbitration Act ; in other words, questions regarding
the existence, validity or effect (scope) of the arbitration agreement
which can be decided under s. 33 of the Arbitration Act are required
to be decided under s. 3 of the Foreign Awards Acts before a stay of.
,egal proceedings contemplated therein could be granted and the H
\

i-

496 SUPREME COURT REPORTS (1985] l S.C.R.

A right to have legal proceedings stayed:contained ins. 34 of the Arbitra·
tion Act is also to be found in the same s. 3. Further the Foreign
Awards Act has also taken cognizence of the possibility that there
may not be s. 3 petitton at all the matter being directly proceeded
before the arbitrators and the possibility of the arbitrators giving a
decision on an issue not within their competence or jurisdiction and
B such cases s. 7 contains a safe-guard which prevents any such award
from being made enforceable. Such being the scheme under the
Foreign Awards Act we would reiterate our view that decisions o\
our Courts on similar or analogous provisions contained in the

c
Arbitration Act would not be of any help to decide questions arising
under the Foreign Awards Act. For instance, the view taken by the
Calcutta High Court in Balabux Agrawalla's case (supra) and by this
Court in Gaya Electric Supply Co.s case (supra) lhat a Court acting
•
under s. 34 of the Arbitration Act is a Court of limited jurisdiction
performing a limited function and that a petition under s. 33 cannot
be stayed by invoking s. 34 of that Act will be of no avail whatever in
D face of the express provisions contained under s. 3 of the Foreign
Awards Act which section, as indicated earlier, combines within its
own ambit both sections 33 and 34 of the Arbitration Act and those
questions have to be decided by the Court before granting stay.
Similarly, the broad principle that an arbitrator has no power to
'
determine questions of his own jurisdiction (which include questions
E regardifig" the existence, validity and effect i.e. scope of the arbitra-
tion agreement) and that neither English Law nor Indian Law allows
these questions to rest with the arbitrator (for which Counsel for
•
Renusagar have been contending and we shall deal with it later)
wouH be hardly applicable to any foreign award made under the Act,
F if the scheme of the Act emerging from a combined reading of ss. 3 '
and 7 clearly shows that so far as the questions of existence, validity
and effect (scope) of the arbitration agreement are concerned, the
determination thereof by the arbitrators is subject to the decision of
the Court and that this decision of the Court can be had under s. 7
even after the award is made and filed in the Court but before it is
made enforceable ; s. (7)(a)(i) and (iii) show that the award can be
G challenged on these grounds which implies that the arbitrators have '
decided those questions while making their award.

Turning now to the question whether in this case conditions (iii)
and (vi) indicated above are satisfied or not we would like to observe
that the two conditions are inter-related and in substance bear upon
the same aspects and, therefore, could be dealt with together. The
II main ~uestion is whQthQr Renusa~1ir's suit can bQ Sllid t\) bQ "respect
RENUSAGAR co. v. GENERAL ELECTRIC co. (Thlzapurkar, J.) 497

of any matter agreed to be referred to arbitration" ? On this, Counsel A
for Renusagar put forward a two-pronged submission. Initially it
was urged that the arbitration clause in the Contract does not include
within its scope the issue of arbitrability of the three claims and so
the suit is not liable to be stayed but we have already negatived this
part of the submission by holding that the language of the arl:iitration
clause is wide enough to embrace the issue of the arbitrability of the B
claims. Now the submission is that the phrase "in respect of any
matter agreed to he referred to the arbitration" occurring io s. 3
should be construed as covering only the disputes or claims on merits
which have been referred to the aubitrators and since Renusagar's
suit merely raises the issue of arbitrability of those claims the suit c
cannot be said to be in respect of any matter agreed to be referred to
arbitration; in other words, the submission is that the relevant phrase
in s. 3 should be given a narrow construction. In the first place there
is nothing in the section which warrants the placing of such narrow
construction on the relevant phrase. What matters are agreed to be
referred to arbi•ration will depend upon what language is employed D
by the parties to the arbitration agreement and as we have indicated
earlier there is nothing in law or equity which prevents the parties
from referring even the questions of ·existence, validity or effects
(scope) of the arbitration agreement itself to the arbitrators (in fact.
Lord Porter's observations quoted ·earlier from Heymen v. Darwins
Ltd. and Das J's view in Balabux Agarwala's case show that the E
•• parties can do it.) Secondly, the scheme of ss. 3 and 7 of the Foreign
Aw.ards Act, as' discussed earlier. clearly suggests that the relevant
phrase would include even questions of existence, validity and effect
(scope) of the arbitration agreement .. It is, therefore, not possible to
place a narrow construction on that phrase in s. 3 as suggested by
F
Counsel for Renusagar. The decision of this Court in Shiva Jute
Bailing Ltd. case (•upra) and the supporting observations in three
other decisions of this Court, namely, Kharda Co's case, Waverly Jute
Mills case and M/s. R.N. Ganekar & Co's case (all supra) on which
reliance was placed by Counsel for Renusagar are of no avail for two
reasons - (i) they deal with a position arising under ss. 33, 34 and
•· 35 of the Arbitration Act and the manner in which certain phrases G
occurring therein are construed would offer no guidance in construing
the relevant phrase occurring in s. 3 of the Foreign Awards Act
whkh will have to be construed on its own language and in the light
.of:the scheme of the Foreign Awards Act and (ii) though the ratio in
. Shiva Jute Bailing Ltd. case has been expressed rather broadly it
•cannot be forgotten that in each one of the four cases the question
· pertai!l\'Q 10 ei!tier the existence or the validity of the arbitration H
498 SUPRFME COURT REPORTS [1985) I S.C.R.

A agreement and not the effeet (scope) thereof, (i.e. not the issue of the
arbitrability of the claims) and, therefore, the ratio in that case as
also the supporting observations made in the other three cases will
have to be understood as being applicable to the actual issue that
arose on the facts of each on of them. We therefore, conclude that
both the conditions (iii) and (vi) are satisfied in the instant case.
B
•
The next contention-and this has been, if one may so, the
crux of the entire submission of Counsel for Renusagar in the case-
is that arbitrability of the three claims falls within the wide ambit of
the arbitration clause and that therefore Renusagar's suit is in respect
of"- matter agreed to b~ referred to the arbitration within the meaning f
c of sec. 3, in law, shat is to say under the law of the Forum (being the
Indian law in the instant case) the issue of arbitrability of claims
cannot be finally determined by the arbitrators but must rest with the
Court and therefore Renusagar's suit cannot be stayed under that
section. According to Counsel both English law a' well as Indian
D law is the same which does not allow questions of arbitrator's own
jurisdiction to rest finally with the Arbitrators and in support of this
proposition Counsel relied upon the following authorities :

(a) Attorney-General .(or Manitoba v. Kelly and Ors, (supra)
where the Privy Council at page 276 of the Report has
E observed thus : "Whenever there is a difference of between
the parties as to the authoritl' conferred on an umpire
under an agreed submission, the decision rests ultimately
with the Court and not with umpire : Produce Brokers
Co. v. Olympia Oil and Cake Co. It would cbe impossible
to allow an umpire to arrogate to himself jurisdiction over
F a question which, on the true construction of the sub-
mission, was not referred to him. An umpire cannot widen •
the area of his jurisdiction by holding, contrary to the fact,
that the matter which he affects to decide is within the sub-
mission of the parties."

(b) Dalrnia Dairy Industries Ltd. v. National Bank of Pakistan
G
(supra) where the enforcibility of the award made by a sole
arbitrator pursuant to an arbitration clause contained in
the document of guarantee executed by the National Bank
of Pakistan in favour of Dalmia Dairy Industries Ltd. was
resisted by the Bank inter-alia on the ground that the arbi-
trator was not entitled to decide the question of his own
H jurisdiction when t!)e validity of tbe contract of guarantee
RS'IUS'.GAR Co. v. GESERAL ELECTRIC co. (Tulzapurkar, J.) 499
I
itself was disputed, and the Court of Appeal :at pages A
292·293 of the Report observed thus: "Whilst we recognise
that in answering issue l(B) differently from the learned
Judge ':'le are rejecting this preference on this issue Mr.
Sikri's evidence rather than that of Mr. Lall, we reach our
conclusion for the reason that we find nothing in the
learned Judge's judgment or in Mr. Sikri's evidence or in B
the Indian authorities, which seems to us justify departure
from the logical conclusion that there is no difference in
principal between a contract containing an arbitration
clause admittedly concluded but void for initial illegality
and a contract containing such a clause admittedly conclu-
ded but where it is alleged that either the contract or the c
arbitration Clause or both have become void because of
subsequent illegality. It seem to us to follow that even
where the arbitration clause is framed as widely as in the
present claim and bears the construction which we have
upheld in our answer to issue !(A), Indian law will not
D
allow effect to be given to it so as to allow an arbitrator
appointed thereunder finally to determine his own
jurisdiction."

(e) Becker Auto-Radio case (supra) where the United States
Court of Appeals (3rd Circuit) has expressed the view that E
the question of arbitrability of a dispute is for the Court
to decide (para 7 at page 44 of the Report read with foot-

- note JO).

(d) R. Prince and Co. v. Governor-General in Council (supra)
where following the aforesaid Privy Council decision the F
Punjab High Court at page 242 of the Repor~ has observed
• thus : "It is well established that an arbitrator or umpire
must not go beyo11d the submission and although there is
a presumption in favour of the validity of the award and
the onus of proving that the arbitrator has exceeded his
jurisdiction rests on the person alleging it, if an award
G
extends to matters not within the scope of the submission
it must be held to be void to the extent that it .is in excess
of the submission. An Arbitrator cannot give himself
jurisdiction by a wrong decision as to the facts upon which
the limit of his jurisdiction depends and where there is a
difference between the parties as to the authority of the
arbitrator under an agreed submission the decision rests H
500 SUPREME COURT REPORTS [I 985] 1 S.C.~·
\
A with the Court and not with the arbitrator." Observations
in similar strain made by the Allahabad High Court in
Municipal Board v. Eastern U.P. Electricity Supply Co.
Ltd. and Ors. (supra), by the Delhi High Court in M/s.
Jagan Nath Phool Chand v. Union of India & Ors. (supra)
and by the Bombay High Court in Vallabh Pitti v.
B
Narsingdas (supra) were also relied upon.

(e) Russell on Arbitration (20th Edition): At pages 91-92 the
following statement of law occurs: "It can hardly be with-
in the arbitrator's jurisdiction to decide whether or not a
c condition precedent to his jurisdiction has been fulfilled.
It has indeed several times been said bluntly that an t
arbitrator has no power to decide his own jurisdiction and
in one case where rules of an institution prepared to con-
duct arbitrations gave the arbitrator such power, the court
will ignore this when asked to enforce the award, and
D decide the question itself" : Dalmia Dairy Industry's case.
Again at page 112 the learned author bas digested Dalmia
Dairy Industry's case thus : "Again some of the rules
give the arbitrator power to decide whether be bas jurisdic-
tion in a particular di,pute. But English court will never
give effect to such rules and accordingly, if it is sought to
E enforce in England an award given after such a decision by
the arbitrator, the court will not accept it but will have to
determine the question of jurisdiction for itself."
•
In our view the aforesaid authorities relied on by Counsel for
Renusagar do not touch the real question which we have to decide
F
in the case. The question is whether in view of the wide arbitration
clause which embraces questions of existence, validity or effect
(scope) of the agreement it.elf Renusagar's rnit (which is in respect of
a matter agreed to be referred) should be sta)ed so as to enable the •
arbitrators to proceed with the .reference and make their award and
that question is required to be considered in regard to foreign awards
G to be made under the Foreign Awards Act and as such must be consi-
dered in light of the scheme of that Act and will necessarily be •
governed by the provisions thereof. As explained earlier the scheme
that emerges on a combined reading of ss. 3 and 7 of the Foreign
Awards Act clearly contemplates that questions of existence, validity
or effect (scope) of the arbitration agreement itself, in cases where
such agreement is wide enough to include within its ambit such
H questions, may be decided by the arbitrators initially but their deter-

f
ilENUSAGAR co. v. GENERAL ELECTRIC co. (Tuizapurkar, [.) 561
mination is subject to the decision of the Court and such decision of A
the Court can be had either before the arbitration proceedings com-
mence or. during their pendency, if the matter is decided in a section
3 petition or can be had under sec. 7 after the award is mane and
filed in the Court and is sought to be enforce by a party thereto. In
the face of such schemes envisaged by the Foreign Awards Act which
governs this case it will be difficult to accept. the contention that the B
arbitrators will have no jurisdiction to decide questions regarding the
existence, validity or effect (scope) of the arbitration agreement. In
fact the scheme makes for avoidance of dilatory tactics on the part of
any party to such agreement by merely raising a plea of lack of
arbitrator's competence-and a frivolous plea at that-and enables c
• ·the arbitrator to determine the plea one way or the other and if nega-
tived to proceed to make his award with the further safeg•1ard that
the Court would be in a position to entertain and decide the same
plea finally when the award is sought to be enforced. All that condi-
tion (iii) of sec. 3 requires is that the legal proceedings must be in
respect of a matter "agreed to be referred to the arbitration" and D
there is no warrant to add further words namely, "agreed to be
referred to the arbitration for final determination". Obviously if the
occasion to dedecide the question of arbitrator's jurisdiction arise> at
an earlier stage namely in a section-3 petition the Court has to decide
it before granting stay of the legal pro~eedings and such decision of
the Court on that.question will be conclusive and binding on the 1 E
arbitrator and the question before him will then become academic
rt h thus clear that under the scheme questions of existence, validity
' of effect (scope) of the arbitration agreement itself, in cases where the
arbitratioo cla•1se embraces within its scope such questions, (unless
decided by the Court in a section-3 petition) could be initially deter-
aiin e1 by the arbitrators, which would be subject to the final decision
of the Court. This position under the New York Convention (to give F
effect to which the Foreign Awards Act was passed) has heen clarified
by Albert Jan Van Den Berg in his treatise of New York Convention
at page 312-a passage on which Counsel for Renusagar relied. This
is what learned author has stated :
,. G
"The Convention does not imply that the arbitrator may give a
final decision on his competence. Under almost all arbitration
laws the arbitrator has no power to give such final decision · as
arbitration excludes the competence of the courts, which is
considered as a . far-reaching effect, the courts retain the last
word in this matter. Many laws, however, allow the arbitrator
to give a provisional ruling on his . competence in or!fer not to H
502 SUPREME COURT REPORTS (1985] l S.C.R.

A delay the arbitration and to alleviate dilatory tactics by obstauc-
tive respondents. This principle that the court has the last word
on the arbitrator's co.npetence is not different for the New York
Convention. If ii were otherwise, the Convention would have
contained express provisions to tl1at effect in order to make
clear that in deviates from the prnailing principles of the
B national arbitration laws."

Secondly, even the aforesaid authorities on \\hich reliance has been
placed by Counsel for Renusagar (excepting perhaps the American
decision in Becker Auto-Radio case; merely Jay down that the deci-
sion on questions of arbitrator's jurisdiction (assuming no distinction
c is made between questions regarding the existence or validity of the
agreement on the one hand and effect (scope) thereof on the other)
restsfi,;al/y or ultimately with the Court and not with the Arbitrator
or Umpire. : [As regards the American decision in Becker Auto-Radio
case it may be staled, as pointed out by Coumel for G.E.C. that the
D point was not decided but the statement or observation was made on
concession of the parties ; and as regards statement of law at pages
91-92 in Russell on Arbitration it must be pointed out that the
passage pressed into service by Counsel is merely a half portion of
the statement of law but the fuller statement of Jaw, as we shall indi-
cate later, gives a different picture.] These authorities do not suggest
that the arbitrator or umpire may not decide these questions even
provisionally or tentatively, In other words, there is nothing in the
general law of arbitration either English or Indian which prevents the
arbitrators or an umpire from deciding questions of their own juris-
diction provisionally or tentatively and to proceed to make their
awards on that basis, though it is clear that their provisional or tenta-
F tive decision on questions of their own jurisdiction would be subject
to the final determination by the Court and if the Court takes a cont-
rary view their award will not be given effect to and in our view this
is exactly the scheme of the Foreign Awards Act.

It may not be out of place to mention here that the statement
G of Albert Jan van den Berg that many national arbitration Jaws
·•
allow the arbitratar to give a provisional ruling on bis competence in
order not to delay the arbitration and to alleviate dilatory tactics by
· obstructing respondents is borne out in regard to t,he general law of
arbitration both English and Indian by several decisions. The position
under English law has been summarised in Russel on Arbitration at
pages 91-92 where a fuller statement of Jaw (to which we had adver-
H ted earlier) appears thus :
RENUSAGAR co. v. GENERAL ELECTRIC co. (Tu/zapurkar, J.) 503

"It can hardly be within the arbitrator's jurisdiction to decide A
whether or not a condition precedent to his jurisdiction has
been fulfilled. It has indeed several times been said bluntly
that an arbitrator has no power to decide bis own jurisdiction
and in one case where rules of an institution prepared to con-
duct arbitrations gave the 'arbitrator such power, the Court will
ignore this when asked to enforce the award, and decide the B
question itself. However, an arbitrator is always entitled to
enquire whether or not he has jurisdiction. An umpire faced
with a dispute wheiber or not there was a contract from which
alone his jurisdiction, if any, can arise can adopt one of a
. number of courses. He can refuse to deal with the matter at
c
• all and leave the parties to go to court, or he can consider the
matter and if he forms the view that the contract upon which
the claimant is relying and from which, if established, alone his
jurisdiction can arise is in truth the contract, be can proceed
accordingly." (The first part of the statement is baseci on
Dal mia Dairy Industry's(') case (supra) while the latter part is D
based on Brown v. Oesterrei-chischer Wa/dbesitzer R. Gmbh and
Per Roskill J. in Luanda Exportadora and Ors. v. Tamari & Sons
& Others,(')

So far as Indian Law is concerned the position is clarified in
Val/abh Pilfi v. Narsingdas (supra) ... a decision on which Counsel for E
Renusagar relied where the Bombay High Court bas held that the
jurisdiction of the arbitrators to decide the question of existence of
the contract which contains an arbitration clause is not wholly taken
away by mere denial of its existence ; that the arbitrator may consi-
der the question of jusisdiction, not to giv" final and binding judgment
on that question but in order to determine what course they should F
adopt; that they may in a case hold that they have no jurisdiction
and direct the party who affirms the jurisdiction to obtain a decision
of the Court under the Arbitration Act but on the .other hand if they
are satisfied that they have got jurisdic\ion they may proceed with the
arbitration and make their award; but a decree in terms of such award
may not be made by the Court if at the time when one is sought the
·-' Court decides question of jurisdiction otherwise. The High Court
pointed out that a similar view was taken by Bachawat, J. in Pannal/a/
G

Sagoremull v. Fatey Chand Mura/idlwr( 3) and that after deciding the

(!) [1954] 1 Q.B. 8.
(2) [1968] 2 Lloid's Rep. 353; 364.
(3) [1951] 88 C.L.J. 34.
H
504 SUl>REMB COURT RBPORts (1985) 1 S.C.R,
A question in issue he affirmed the award and ~assed a decree in terms
terms thereof. Similarly, it may be pointed out that there is no
difference between English law anj Indian law on the point that an
arbitration agreement which empowers an arbitrator to decide the
question of its existence, validity or effect (scope) is neither invalid
nor void. In Heyman v. Darwins Ltd. Lord Wright's observations
B at p. 385 of the Report clearly suggest that there can he a valid agree-
ment to refer any dispute to arbitration including a dispute as to
whether the contract in which the arbitration clause is contained was
ever entered into at all, or whether if there was, it had been avoided
or ended. As regards Indian law in Fertilizer Corporation of Jndia v.
c Chemical Construction Corporation(') the Bombay High Court bas clari-
fied this position whib dealing with Rules 3 and 4 of Article 13 of the
Rules of Conciliation and Arbitration framed by the International
"
Chamber of Commerce under which the arbitrators were clothed with
a power to decide, inter a/ia, a question as to the existence and vali-
dity of the Contract. Not only has the High Court held that the
D con feral of such power on the arbitrators does not render the Rules
void but has further gone on to bold that if such a plea is raised by
way of a defence in an application for stay of suit under s. 34 of
the Arbitration Act it will be for the Court to consider the validity of
the arbitration agreement itself and if in the opinion of the Court the
contract which contains the arbitration clause is valid no question is
E likely to arise before the arbitrators on that point and even if such
question were to arise the arbitrators will be concluded by the deci-
sion of the Court. We may point out that following this decision in '
Fertilizer Corporation's case (supra) the Court of Appeal in Da/mia
Dairy industries' case (supra) has held that the Rules of I.C.C enabl-
F ing the Arbitral Tribunal to decide its own jurisdiction were not void
(vide page 290 of the Report) and it has further noted 1·1ithout dis-
approval the further observations of the Bombay High Court that
if the court once itself decides the question that the arbitrators had
jurisdiction then that point would hardly be raised before the arbitra-
tors and if it were the arbitrators would l<_e bound by the decision
of the Court on the point.
G
In view of the position which arises from the aforesaid
discussion it is really unnecessary for us to go into and decide the
question whether, in cases where the arbitration clause contained in
the underlying Commercial Contract is so widely worded as to include

ff (I) 75 Bombay Law Reporter 335,
1\BNUSAOAR Co. v. <iBNBRAL BLBCTRIC co. (1'u/zapurkar, J.) 505
I
within its scope the questions of its existence, validity or effect (scope),. A
the decided cases have made a distinction between questions as to tbe
existence or validity of the agreement on the one hand and its effect
(scope) on the other and have held that in the case of the former
those questions cannot be decided by the arbitrators, as by sheer
logic the arbitration clause must fall along with the underlying
B
Commercial Contract which is either non-existent or illegal, while in
the case of the latter it will ordinarily be for the arbitrators to decide
the effect (scope) of the arbitration agree\l°ent .as is contended for by
Counsel for G.E.C., because both under the scheme of the Foreign
Awards Act as well as under the general law of arbitration obtaining
in England and in India, the decision of the arbitrator on the question c
of his own jurisdiction will have to be regarded as provisional or
~entative, subject to final determination of that question by the Court.
However, on a consideration of the rival authorities that have been
cited at the Bar bay Counsel on either side we are inclined to accept
the contention of Counsel for G.E.C. for the following reasons :
,_
(a) that conceptually a challenge to the existence or validity of the D
arbitration agreement contained in an underlying Commercial Con-
tract is fundamentally different from an inquiry into the scope and
effect of such agreement in as much as the former goes to the root of
the arbitration agreement whereas the latter pre-supposes that the
arbitration agreement exists in fact and in law and the inquiry is then ·
undertaken as to its true scope and effect; (b) that indisputably, E
decided cases have made this distinction between the two concepts,
t e.g. in Jawahar Lal Barman's case (supra) this Court has noted this
distinctiqn for the purposes of procedural aspects arising under
ss. 31(2), 32 and 33 of the Arbitration Act, 1940, but the English
c~ses particularly Heyman v. Darwins Ltd. (supra) and Wil/esford
v. Watson (supra) have made that distinction substantively ; (c) that F
certain observations made by this Court in para 6 of its judgment in
Water Supply Service India (P) Ltd. v. The Union of India and
Others(') on which Counsel for Renusagar have relied in support of
their contention that existence of an arbitration agreement is the
same as the effect (scope} thereof, do not, in our view, have the
effect of equating the question of the scope of the arbitration agree- G
• .· ment with the question of its existence ; in that case the application
made under s. 5 of the Arbitration. Act to revoke the arbitration was
obviously mis-conceived inasmuch as the ground on which th
revocation was sought was that the disputes sought to be referred t~
arbitration were not within the purview of the arbitration clause and

(I) AIR 1971 SC 2083 at 2085.
H
505 SUPRBMB CO'JRT REPORTS (1985] l S.C.R.

A it was in that context that the observations were made in para 6 of
the judgment to say that such a dispute was as regards the existence
of the arbitration agreement ; in fact, the ratio of the decision was
that the controversy raised in the case fell within the scope of s. 33 of
the Arbitration Act and not s. 5 ; in any case, in our view, the
incidental observation in para 6 of the judgment in that case on
B which Counsel for Renusagar have relied cannot outweigh the dis-
tinction which has been noticed by this Court in its well-considered
.udgment in Jawahar Lal Barman's case (supra) ; (d) that an anal}sis •
of several decisions cited at the Bar, we .venture to suggest, shows
that almost all the decision which articulate the principle broadly by
saying that an arbitrator has no power to decide questions of his own
c jurisdiction are cases in which the question of either the existence or
the validity of the arbitration agreement was involved, whereas when-
ever the question of arbitrator's jurisdiction deprnded upon the scope
or effect of the arbitration agreement Courts appear to have readily
directed the parties to go before the arbitrators ; and (e) in any event
the decision of the Court of Appeal in Chancery in Wil/esjord v.
D
Watson (supra)-which decision has been annotated aod digested in
Russell on Arbitration (10th Edn.)-is a clear authority for the pro-
position that where the arbitration clause was very widely worded so
as to include within its scope any dispute "touching the construction
of" the contract which contained the arbitration clause, the Court
'E would not decide but would leave it to the arbitrator to decide the
q~estion whether the matter in dispute between the parties fell within
the arbitration agreement. In fact, the Court of Appeal in that case
'
repelled every endeavour on the part of the appellants to require the
Court to do the very thing which lay within the competence of the
arbitrators-that is to say, to look into the whole matter, to construe
F the instrument and to decide whether the thing complained of was
inside or outside the agreement, and directed the parties to go to
arbitration by staying the suit. It would be debatable whether in
such a case where the Court has expressly declined to decide the
dispute involved between the parties and has directed the parties to
go to arbitration, the arbitrator's decision on the question of his
jurisC:iction would again be subject to Court's decision. Would it not
G be a case similar to the case falling within the principle of a specific •
question of law being expressly referred to an arbitrator whose deci-
sion thereon finally binds the parties : But as stated at the out set,
the •foresaid question on which we have expressed our view, does
not arise for decision in this case.

It was next contended by Counsel for Renusagar that a stay, if
RENUSAGAR co. v. GENERAL El ECTR!C co. (Tu!zapurkar, J.) 507
granted as sought by G.E.C. in a petition under s. 3, it A
wonld render Renusagar's suit dead for all practical
purpose and there will be nothing left to· be decided in the suit
either because the suit is stayed indefinitely or alterna tively because
the decision on the issue would operate as red judicata in the suit,
and, therefore, no relief of stay should be granted which will
have such effect merely on a prima facie view or a pro tanto B
finding on the issue of a1 bitrability of the claims, in support Counsel
relied upon a decision of the Allahabad High ·Court in Srrauss
Company's case (supra)-a case arising under the earlier Indian
Arbitration Act 1899-where that High Court has expressed the view
that ''a stay order under s. 19 of the Arbitration Act, when !lie arbi-
tration h;;s in fact taken place, is sufficient finally to dispose of the c
suit". In other words, the contention was that a section 3 petition
could not be a proper stage to decide the issue of arbitrability of the
claims but the same should be decided in the suit when it will be
finally tried. If regard be had to the provisions ofs. 3 as well as the
legal position arising un 1er decided cases the contention will be
D
found to be devoid of any substance. It may be that a stay of the

. suit either under rs. 3 of the Foreign Awards Act or under s. 34 of
the Arbitration Act, I 940 may have the effect of finally disposing of
the suit for all practical rroposes as pointed out by tl1e Allahabad
High Court. But that is no reason why the relief of stay should be
refused by the Court if the concerned legal provision requires the E
f
Court to do so. Here we are concerned with s. 3 which makes it
obligatory upon the Court to stay the legal proceedings if the condi·
tions of the section are satisfied:and what is more the section itself
requires that before any stay is granted the Court should be satisfied
that the arbitration agreement is valid, operative and capable of
being performed and that there are disputes between the parties with F
regard to the matters agreed to be referred to arbitration (condition
(v) and (vi) mentioned earlier). In other words, the section itself
I
indicates that the proper stage at which the Court has to be fully
' satisfied about these conditions is before granting the relief of stay in
a s. 3 petition and there is no question of the Court getting satisfied
about these conditions on any prima facie view or a pro tanto finding
thereon. Parties have to put their entire material before the Court G
on these issues (whichever may be raised) and the Court has to record
its finding thereon after considering such material.
It may be stated that though s.34 of the Arbitration Act, 1940
confers a discretion upon the Court in the matter of granting stay of
legal proceedings where there is an arbitration agroement, it cannot
Jle disputed that before granting the stay the <;:ourt h~s to satisfy *elf H
sos SUPREME COURT REPORTS [1985] I S.C.R.
Athat arbitration agreement exists factually and legally and that the
disputes between the parties are in regard to the matters agreed to be
referred to arbitration (these aspects fa]] within the phrase 'if satisfied
that ~here is no reason by the matter should not be referred' oc-curring
therein) and decided cases have taken the view that the Court must
satisfy itself about these matters before the stay order is issued. In
B other words, Court under s.34 must finally decide these issues before
granting stay. In Fhagwandas v. Atmasing(1) on a consideration
Act the Bombay of the scheme underlying ss. 32,33 and
34 of the Arbitration High Court has taken the view that
a defendant who applies for st~y s. 34 has to say that there

c is an arbitration agreement that if the plaintiff says that
there is no agreement then the issues arises between the parties and
.
there nothing in s. 34 to prevent the Court from deciding that issue
to'Jenable it to pass an order under that Section. The same position .
under s. 4(1) of the English Arbitration Act, 1950 has been affirmed in
a judgment of the Court of Appeal in England in Modern Building Wale
D Ltd. v. Limmer and Trinidad Co. Ltd.(') The Court of Appeal held that
where a party claimed that proceedings should be stayed because there
was an arbitration agreement in force the Court was under a duty to
construe the terms of the contract iu order to d<cide whether there
was a valid arbitration clause and that question had to be determined
.
at an interlocutory stage because !t had to be done before the defen-
E dant took any step in the action. In Anderson Wright Ltd. v. Meran
& Co.(') the respondent (Moran & Co.) sold certain goods to the \
appellant under a number of similar contracts, which contained a
wide arbitration clause. Respondent, howeveri described himself as
broker when signing the contracts. The appellants wanted to claim
damages from the respondent for non-delivery of the goods under the
-
F contract-notes and desired to refer the same to the arbitration. To
prevent this arbitration the respondent filed a suit for a declaration
that he was not a party to the said contracts, he having signed the
same as broker and that he had incurred no liability thereunder and
he further prayed for the consequential relief of an injunction restrain-
ing the appellant from claiming damages in respect of the said
G- contracts. The appellant applied for the stay of the suit under s. 34 ,.
of the Arbitration Act. Learned trial Judge granted stay of the suit.
The Appellate Bench of the High Court took the view that the only
matter in dispute between parties was whether the respondent was a
party to the contract or not and that this dispute was outside the

(!) AIR 19<5 llom.!494.
(2) [1975] 2 All E.R. 549.
Ji (3) [195511 s.c.R. 862.
RENUSAGAR co. v. GENERAL ELECTRIC co. \Tulzopurkar, J.) 509
scope of the arbit.ration agreement but no opinion was expressed on A
the question whether there was a binding arbitration agreement bet-
ween the parties (which was the only issue in the suit, the relief on
merits being consequential) since that would, in the opinion of the
Appellate Court, create a bar of res judicata against one of the party.
This Court, however, held that it was incumbent upon a Court, when
invited to stay a suit under s. 34 of the Arbitration Act, to decide B
• first of all whether there is a binding arbitration agreement between
the parties or not. At page 870 of the Report the Court has observed
thus:
"In this ca;e it is certainly not admitted that the respondent was
a party to the contract. In fact, that is the subject-matter of
• controversy in the suit itself. But, as has been said already, the c
question having been raised in this application under s. 34 of
the Arbitration Act, the Court has undoubted jurisdiction to
decide it for the purpose of finding as to whether or not there
is a binding a;bitration agreement between the parties to the
suit." D
The Court actually sent the case back for a decision of that question
with a direction that if the Court came to the conclusion that the
.. respondent was, in fact, a party to the contracts, the suit shall be
stayed and the appellant would be allowed to proceed by way of
arbitration but, if, on the other hand, the fiading was adverse to the
aµpellant the application for stay .!ill be dismissed. Counsel for E
Renusagar pointed out that the suit did not merely raise the issue that
the respondent was not a party to the contract-notes and that there-
fore, there was no arbitration agreement between the parties but also
claimed relief on merits, namely, an injunction restraining the appel-
lant from claiming damages in. respect of the said contracts and,
therefore, the direction to stay the suit in case the finding on the F
main issue went against the respondent, had some meaning but in
• the instant case before us no relief on merits bas been claimed by
Renusagar in its suit which merely raises the issue of arbitrability of
the claims. In our view, this distinction is neither valid nor rele.vant
to the question under consideration. Not valid because the only
issue which the suit (filed by Moran & Co.) raised was whether there G
waq binding arbitration agreement between the parties or not and an
adverse decision thereon in a sec. 34 application would have had the
effect of disposing of the suit for all practical purposes, the conse-
quential relief automatically falling to the ground along with such
adverse decision. Not relevant because the question of issue is
whether a sec. 34 application is proper stage for deciding such "{$We
lhough it mar have the effec\ of the issue becoming res-judicata in
510 SUPREME COURT REPORTS (1985] I s.c.R.
A the suit. What is of significance is that the decision of this Coor t
does show that notwithstanding the fact that a finding on the issue
that the respondent WJS a party to the contracts would have operated
as rcs-judicata in the respondents' suit, the Court directed that issue
to be decided in a s. 34 petition for stay. Jn deciding the question
under s. 34 in this manner the Court expressed its entire agreement
B with the view enunciated by Mr. J11stice S.R. Das in Khushiram v.
Hantumal\ 1 ) that where on an application made under sec. 34 of the •
Arbitration Act for stay of a suit, an issue is raised as to the forma-
tion, existence or validity of the contract containing the arbitration

c
clause, the Court is not bound to refuse a stay but may in its discre-
tion, on the application for stay, decide the issue as to the existence
or validity of the arbitration- agreement even though it may involve
.
incidentally a decision as to the validity or existence of the parent
contract. If this is the position under s. 34 of the Arbitration Act
which confers discretionary power upon the Court a fortiori the
Court acting under s. 3 of the Foreign Awards Act must decide such
D issues at that stage when the grant of stay is obligatory.
Jn the instant case the issue pertained to the arbitrability of the
three claims under the Arbitration clause in the contract and depended
upon the proper construction thereof in light of the condu_ct of the
parties and s"rrounding circumstances and no prejudice was caused
to any of the parties as both Renusagar's application for injunction
E and GE C.'s stay petition under sec. 3 were heard together and
parties did put before the Court-Trial Court, the /\ppeal Court and
even even before us-the en tire material such as each wanted to rely
.upon and sought a decision on the concerned issue and we are satis
fled that the finding recorded by both the lower c runs en the issue
is correct ; and in that view of the matter the prayer for injunction
F restraining arbitration sought by Renusagar could not be granted and
was rightly refused. The triable issue raised in the suit having been
found upon ~gainst Renusagar no question of balance of convenience
.•
survives.
We would reiterate that the Court's decision on the issue of
rbitrability of three claims will have to be regarded as final, conclu-
G sive anJ binding and that issue would not arise before the Court of
arbitration of I.C.C. and even if it is raised it would be purely
academic.·
Jn the result both the appeals filed by Renusagar against G.E.C.
are djsmissed with costs.

S.R. Appeals dismissed.

H I) [1948] 53 C.W.N. 505 at 51 8.