LEGAL ISSUES Dying declaration = when her statement was shrouded by suspicious circumstances and contrary to the claim of the prosecution. Particularly, when she was alleged to have 97% burns and being under constant sedatives first at Civil Hospital, Naraingarh and then at PGI, Chandigarh, in such a situation she could not be expected to make a statement at a stretch without asking any questions. Admittedly, the Executive Magistrate, PW-2 did not put any question and recorded her answers. 14) Another important aspect relating to failure on the part of prosecution is that on the date of the incident, the deceased had two children aged about six and four years respectively and both of them were present there, admittedly, the I.O. has not enquired them about the genuineness of the incident. Though, there are number of immediate neighbours/co-

                                                              REPORTABLE

                                                                               

               IN THE SUPREME COURT OF INDIA


              CRIMINAL APPELLATE JURISDICTION


              CRIMINAL APPEAL NO. 328  OF 2004





Surinder Kumar                                            .... Appellant(s)



            Versus



State of Haryana                                            .... Respondent(s)





                            J U D G M E N T




P. Sathasivam, J.


1)    This   appeal   is   directed   against   the   final   judgment   and



order   dated   19.12.2003   passed   by   the   High   Court   of   Punjab



and Haryana at Chandigarh in Criminal Appeal No. 241-DBA



of 1993 whereby the High Court while reversing the judgment



dated   17.12.1992   passed   by   the   Sessions   Judge,   Ambala



allowed   the   appeal   filed   by   the   State   and   convicted   the



appellant herein under Section 302 of the Indian Penal Code,





                                                                               1


1860   (in   short   `IPC')   and   sentenced   him   to   undergo   rigorous



imprisonment for life and to pay a fine of Rs.25,000/- and in



default   of   payment   of   fine,   to   further   undergo   rigorous



imprisonment for one year.



2)  Brief facts:



(a)    According to the prosecution, the accusation against the



appellant-accused   was   that   he   was   on   visiting   terms   to   the



house   of   Inder   Pal   (PW-7),   husband   of   Kamlesh   Rani   (since



deceased), who was working at Mullana and keeping his family



at Naraingarh, Dist. Ambala, Haryana.  The appellant-accused



had   been   visiting   Inder   Pal's   house   and   developed   illicit



relationship   with   his   wife-Kamlesh   Rani.     Inder   Pal   (PW-7)



suspected the same between them and stopped his wife from



meeting   the   appellant-accused.     When   the   appellant-accused



was   stopped   to   visit   their   house,   he   had   started   threatening



and harassing Kamlesh Rani for which she made a complaint



to her husband.   Inder Pal (PW-7) also visited the shop of the



appellant-accused   and   told   him   not   to   visit   his   house   and



harass his wife.





                                                                            2


(b)    On   the   intervening   night   of   25/26.06.1991,   when   Inder



Pal   (PW-7)   was   away   from   his   house,   the   appellant-accused



went to his house and taunted his wife that she had become a



woman   of   immoral   character   and   called   upon   her   to   burn



herself to death if she had any sense of shame.  Thereafter, the



appellant-accused  picked  up   a  kerosene   can   lying  in   the   one



room apartment and after pouring the same on the deceased,



set   her   on   fire.     When   the   fire   developed,   the   appellant-



accused  ran   away  from   the  room   after   placing   a  quilt   on   the



deceased.  The neighbours of the deceased took her to the Civil



Hospital, Naraingarh where she was examined by Dr. Ashwani



Kumar Kashyap, Medical Officer (PW-1).  He immediately sent



intimation to In-charge Police Station, Naraingarh to the effect



that the deceased had been brought to the hospital with 100%



burns, and as the condition of the patient was critical she had



been referred to P.G.I., Chandigarh.  At P.G.I. Chandigarh, she



was admitted in the Emergency Ward and Dr.Vipul Sood (PW-



9) examined her and reported a case of 95% burn injuries.



(c)     On   receiving   the   information,   Dalip   Rattan   (PW-3),   Sub-



Inspector, P.S. West, Chandigarh applied to the Sub-Divisional





                                                                           3


Magistrate,   Chandigarh   for   appointment   of   an   Executive



Magistrate   to   record   the   statement   of   Kamlesh   Rani.



Consequently,   Shri   P.K.   Sharma,   Tehsildar-cum-Executive



Magistrate   (PW-2)   was   deputed   to   record   her   statement.     On



26.06.1991,   PW-2   recorded   her   statement   and   a   First



Information   Report   was   registered  being   No.   86/1991   at   P.S.



Naraingarh   at   5.30   p.m.   under   Section   307   IPC.     On   the



intervening night of 28/29.06.1991, Kamlesh Rani succumbed



to   the   injuries   and   the   case   was   converted   into   Section   302



IPC.     Thereafter,   Ram   Niwas   (PW-13),   Sub   Inspector,   P.S.



Ambala,   arrived   at   P.G.I.,   Chandigarh   and   prepared   the



inquest   report.     Post   mortem   was   conducted   at   General



Hospital,   Sector   16,   Chandigarh   by   Dr.   V.K.   Chopra   and   Dr.



Ajay Verma (PW-12) on 29.06.1991 at 4.45 p.m.  On the same



day, the accused was arrested and the case was committed to



the Court of Sessions.



(d)      The   Sessions   Judge,   Ambala,   after   analyzing   the



evidence  and   after   giving   the  benefit   of   doubt,   vide   judgment



dated 17.12.1992 acquitted the appellant-accused.  





                                                                            4


(e)    Challenging the said judgment, the State of Haryana filed



an   appeal   bearing   Criminal   Appeal   No.   241-DBA   of   1993



before the Division Bench of the High Court.  The High Court,



vide judgment dated 19.12.2003, reversed the judgment of the



Sessions Judge, Ambala and sentenced the appellant-accused



to   rigorous   imprisonment   for   life   and   imposed   a   fine   of



Rs.25,000/-   and   in   default   of   payment   of   fine,   to   further



undergo rigorous imprisonment for one year.



(f)    Aggrieved   by   the   said   judgment,   the   appellant-accused



has filed this appeal before this Court.



3)     Heard   Mr.   Sushil   Kumar,   learned   senior   counsel   for   the



appellant-accused   and   Mr.   Manjit   Singh,   learned   Additional



Advocate General for the respondent-State.



4)     The   trial   Court   based   on   the   dying   declaration   Ex.   PD



alleged   to   have   been   made   by   the   deceased-Kamlesh   Rani



before   Shri   P.K.   Sharma   (PW-2),   Executive   Magistrate,



Chandigarh   and   after   finding   that   it   does   not   inspire



confidence   in   the   mind   of   the   Court   and   being   the   only



evidence   appearing   against   the   accused,   after   giving   the



benefit   of   doubt   in   his   favour,   acquitted   from   the   charges





                                                                            5


levelled   against   him.     On   the   other   hand,   the   High   Court



relying   on   the   dying   declaration   holding   that   it   is   extremely



difficult   to   reject  the   dying  declaration   altogether   and   finding



that in the said dying declaration the deceased had positively



stated that she had been immolated by the accused/appellant,



set aside the order of acquittal passed by the trial Court and



found   him   guilty   under   Section   302   IPC   and   sentenced   to



undergo rigorous imprisonment for life.   In view of the same,



the   only   question   for   consideration   in   this   appeal   is   whether



the   dying   declaration   Ex.   PD   of   Kamlesh   Rani   is   reliable,



acceptable and based on which conviction is sustainable.



5)    We   have   already   referred   to   the   accusation   against   the



accused   that   he   was   on   visiting   terms   to   the   house   of   Inder



Pal-husband   of   the   deceased   who   was   keeping   his   family   at



Naraingarh,   however,   working   at   Mullana.     The   accused



Surinder Kumar had been visiting the house of the deceased-



Kamlesh   Rani   during   the   absence   of   her   husband   Inder   Pal.



Inder   Pal   suspected   illicit   relationship   between   Surinder



Kumar and his wife Kamlesh Rani.   It is further seen that on



the date of occurrence, that is, on 26.06.1991, Kamlesh Rani





                                                                              6


went  to  the  cinema  in  the  company  of  four  other   ladies.     On



the   same   evening,   Surinder   Kumar   confronted   her   of   having



loose   character   and   called   upon   her   to   immolate   herself   to



death   if   she   had   any   sense   of   shame.     Thereafter,   Surinder



Kumar   picked   up   a   kerosene   can   lying   in   the   one-room



apartment   and   after   pouring   the   same   on   Kamlesh   Rani   set



her   on   fire.     When   the   fire   developed,   he   ran   away   from   the



room after placing a quilt on her person.  On hearing her cries,



neighbours   reached   at   the   spot   and   carried   her   to   the   Civil



Hospital,   Naraingarh   and   then   she   had   been   shifted   to   PGI



Hospital,   Chandigarh   where   she   made   a   dying   declaration



statement   before   P.K.   Sharma,   (PW-2),   Executive   Magistrate



and   thereafter   on   28/29.06.1991,   she   succumbed   to   her



injuries.



6)     Before   considering   the   acceptability   of   dying   declaration



(Ex.PD), it would be useful to refer the legal position.



(i)    In       Sham   Shankar   Kankaria   vs.   State   of


Maharashtra, (2006) 13 SCC 165, this Court held as under:



       "10.   This   is   a   case   where   the   basis   of   conviction   of   the

       accused   is   the   dying   declaration.   The   situation   in   which   a

       person   is  on  deathbed   is  so   solemn   and   serene  when  he  is

       dying   that   the   grave   position   in   which   he   is   placed,   is   the

       reason in law to accept veracity of his statement. It is for this




                                                                                             7


reason  the  requirements  of  oath  and  cross-examination  are

dispensed   with.   Besides,   should   the   dying   declaration   be

excluded   it   will   result   in   miscarriage   of   justice   because   the

victim being generally the only eyewitness in a serious crime,

the exclusion of the statement would leave the court without

a scrap of evidence.

        11.  Though   a   dying   declaration   is   entitled   to   great

weight,   it   is   worthwhile   to   note   that   the   accused   has   no

power   of   cross-examination.   Such   a   power   is   essential   for

eliciting the truth as an obligation of oath could be. This  is

the   reason   the   court   also   insists   that   the   dying   declaration

should   be   of   such   a   nature   as   to   inspire   full   confidence   of

the   court   in   its   correctness.   The   court   has   to   be   on   guard

that the statement of deceased was not as a result of either

tutoring or prompting or a product of imagination. The court

must be further satisfied that the deceased was in a fit state

of mind after a clear opportunity to observe and identify the

assailant.   Once   the   court   is   satisfied   that   the   declaration

was   true   and   voluntary,   undoubtedly,   it   can   base   its

conviction   without   any   further   corroboration.  It   cannot   be

laid   down   as   an   absolute   rule   of   law   that   the   dying

declaration cannot form the sole basis of conviction unless it

is corroborated. The rule requiring corroboration is merely a

rule   of   prudence.   This   Court   has   laid   down   in   several

judgments the principles governing dying declaration, which

c
  ould   be   summed   up   as   under   as   indicated   in   Pa
                                                                          niben
                                                                                  v.

S
  tate of Gujarat (1992) 2 SCC 474 (SCC pp.480 -8
                                                                   1, para 18)

                                                      (Emphasis supplied)

          (i)   There   is   neither   rule   of   law   nor   of   prudence   that

dying   declaration   cannot   be   acted   upon   without

corroboration. (See Munnu Raja v. State of M.P.,(1976) 3 SCC

104)

        (ii) If the Court is satisfied that the dying declaration is

true   and   voluntary   it   can   base   conviction   on   it,   without

corroboration. (See  State  of U.P. v.  Ram Sagar Yadav, (1985)

1 SCC 552 and Ramawati Devi v. State of Bihar,(1983) 1 SCC

211)

        (iii)   The   Court   has   to  scrutinise   the   dying   declaration

carefully   and   must   ensure   that   the   declaration   is   not   the

result   of   tutoring,   prompting   or   imagination.   The   deceased

had   an   opportunity   to   observe   and   identify   the   assailants

and   was   in   a   fit   state   to   make   the   declaration.   (See  K.

Ramachandra Reddy v. Public Prosecutor,(1976) 3 SCC 618)

        (iv)   Where   dying   declaration   is   suspicious,   it   should

not   be   acted   upon   without   corroborative   evidence.   (See

Rasheed Beg v. State of M.P.,(1974) 4 SCC 264 )




                                                                                          8


                 (v)   Where   the   deceased   was   unconscious   and   could

         never   make   any   dying   declaration   the   evidence   with   regard

         to it is to be rejected. (See  Kake Singh  v.  State  of M.P., 1981

         Supp SCC 25)

                 (vi)   A   dying   declaration   which   suffers   from   infirmity

         cannot   form   the   basis   of   conviction.   (See  Ram   Manorath  v.

         State of U.P.,(1981) 2 SCC 654)

                 (vii)   Merely   because   a   dying   declaration   does   contain

         the details as to the occurrence, it is not to be rejected. (See

         State   of   Maharashtra  v.  Krishnamurti   Laxmipati   Naidu,1980

         Supp SCC 455)

                 (viii) Equally, merely because it is a brief statement, it

         is not to be discarded. On the contrary, the shortness of the

         statement   itself   guarantees   truth.   (See  Surajdeo   Ojha  v.

         State of Bihar,1980 Supp SCC 769.)

                 (ix) Normally the court in order to satisfy whether the

         deceased   was   in   a   fit   mental   condition   to   make   the   dying

         declaration   look   up   to   the   medical   opinion.   But   where   the

         eyewitness   has   said   that   the   deceased   was   in   a   fit   and

         conscious   state   to   make   the   dying   declaration,   the   medical

         opinion   cannot   prevail.   (See  Nanhau   Ram  v.  State   of

         M.P.,1988 Supp SCC 152)

                 (x)   Where   the   prosecution   version   differs   from   the

         version   as   given   in   the   dying   declaration,   the   said

         declaration   cannot   be   acted   upon.   (See  State   of   U.P.  v.

         Madan Mohan, (1989) 3 SCC 390)

                 (xi)   Where   there   are   more   than   one   statement   in   the

         nature of dying declaration, one first in point of time must be

         preferred.   Of   course,   if   the   plurality   of   dying   declaration

         could   be   held   to   be   trustworthy   and   reliable,   it   has   to   be

         accepted.   (See  Mohanlal   Gangaram   Gehani  v.  State   of

         Maharashtra,(1982) 1 SCC 700)"



(ii)     In  Puran   Chand   vs.   State   of   Haryana,   (2010)   6   SCC



566,   this   Court   once   again   reiterated   the   abovementioned



principles.



(iii)    In  Panneerselvam vs. State of Tamil Nadu, (2008) 17



SCC   190,   a   Bench   of   three   Judges   of   this   Court   reiterating



various principles mentioned above held that it cannot be laid



                                                                                              9


down   as   an   absolute   rule   of   law   that   the   dying   declaration



cannot   form   the   sole   basis   of   the   conviction   unless   it   is



corroborated and the rule requiring corroboration is merely a



rule of prudence.



7)    In   the   light   of   the   above   principles,   the   acceptability   of



the   alleged   dying   declaration   in   the   instant   case   has   to   be



considered.     If,   after   careful   scrutiny,   the   Court   is   satisfied



that it is free from any effort to induce the deceased to make a



false statement and if it is coherent and consistent, there shall



be no legal impediment to make a basis of conviction, even if



there   is   no   corroboration.     With   these   principles,   let   us



consider the statement of Kamlesh Rani and its acceptability.



8)    Kamlesh   Rani   was   initially   taken   to   the   Civil   Hospital,



Naraingarh at 2.20 a.m. on 26.06.1991 where she was initially



examined   by   Dr.   Ashwani   Kumar   Kashyap   (PW-1).   The   said



Medical   Officer   immediately   sent   intimation   to   In-charge   P.S.



Naraingarh to the effect that Kamlesh Rani had been brought



to the hospital with 100% burns, the patient was critical and



had   been   referred   to   PGI,   Chandigarh.     Thereafter,   at   P.G.I.,



she was admitted in the Emergency ward and Dr. Vipul Sood





                                                                               10


(PW-9) examined her at 04:35 a.m. and reported a case of 95%



burns.   It is further  seen that  on  receiving information,  Sub-



inspector   Dalip   Rattan   (PW-3)   applied   to   the   Sub-Divisional



Magistrate,   Chandigarh   for   appointment   of   Executive



Magistrate to record Kamlesh Rani's statement.  Based on the



same,  Shri  P.K.  Sharma,  Tahsildar-cum-Executive   Magistrate



(PW-2) was deputed to  record her statement.   The Magistrate



who   reached   PGI   applied   to   the   Doctor   In-charge   to   certify   if



Kamlesh   Rani   was   mentally   and   physically   fit   to   make   a



statement or not.   The doctor certified at 07.25 a.m. that she



was   fit   to   make   a   statement.     Thereafter,   Kamlesh   Rani's



statement   was   recorded   which   is   marked   as   Ex.   PD.     It   was



marked   with   thumb   impression   of   Kamlesh   Rani   and   signed



by the Magistrate at 7.45 a.m.   It is relevant to note the said



dying declaration which reads thus:



      "Yesterday,   at   about   10:00   o'clock   four   ladies   came   to   my

      house and asked me to accompany them to see a movie and

      we all had gone to see the movie. One boy Subhash was also

      seeing   movie.   He   was   sitting   there   on   the   back   seat.   After

      seeing the movie, I came back to my house. Surinder Kumar

      Garg   who   is   a   so-called   brother   (dharma   Bhai)   of   my

      husband came in the evening and asked me that I had gone

      to see picture and stated that I had become a bad character.

      My  husband is doing  service  at Mullana and lives there. At

      that   time,   he   was   at   Mullana.   Then   Surinder   said   if   I   had

      any   sense   of   shame,   I   should  die   by   burning   myself.   Then,

      he   took   kerosene   from   a   container   (small   peepi)   and




                                                                                          11


      sprinkled it over me and set me on fire with a match stick.

      When I was in flame, he put a quilt upon me and ran away.

      My neighbour removed me to Naraingarh hospital and from

      there   I  was  referred  to  P.G.I.,   Chandigarh.   I   have   made   my

      statement in full senses and without any pressure."



As   observed   earlier,   initially,   the   trial   Court   acquitted   the



accused and the High Court convicted him solely on the basis



of the above declaration.   In the light of the same, we have to



find  out   whether  the  dying  declaration  made  and  recorded is



acceptable   and   whether   it   satisfied   the   required



norms/procedure   as   held   by   this   Court.     In   other   words,   we



have   to   see   whether   the   dying   declaration   inspire   the



confidence of the court.   It is not in dispute that  if the dying



declaration is by a person who is conscious and the same was



made   and   recorded   after   due   certification   by   the   doctor,   it



cannot be ignored.  In the first sentence of Ex. PD, it has been



mentioned that on the date of occurrence, she had gone for a



movie   at   10.00   O'  clock   with  four   other  ladies.    According   to



her, these ladies came to her house and on their request she



also   went   to   see   the   movie   and   returned   back   to   her   home.



Though   I.O.   has   examined   some   persons,   there   is   no



information   about   the   "four   ladies"   who   accompanied   the





                                                                                     12


deceased to the cinema house.   The I.O. did not care to verify



those four ladies who accompanied the deceased to the cinema



house.     In   the   same   declaration,   she   also   stated   that   apart



from   the   four   ladies   one   boy   Subhash   was   also   seeing   the



movie along with them.  According to her, he was sitting there



on the back seat.  The said Subhash was also not examined by



the I.O.  Non-examination of four ladies, who accompanied the



deceased   to   the   cinema   house   and   no   information   about



Subhash   gave   an   impression   that   the   I.O.   had   not   properly



conducted   the   investigation.     If   at   least   one   of   the   ladies   or



Subhash   was   examined,   it   would   strengthen   the   prosecution



case.     However,   the   I.O.   purposely   omitted   to   examine   the



ladies who went for cinema and in the same manner no effort



was   made   to   trace   Subhash   whom   the   deceased   saw   at   the



movie.  None of the so-called neighbours were produced at the



trial.     The   landlord   of   the   deceased-Ram   Rattan   was   not



examined at the trial.   It was Ram Rattan who had driven the



van   to   take   Kamlesh   Rani   from   Civil   Hospital,   Naraingarh   to



PGI, Chandigarh.  It is to be noted that Kamlesh Rani's sister's



husband   Surinder   Pal   informed   Inder   Pal-husband   of   the





                                                                                13


deceased about the incident.   Inder Pal and Surinder Pal had



together gone to Chandigarh and later met Kamlesh Rani.  For



the reasons best known to the I.O., the said Surinder Pal was



not examined on the side of the prosecution.   In other words,



non-examination   of   any   one   of   the   ladies   who   accompanied



the deceased to cinema in the morning, presence of Subhash



and   the   landlord   of   the   deceased,   namely,   Ram   Rattan,



another tenant Jeet Singh were all vital to the prosecution.  All



these were important omissions on the part of the I.O.   When



Hira   Lal   (PW-11),   Assistant   Sub-Inspector   was   examined,   he



fairly admitted that he had not obtained opinion of the Doctor



at that time about her fitness to make a statement.   Another



doctor-PW-12,   who   conducted   post   mortem,   had   opined   that



the   cause   of   death   is   septicemia   due   to   extensive   burns



(approx.   97%)   which   is   sufficient   to   cause   death   in   ordinary



course of nature.



9)    Ram Niwas (PW-13), Sub-inspector also admitted that he



did   not   make   any   effort   to   ascertain   the   women   who   had



accompanied   Kamlesh   Rani   to   see   the   movie.     He   also



admitted   that   he   had   not   associated   Subhash   referred   to   in





                                                                            14


the dying declaration during investigation.   He fairly admitted



that he had no knowledge about any person by name Surinder



Pal who happened to be sister's husband of Kamlesh Rani who



was   employed   in   Civil   Hospital,   Naraingarh.     All   the   above



infirmities/defects   have   not   been   properly   explained   by   the



prosecution.



10)    Now   coming   to   her   state   of   mind,   all   the   doctors   have



mentioned   that   she   was   admitted   with   burn   injuries   to   the



extent   of   100%   and   after   sometime   she   succumbed   to   the



injuries.     It   is   true   that   P.K.   Sharma   (PW-2),   Tahsildar-cum-



Executive Magistrate recorded her statement.  In his evidence,



PW-2 has stated that on the orders of Shri Jagjit Puri, SDM,



Union Territory of Chandigarh, by his order Ex. PB/1 deputed



him to record the statement of Kamlesh Rani.  Pursuant to the



said direction, he went to the PGI and moved an application to



seek the opinion of the doctor whether Kamlesh Rani was fit to



make   a   statement   or   not.     He   further   deposed   that   when   he



had   contacted   Kamlesh   Rani   she   was   present   in   the   general



ward and some persons were also standing there, they left the



room   on   his   direction.     About   the   absence   of   the   doctor





                                                                              15


certifying at the time and date when she made a statement, he



clarified that the doctor issuing such certificate was busy with



his professional work.  Kamlesh Rani had made a statement in



local   dialect   of   mixed   Hindi/Punjabi   and   PW-2   had   recorded



her statement in Hindi script.   Here again, it was pointed out



that these were not factually correct.  In view of the doubt, we



verified the original which is in Hindi script only and not local



dialect   in   mixed   Hindi/Punjabi.     Though,   according   to   PW-2,



she put her thumb impression, in view of the evidence of the



doctors that she was brought to hospital with 100% burns and



at   the   time   of   recording   her   statement,   she   suffered   95-97%



burn   injuries,   it   is   highly   doubtful   whether   it   would   be



possible   for   her   to   have   her   thumb   impression   below   her



statement.     It   is   also   not   clear   that   when   the   whole   body   is



burnt   and   bandaged   how   the   thumb   impression   of   the



deceased was obtained.



11)    We   have   already   noted   that   admittedly   at   the   time   of



recording   the   statement   of   the   deceased   by   PW-2,   no



endorsement   of   the   doctor   was   made   about   her   position   to



make such statement.  On the other hand, an application was





                                                                                16


filed by Hira Lal, (PW-11) to Doctor In-charge PGI, Chandigarh



seeking clarification "whether she is fit to make the statement



or   not"   and   for   the   said  query  an   endorsement  was   made  by



the   doctor   mentioning   that   "patient   conscious   answering   the



questions,   patient   fit   to   give   statement".     We   compared   the



dying   declaration   Ex.   PD   recorded   by   PW-2   as   well   as   the



endorsement made in the requisition of Hira Lal, ASI (PW-11).



The verification of both the documents show different doctors



have   certified   and   made   such   a   statement.     Dr.   Vipul   Sood,



PW-9,   PGI   Chandigarh   in   his   evidence   has   stated   Kamlesh



Rani was admitted in the Emergency ward of PGI Hospital on



26.06.1991   at   about   4.30   a.m.   with   95%   burns.     He   also



deposed   that   when   Ex.   C/1   was   submitted   by   P.K.   Sharma,



PW-2   on   which   he   gave   his   opinion   that   the   patient   is   fit   to



make a statement on 26.06.1991 at about 7.25 a.m.  It is clear



that   at   the   time   when   PW-2   recorded   the   statement   of   the



deceased   Dr.   Vipul   Sood   (PW-9)   was   not   present   and



subsequently on the request of the police officer, he offered his



opinion   to   the   effect   that   the   patient   was   fit   to   make   a





                                                                                  17


statement.     The   procedure   adopted   by   PW-2   while   recording



the statement of dying declaration is not acceptable.              





12)    As per the prosecution, the incident took place at 2 a.m.



on   26.06.1991   and   as   per   her   statement,   the   occurrence   of



burning   was   in   the   evening   of   25.06.1991,   that   is,   the



previous day.  The dying declaration did not carry a certificate



by   the   Executive   Magistrate   to   the   effect   that   it   was   a



voluntary   statement   made   by   the   deceased   and   that   he   had



read over the statement to her.  The dying declaration was not



even   attested   by   the   doctor.     As   stated   earlier,   though   the



Magistrate   had   stated   that   the   statement   had   been   made   in



mixed   dialect   of   Hindi   and   Punjabi   and   the   statement   was



recorded only in Hindi.  Another important aspect is that there



was   evidence   that   Kamlesh   Rani   was   under   the   influence   of



Fortwin and Pethidine injections and was not supposed to be



having   normal   alertness.     In   our   view,   the   trial   Court   rightly



rejected   the   dying   declaration   altogether   shrouded   by



suspicious   circumstances   and   contrary   to   the   story   of



prosecution and acquitted the appellant.





                                                                               18


13)    It   is   settled   that   a   valid   and   well   reasoned   judgment   of



the   trial   Court   is   seldom   set   aside   unless   there   was   some



perversity   or   not   based   on   correct   law.       From   the   materials



available,   absolutely   there   was   no   case   to   presume   that   the



death of the deceased occurred at the hands of the appellant



especially,   when   her   statement   was   shrouded   by   suspicious



circumstances   and   contrary   to   the   claim   of   the   prosecution.



Particularly,   when   she   was   alleged   to   have   97%   burns   and



being   under   constant   sedatives   first   at   Civil   Hospital,



Naraingarh and then at PGI, Chandigarh, in such a situation



she   could   not   be   expected   to   make   a   statement   at   a   stretch



without   asking   any   questions.     Admittedly,   the   Executive



Magistrate,   PW-2   did   not   put   any   question   and   recorded   her



answers.



14)    Another important aspect relating to failure on the part of



prosecution   is   that   on   the   date   of   the   incident,   the   deceased



had   two   children   aged   about   six   and   four   years   respectively



and both of them were present there, admittedly, the I.O. has



not   enquired   them   about   the   genuineness   of   the   incident.



Though,   there   are   number   of   immediate   neighbours/co-





                                                                                 19


tenants   in   the   same   premises,   their   statements   were   not



recorded   which   means   that   nobody   supported   the   version   of



the   prosecution.     Though   there   is   neither   rule   of   law   nor   of



prudence that dying declaration cannot be acted upon without



corroboration   but   the   court   must   be   satisfied   that   the   dying



declaration is true and voluntary and in that event, there is no



impediment in basing conviction on it, without corroboration.



It is  the   duty  of   the   court   to   scrutinise   the   dying  declaration



carefully   and   must   ensure   that   the   declaration   is   not   the



result   of   tutoring,   prompting   or   imagination.     Where   a   dying



declaration is suspicious, it should not be acted upon without



corroborative   evidence.     Likewise,   where   the   deceased   was



unconscious   and   could   never   make   any   declaration   the



evidence   with   regard   to   it   is   rejected.     The   dying   declaration



which   suffers   from   infirmity   cannot   form   the   basis   of



conviction.   All these principles have been fully adhered to by



the trial Court and rightly acquitted the accused and on wrong



assumption   the   High   Court   interfered   with   the   order   of



acquittal.





                                                                              20


15)    It   is   the   consistent   stand   of   the   defence   from   the



beginning that the appellant had been falsely implicated, more



particularly, at the instance of I.O. Hira Lal (PW-11) who had a



previous   enmity   with   him   for   asking   some   bribe   for   running



his business of ghee.   As rightly pointed out, other witnesses



who accompanied the injured Kamlesh Rani did not make any



statement   involving   the   appellant   in   the   burning   of   Kamlesh



Rani till 29.06.1991.



16)    We are satisfied that the dying declaration was totally in



conflict   with   the   version   of   the   prosecution   as   to   the   time   of



her   burning,   relation   of   the   appellant   with   the   deceased,



except for the implication part, which was clarified in favour of



the   appellant   by   PW-10   Surinder   Singh   in   his   cross-



examination.     In   such   circumstances,   the   dying   declaration



was totally unacceptable, could not be believed as trustworthy,



which was rightly not believed so by the trial Court.



17)    Inasmuch   as   the   acquittal   by   the   trial   Court   and



conviction   by   the   High   Court   is   solely   based   on   the   dying



declaration, in view of our above discussion, there is no need



to  traverse  the  evidence and other  factual  details.   In view of





                                                                                  21


the   infirmities   pointed   above,   and   contradictions   as   to   the



occurrence, failure on the part of the Executive Magistrate in



obtaining certificate as to whether Kamlesh Rani had made a



voluntary   statement  and  not   attested by  any  doctor   and  also



his   statement   which   is   contradictory   to   that   of   the   deceased



Kamlesh Rani and of the fact that at the relevant time she was



under   the   influence   of   Fortwin   and   Pethidine   injections   and



was   not   supposed   to   be   having   normal   alertness,   as   rightly



observed by the trial Court, we hold that the dying declaration



Ex.PD   does   not   inspire   confidence   in   the   mind   of   the   Court.



Inasmuch   as   the   dying   declaration   is   the   only   piece   of



evidence   put   forward   against   the   accused   in   the   light   of   our



discussion   and   reasoning,   the   accused   -   Surinder   Kumar   is



entitled to the benefit of doubt.



18)        Consequently,   the   conviction   and   sentence   ordered   by



the High Court is set aside and the  order of acquittal  passed



by the trial Court is restored.   Since the appellant is on bail,



his bail bonds shall stand discharged.  The appeal is allowed.





     



                                        ..........................................J.



                                                                             22


                    (P. SATHASIVAM)                                




                                ...........................................J.

                                 (DR. B.S. CHAUHAN)

NEW DELHI;

OCTOBER 21, 2011        





                                                                  23

Whole Truth with P.S.Raman Part 7- "I was born a litigator, will die a l...

in the absence of arbitration agreement, no arbitration case can be filed - mere use of the word 'arbitration' or 'arbitrator' in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example, use of words such as "parties can, if they so desire, refer their disputes to arbitration" or "in the event of any dispute, the parties may also agree to refer the same to arbitration" or "if any disputes arise between the parties, they should consider settlement by arbitration" in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement. Similarly, a clause which states that "if the parties so decide, the disputes shall be referred to arbitration" or "any disputes between parties, if they so agree, shall be referred to arbitration" is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses require the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future."

 THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY           
Arbitration Application No.141 of 2010

18-07-2011

Ms.Jain Irrigation Systems Limited,Jalgaon, Maharashtra,Joint Managing Director
Shri Ajit Bhavarlal Jain

Ms.Satyam Computer Services Limited, Mahindra Satyam Infocity,Madhapur,  
Hyderabad

!COUNSEL FOR APPLICANT: Ms.C.Kodandaram, Senior Counsel        

COUNSEL FOR RESPONDENT: Ms.Shireen Sethana Baria        

:ORDER:


        This Arbitration Application has been taken out by the applicant under
sub-sections (5) & (6) of Section 11 of the Arbitration and Conciliation Act,
1996 (for short, "the Act"), r/w. Scheme for Appointment of Arbitrators, 1996,
seeking appointment of an arbitrator.

2.      The applicant-M/s.Jain Irrigation Systems Limited, is a company registered
under the Companies Act, 1956, engaged in the business of production and supply
of equipment used in irrigation projects.  The respondent-M/s. Satyam Computer
Services Limited is a company registered under the Companies Act, 1956, engaged
in the business of providing information technology services.  In order to
streamline the day-to-day activities of business, integrate and link all its
departments and have a single platform for having complete coordination with all
its departments, the applicant decided to implement SAP, which, in simple words
is a software that has to be integrated in a company's existing computer systems
for effective streamlining of the day-today business operations of the company.
Negotiations held between the applicant and the respondent and ultimately,
negotiations culminated in appointing the respondent as service provider of the
applicant for the purpose of implementation of MySAP ERP ECC 6.0 vide letter
dated 23.11.2007.  The said letter contained preliminary terms of the contract
such as scope of work, consideration, payment schedule, etc. The applicant paid
an amount of Rs.1,01,12,400/- to the respondent towards its remuneration for
providing the services required by the applicant.  An annual maintenance
agreement, dated 14.11.2008, also came to be executed between the parties.
According to the applicant, the respondent failed to carry out proper and timely
services in respect of MySAP implementation for the applicant and also failed to
honour the confidentiality agreement.  Thereupon, the applicant issued a notice,
dated 04.01.2010 to the respondent seeking return of an amount of
Rs.9,00,00,000/- apart from damages and compensation for wrongful abandonment
and breach of confidentiality. The applicant also indicated in the notice with
regard to invocation of arbitration clause and reference of disputes to
Mr.Bharat B. Jain, Advocate, as sole arbitrator.    The respondent received the
notice and remained non-responsive.  Thereupon, the applicant by notice, dated
21.01.2010, invoked the arbitration clause 14.2 of the agreement for services
and appointed Justice H.Suresh, Retd. Judge of Bombay High Court and sought for
consent of the respondent.  The respondent did not respond to the notice.  I
will complete the narration of facts set out in the application by referring
Paras.2-s and 5 of the affidavit filed in support of the application, which read
as hereunder:
        "2. s. The applicant states and submits that all previous attempts of an
amicable settlement and negotiations between the parties have failed. The
Applicant states that the Respondent has failed to honour the said
Confidentiality Agreement.  The Applicant states that the Respondent has also
failed to carry out proper and timely services in respect of MySAP
implementation for the Applicant and have failed to resolve the numerous issues
arising out of their faulty services and therefore, disputes and differences
have arisen between the parties.  The Applicant submits that there is no formal
written signed contract between the parties.  An agreement was reached between
the parties, but no document was executed by the parties.  Though there is no
written signed document, the agreement came into existence, as the parties have
acted upon the agreement.  The deponent is advised to state that a formal
written signed document not being present and available does not ipso facto
disentitle the applicant to invoke the Arbitration Clause in the present case."
        "5. The applicant states and submits that the said Agreement was abandoned
by the Respondent in or around December, 2008.  The said Agreement was rescinded  
by the Applicant vide its advocates' Notice dated 4th January, 2010.  The
Applicant invoked arbitration by its Notice, dated 21st January 2010 and the
same was received by the Respondent on 25th January, 2010 and the Respondent  
till date has not replied to the same.  Therefore, the Applicant has filed this
Application for appointment of sole Arbitrator for adjudication of disputes
between the parties. The cause of action of the present case arose on 23rd
November, 2007 when the Applicant appointed the respondent for implementation of
MySAP ERP ECC 6.0 and on 26th November, 2007 when the Respondent sent the said    
Agreement to the Applicant and on 19th February 2008 when the applicant signed
the Confidentiality Agreement and sent to respondent and on 30th September 2008
when the Applicant pointed out the defects to the Respondent and on 23rd
November 2008 when the Applicant requested  the respondent to solve the pending
issues pertaining to the services and on 28th November, 2008 when the Applicant
submitted the list of pending issues to the Respondent and on 18th November,
2009 when the Applicant once again pointed out the deficiencies to the
respondent and on 4th January 2010 when the advocates for the Applicant issues a
legal notice to the Respondent and on 21st January 2010 when the counsel for the
Applicant issued notice under section 21 of the Arbitration and Conciliation
Act, 1996 and the cause of action is continuing.  Hence, within limitation."

Hence, this Arbitration Application.

3.      Notice to the respondent came to be ordered on 07.09.2010.  The respondent
entered appearance through a counsel and filed counter-affidavit.

4.      It is stated in the counter-affidavit that the application is not
maintainable as there exists no arbitration agreement between the parties as
contemplated under Section 7 of the Act.  It is further stated in the counter-
affidavit that mutual discussions with regard to implementation of SAP project
has been culminated into a purchase/work order, dated 23.11.2007 placed by the
applicant with the respondent.  The said purchase/work order records that the
applicant intended to sign a MSA (Master Service Agreement) and a detailed SOW
(Statement of work) in the coming days. Pursuant to the said purchase/work
order, dated 23.11.2007, the respondent sent a standard MSA template vide its
mail dated 26.11.2007 to the applicant  and clearly conveyed that the applicant
would require to separately prepare SOW and incorporate the same with the
pricing and payment terms.  No agreement was ever executed for implementation of
SAP project due to urgency shown by the applicant and the respondent proceeded
on the basis of the purchase/work order, dated 23.11.2007.    As the project
progressed, the applicant sought undertaking from the respondent to maintain
confidentiality of proprietary information.  A letter of such a nature was
required by the applicant for the reason that the proposed MSA which was desired
to be executed between the parties did not fructify. If any such MSA was
executed between the applicant and the respondent, there was no occasion to give
such type of undertaking in as much as a confidentiality clause in an integral
part of any such MSA and would have covered the confidentiality terms.
Therefore, the respondent had sent a letter to the applicant on 19.02.2008  for
maintaining confidentiality.  The said letter does not refer to any agreement
much less arbitration agreement as alleged by the applicant.  Various
allegations made by the applicant against the respondent attributing lapses on
its part have been denied.  The various mails referred in the application are in
relation to maintenance support, for which AMS was to be executed, but was not
executed.  The applicant resorted to choosing arbitral proceedings over a suit
because of the heavy court fees required to be paid for such type of claims.  In
the present case, there is neither any arbitrable dispute nor any mandate
providing for arbitration.  Therefore, the Arbitration Application is liable to
be dismissed.

5.      The applicant filed a rejoinder.  It is stated in the rejoinder that the
arbitration agreement or agreements containing arbitration clause are valid and
subsisting even if the same are not formally executed by the parties thereto and
arbitration would lie there under.    The respondent by e-mail, dated 26.01.2008
forwarded the Master Services Agreement incorporating the arbitration clause at
Clause No.14 therein.  Therefore, it is clear that it was the intention of the
respondent, in case of any dispute, to refer the same to arbitration.    The
respondent carried out the work for the applicant and accepted the payment in
respect of the same and therefore, the respondent cannot dispute the existence
of a contract between the parties, which contains an arbitration clause.

6.      Heard Sri C.Kodandaram, learned senior counsel appearing for the applicant
and M/s Shireen Sethana Baria, learned counsel appearing for the respondent.

7.      Learned senior counsel appearing for the applicant submits that e-mails
emanating from the respondent indicate that it is the respondent who prepared
the agreement for services and sent for consent.  The respondent having sent the
agreement for services for consent of the applicant and having acted upon it and
received an amount of Rs.1,01,12,400/- cannot be permitted to resile from the
terms of the agreement, which included an arbitration clause.  In a way, his
contention is that the e-mail correspondences between the parties are enough
indication that the parties acted upon the terms of the agreement for service.
The learned senior counsel took me to the e-mail message, dated 26.11.2007. In
elaborating his arguments, learned senior counsel contends that the
correspondence between the parties and conduct of the respondent clearly
establish  that  the terms of Agreement  for service have been acted upon and
therefore, even in the absence of signature of the parties on the agreement for
service, the terms therein binds the parties.  His contention is that there is
an agreement in writing though not signed by both the parties, but by the course
of conduct of the parties, it can be spelt out that such an agreement is enough
to rely upon the arbitration clause referred to therein.  Learned senior counsel
by referring Clause 14.2 of the agreement for services, contends that disputes
between the parties are required to be resolved by taking recourse to the
provisions of the Act and indeed the applicant issued a notice, dated
04.01.2010, adverting to the attention of the respondent to the above referred
clause.  But the respondent having received the notice failed to reply. Learned
senior counsel also refers the notice, dated 21.01.2010 addressed to the
respondent where under the respondent is requested to give consent for
appointment of Justice H.Suresh, Retd. Judge of High Court of Bombay.  Learned
senior counsel, apart from placing reliance on the judgments of the Supreme
Court and Karnataka High Court, laid much stress on Section 7 (4)(b) of the Act
to buttress his submissions.

8.      Section 7 of the Act reads as hereunder:
"7.Arbitration Agreement.- (1) In this part, "arbitration agreement" means an
agreement by the parties to submit to arbitration all or certain disputes which
have arisen or which may arise between them in respect of a defined legal
relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause or in
the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in-
 (a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication
which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of the
agreement is alleged by one party and not denied by the other.

(5)The reference in a contract to a document containing an arbitration clause
constitutes an arbitration agreement if the contract is in writing and the
reference is such as to make that arbitration clause part of the contract."

9.      The judgments on which learned senior counsel placed reliance are:
1) Indowind Energy Ltd. v. Wescare(I) Ltd. & Anr.1
2) Jindal Thermal Power Company Ltd. v. Karnataka Power Transmission Corporation
Ltd.2
3) Smita Conductors Ltd. Euro Alloys Ltd.3
4) Great Offshore Ltd. v. Iranian Offshore Engg. & Construction Co.4
5) Shakti Bhog Foods Ltd. v. Kola Shipping Limited5
6) Trimex International Fze. Ltd. v. Vedanta Aluminium Ltd.6, and
7) Kollipara Sriramulu (dead) by his L.R. v. T.Aswatha Narayana (dead) by his
L.Rs. & Ors.7
10.     In Indowind Energy Ltd.'s case (1 supra), the Supreme Court while
interpreting the provisions of Section 7(4) of the Act, has observed that a
contract can be spelt out from correspondence or conduct. But an arbitration
agreement is different from a contract.  An arbitration agreement can come into
existence only in the manner contemplated under Section 7 of the Act.  If
Section 7 of the Act says that an arbitration agreement should be in writing, it
will not be sufficient for the petitioner in an application under Section 11 of
the Act to show that there existed an oral contract between the parties.  I deem
it appropriate to refer para.19 of the cited judgment, which reads as hereunder:
        "19. The scope of examination of the agreement dated 24.2.2006, by the
learned Chief Justice or his Designate under Section 11(6) is necessarily to be
restricted to the question whether there is an arbitration agreement between the
parties. The examination cannot extend to examining the agreement to ascertain
the rights and obligations regarding performance of such contract between the
parties. This Court in SBP and Co. v. Patel Engineering Limited [2005 (8) SCC
618] and in National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd. [2009 (1)
SCC 267] has held that when an application is filed under section 11, the Chief
Justice or his Designate is required to decide only two issues, that is whether
the party making the application has approached the appropriate court and
whether there is an arbitration agreement and whether the party who has applied
under section 11 of the Act, is a party to such agreement. Therefore, the Chief
Justice exercising jurisdiction under section 11 of the Act has to only consider
whether there is an arbitration agreement between the petitioner and the
respondent/s in the application under section 11 of the Act. Any wider
examination in such a summary proceeding will not be warranted."

11.     In Jindal Thermal Power Company Ltd.'s case (2 supra), a Division  Bench
of the Karnataka High Court while interpreting the Karnataka Electricity Reform
Act, 1999, has observed that concluded contract in terms of Explanation to
Section 19 and proviso to Section 27(2) of the Karnataka Electricity Reform Act,
1999, need not be in writing; it need not be in any particular form for the Act
does not prescribe any particular form; it need not be a formal agreement; it
need not be a PPA and it is restricted to tariff determination only.    In this
judgment, the Division Bench of the Karnataka High Court referred the judgment
of the Supreme Court in Kollipara Sriramulu's case (7 supra), wherein the
Supreme Court in para.3 of the judgment held:
        "We proceed to consider the next question raised in these appeals, namely
whether the oral agreement was ineffective because the parties contemplated the
execution of a formal document or because the mode of payment of the purchase
money was not actually agreed upon. It was submitted on behalf of the appellant
that there was no contract because the sale was conditional upon a regular
agreement being executed and no such agreement was executed, we do not accept  
this argument as correct. It is well-established that a mere reference to a
future formal contract will not prevent a binding bargain between the parties.
The fact that the parties refer to the preparation of an agreement by which the
terms agreed upon are to be put in a more formal shape does not prevent the
existence of a binding contract. There are. however, cases where the reference
to a future contract is made in such terms as to show that the parties did not
intend to be bound, until a formal contract is signed. The question depends upon
the intention of the parties and the special circumstances of each particular
case. As observed by the Lord Chancellor (Lord Cranworth) in Ridgway v. Wharton,
the fact of a subsequent agreement being prepared may be evidence that the
previous negotiations did not amount to a concluded agreement, but the mere fact
that persons wish to have a formal agreement drawn up does not establish the
proposition that they cannot be bound by a previous agreement". The Supreme
Court in the said judgment has extracted the observations of Parker, J. in the
case of Alexander, supra, extracted by lis supra, with approval.   Further, the
Supreme Court has also referred to the following observation of Lord Cairns in
Rossiter v. Miller, with approval: "if you find not an unqualified acceptance
subject to the condition that an agreement is to be prepared and agreed upon
between the parties, and until that condition is fulfilled no contract is to
arise then you cannot find a concluded contract".

12.     In Smita Conductors Ltd.'s case (3 supra), the Supreme Court held that
existence, validity or effect of an arbitration agreement can be determined by
the court at three stages: 1)before the arbitration proceedings commence, (2)
during their pendency, and (3) after the award is made and filed in the court.

13.     In Great Offshore Ltd.'s case (4 supra), the Supreme Court while
interpreting Section 7 of the Act, held that plain language of Section 7 does
not require that the parties stamp the agreement and nothing in Section 7 of the
Act suggests that the parties must sign every page of the agreement.  The
Supreme Court also observed that technicalities like stamps, seals and even
signatures are red tape that have to be removed before the parties can get what
they really want - an efficient, effective and potentially cheap resolution of
their dispute.    It would be improper and undesirable for the courts to add a
number of extra formalities not envisaged by the legislation.  The Courts'
directions should be to achieve the legislative intention.
14.     In Shakti Bhogi Foods Ltd.'s case (5 supra), the Supreme Court observed
that the existence of an arbitration agreement can be inferred from the document
signed by the parties or an exchange of letters, telex, telegrams or other means
of communication which provide a record of the agreement.

15.     In Trimex International Fze Ltd.'s case (6 supra), the Supreme Court
observed that once the contract is concluded orally or in writing, the mere fact
that a formal contract has to be prepared and initialed by the parties would not
affect either the acceptance of the contract so entered into or implementation
thereof, even if the formal contract has never been initialed.

16.     Learned counsel appearing for the respondent submits that the respondent
acted on the purchase order, dated 23.11.2007.  The purchase order does not
contain any arbitration clause and therefore, the question of reference of
disputes that have arisen between the parties relatable to the purchase order
does not arise.  He would also contend that what is communicated to the
applicant by the respondent is only a model form of agreement for services.  It
neither contained the name of the applicant nor signature of the respondent to
infer that the agreement has become a concluded contract.  He would also contend
that this template agreement sent to the applicant never fructified and even the
confidentiality agreement, dated 19.02.2008, does not refer to the agreement for
services i.e. Master Service Agreement.  The learned counsel appearing for the
respondent copiously refers the contents of the purchase order and
confidentiality agreement, dated 19.02.2008, to buttress his submissions that
there is no clause under which parties are required to get their disputes
adjudicated by taking recourse to the provisions of the Act.  He would also
contend that agreement for services of MySAP ERP ECC 6.0 is dated 14.11.2008.
By that time, the purchase order, dated 23.11.2007, came into existence and
therefore, it is beyond a comprehension that purchase order is pursuant to the
agreement for services.  The learned counsel by referring the decision of the
Supreme Court in Trimex International Fze Ltd.'s case ( 6 supra),  on which
reliance has been placed by the learned senior counsel appearing for the
applicant, submits that in the said decision, purchase order contains an
arbitration clause and whereas, purchase order issued by the respondent herein
does not contain any arbitration clause and therefore, the cited decision does
not in any way helpful to the applicant.  Learned counsel also submits that the
decision in Great Offshore Ltd.'s case (4 supra) is not applicable to the facts
of the case since the Supreme Court was dealing with a case where the agreement
was signed by the parties.  Coming to the facts of the case on hand, it is only
model form that has been communicated to the applicant by the respondent and the
name of the applicant is not indicated in the model form and therefore, it
cannot be inferred that the receipt of model form by the applicant amounts to a
concluded contract between the parties.  Learned counsel would also submit that
mere reference to MSA document in the e-mail sent to the applicant is not
sufficient to infer that there is a concluded contract pursuant to the agreement
for services.  In support of his submissions, reliance has been placed by the
learned counsel on the following judgments of the Supreme Court and the decision
of the Bombay High Court:
1) Shakti Bhog Foods Ltd. vs. Kola Shipping Ltd. (5 supra)
2) National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd.8
3) SBP & CO. v. Patel Engineering Ltd.9
4) Jagadish Chander v. Ramesh Chander & Ors.10  
5) M.R. Engineers & Contractors (P) Ltd. v. Som Datt Builders Ltd.11
6) Rajesh V. Choudhary v. Kshitij R. Torak & Ors.12

17.     In SBP & Co.'s case (9 supra), the Supreme Court identified and segregated
the preliminary issues that may arise for consideration in an application under
Section 11 of the Act into three categories viz., 1) issues which the Chief
Justice or his designate is bound to decide; (ii) issues which he can also
decide, that is, issues which he may choose to decide; and (iii) issues which
should be left to the Arbitral Tribunal to decide.

18.     In National Insurance Company Ltd. v. Boghara Polyfab Pvt. Ltd.'s case (8
supra), the Supreme Court referred the SBP & Co.'s case (9 supra) with approval.

19.     In Jagdish Chander's case (10 supra), the Supreme Court held that
existence of an arbitration agreement as defined under Section 7 of the Act is a
condition precedent for exercise of power to appoint an Arbitrator/Arbitral
Tribunal, under Section 11 of the Act by the Chief Justice or his designate.  It
is not permissible to appoint an arbitrator to adjudicate the disputes between
the parties in the absence of an arbitration agreement or mutual consent.
Para.8 of the cited judgment needs to be noted and it is thus:
        "This Court had occasion to refer to the attributes or essential elements
of an arbitration agreement in K K Modi v. K N Modi [1998 (3) SCC 573], Bharat
Bhushan Bansal vs. U.P. Small Industries Corporation Ltd. [1999 (2) SCC 166] and
Bihar State Mineral Development Corporation v. Encon Builders (I)(P) Ltd. [2003
(7) SCC 418]. In State of Orissa v. Damodar Das [1996 (2) SCC 216], this Court
held that a clause in a contract can be construed as an 'arbitration agreement'
only if an agreement to refer disputes or differences to arbitration is
expressly or impliedly spelt out from the clause. We may at this juncture set
out the well settled principles in regard to what constitutes an arbitration
agreement :
(i) The intention of the parties to enter into an arbitration agreement shall
have to be gathered from the terms of the agreement. If the terms of the
agreement clearly indicate an intention on the part of the parties to the
agreement to refer their disputes to a private tribunal for adjudication and an
willingness to be bound by the decision of such tribunal on such disputes, it is
arbitration agreement. While there is no specific form of an arbitration
agreement, the words used should disclose a determination and obligation to go
to arbitration and not merely contemplate the possibility of going for
arbitration. Where there is merely a possibility of the parties agreeing to
arbitration in future, as contrasted from an obligation to refer disputes to
arbitration, there is no valid and binding arbitration agreement.
(ii) Even if the words 'arbitration' and 'arbitral tribunal (or arbitrator)' are
not used with reference to the process of settlement or with reference to the
private tribunal which has to adjudicate upon the disputes, in a clause relating
to settlement of disputes, it does not detract from the clause being an
arbitration agreement if it has the attributes or elements of an arbitration
agreement. They are : (a) The agreement should be in writing. (b) The parties
should have agreed to refer any disputes (present or future) between them to the
decision of a private tribunal. (c) The private tribunal should be empowered to
adjudicate upon the disputes in an impartial manner, giving due opportunity to
the parties to put forth their case before it. (d) The parties should have
agreed that the decision of the Private Tribunal in respect of the disputes will
be binding on them.

(iii) Where the clause provides that in the event of disputes arising between
the parties, the disputes shall be referred to Arbitration, it is an arbitration
agreement. Where there is a specific and direct expression of intent to have the
disputes settled by arbitration, it is not necessary to set out the attributes
of an arbitration agreement to make it an arbitration agreement. But where the
clause relating to settlement of disputes, contains words which specifically
excludes any of the attributes of an arbitration agreement or contains anything
that detracts from an arbitration agreement, it will not be an arbitration
agreement. For example, where an agreement requires or permits an authority to
decide a claim or dispute without hearing, or requires the authority to act in
the interests of only one of the parties, or provides that the decision of the
Authority will not be final and binding on the parties, or that if either party
is not satisfied with the decision of the Authority, he may file a civil suit
seeking relief, it cannot be termed as an arbitration agreement.

(iv) But mere use of the word 'arbitration' or 'arbitrator' in a clause will not
make it an arbitration agreement, if it requires or contemplates a further or
fresh consent of the parties for reference to arbitration. For example, use of
words such as "parties can, if they so desire, refer their disputes to
arbitration" or "in the event of any dispute, the parties may also agree to
refer the same to arbitration" or "if any disputes arise between the parties,
they should consider settlement by arbitration" in a clause relating to
settlement of disputes, indicate that the clause is not intended to be an
arbitration agreement. Similarly, a clause which states that "if the parties so
decide, the disputes shall be referred to arbitration" or "any disputes between
parties, if they so agree, shall be referred to arbitration" is not an
arbitration agreement. Such clauses merely indicate a desire or hope to have the
disputes settled by arbitration, or a tentative arrangement to explore
arbitration as a mode of settlement if and when a dispute arises. Such clauses
require the parties to arrive at a further agreement to go to arbitration, as
and when the disputes arise. Any agreement or clause in an agreement requiring
or contemplating a further consent or consensus before a reference to
arbitration, is not an arbitration agreement, but an agreement to enter into an
arbitration agreement in future."

20.     In M.R.Engineering & Contractors Pvt. Ltd.'s case (11 supra),  the Supreme
Court held that the wording of Section 7(5) of the Act makes it clear that a
mere reference to a document would not have the effect of making an arbitration
clause from that document, a part of the contract.   There should be a special
reference indicating a mutual intention to incorporate the arbitration clause
from another document into the contract.  The exception to the requirement of
special reference is where the referred document is not another contract, but a
standard form of terms and conditions of trade associations or regulatory
institutions which publish or circulate such standard terms and conditions for
the benefit of the members or others who want to adopt the same.   Section 7(5)
of the Act, therefore, requires a conscious acceptance of the arbitration clause
from another document, by the parties, as a part of their contract, before such
arbitration clause could be read as a part of the contract between the parties.
The scope and intent of Section 7(5) of the Act is summarized in the above
referred decision as hereunder:
        "The scope and intent of section 7(5) of the Act may therefore be
summarized thus:
(i) An arbitration clause in another document, would get incorporated into a
contract by reference, if the following conditions are fulfilled : (1) The
contract should contain a clear reference to the documents containing
arbitration clause, (2) the reference to the other document should clearly
indicate an intention to incorporate the arbitration clause into the contract,
(3) The arbitration clause should be appropriate, that is capable of application
in respect of disputes under the contract and should not be repugnant to any
term of the contract.

(ii) When the parties enter into a contract, making a general reference to
another contract, such general reference would not have the effect of
incorporating the arbitration clause from the referred document into the
contract between the parties. The arbitration clause from another contract can
be incorporated into the contract (where such reference is made), only by a
specific reference to arbitration clause.

(iii) Where a contract between the parties provides that the execution or
performance of that contract shall be in terms of another contract (which
contains the terms and conditions relating to performance and a provision for
settlement of disputes by arbitration), then, the terms of the referred contract
in regard to execution/performance alone will apply, and not the arbitration
agreement in the referred contract, unless there is special reference to the
arbitration clause also.

(iv) Where the contract provides that the standard form of terms and conditions
of an independent Trade or Professional Institution (as for example the Standard
Terms and Conditions of a Trade Association or Architects Association) will bind
them or apply to the contract, such standard form of terms and conditions
including any provision for arbitration in such standard terms and conditions,
shall be deemed to be incorporated by reference. Sometimes the contract may also
say that the parties are familiar with those terms and conditions or that the
parties have read and understood the said terms and conditions.

(v) Where the contract between the parties stipulates that the Conditions of
Contract of one of the parties to the contract shall form a part of their
contract (as for example the General Conditions of Contract of the Government
where Government is a party), the arbitration clause forming part of such
General Conditions of contract will apply to the contract between the parties."

21.     Keeping in view the proposition of law laid down in the above referred
decisions, let me examine whether the correspondence between the parties infer
that the parties are mutually agreed for adjudication of their disputes by
taking recourse to the provisions of the Act.  It is not in dispute that there
is no formal written, signed contract between the parties.   Indeed, this fact
has been stated by the applicant in para.2-s of the affidavit filed in support
of the application, which has been extracted supra.  The purchase order
emanating from the respondent is dated 23.11.2007.  This purchase order came to
be issued after due deliberations and before the parties signing on MSA.  The
purchase order does not contain any arbitration clause.  After the purchase
order, Varghese Pappachan, on behalf of the respondent, sent certain e-mail
messages to the applicant.   Those e-mail messages find place at page.20 of the
application.  What all he stated is that MSA template requires certain
modifications and it is the respondent, who would prepare the MSA document and
SOW (Statement of Work) and mailing to the applicant for review and consent.
The proforma agreement for service has been mailed to the applicant by the
respondent.  Copy of the proforma agreement  finds place at page. 22 of the
material papers.  Even the name of the applicant does not figure in the proforma
agreement and it does not contain the signature of the respondent.  It is only a
format which is required to be considered by the applicant and communicate its
consent and thereafter, it has to take the shape of contract.  Till then, it
remains only a format.  The nature of work between the parties is governed by
purchase order and confidentiality agreement.  It is the contention of the
learned senior counsel that confidentiality agreement is pursuant to the format
agreement for service.  I do not see any substance in his contention. The format
contains a confidentiality clause i.e. 7.1.  If the parties intend that the
terms and conditions mentioned in the format have reached consciousness, there
was no need for the respondent to execute confidentiality agreement, dated
19.02.2008.  The very fact that the respondent executed confidentiality
agreement, dated 19.02.2008, indicates that there was no consciousness among the
parties in response to the terms and conditions stipulated in the format of
agreement for service.  A reading of the purchase order, copy of which finds
place at page. No.18 of the material papers, and so also the confidentiality
agreement, copy of which finds place at page No.36 of the material papers, does
not indicate that the disputes between the parties are required to be settled by
taking recourse to the provisions of the Act.  The e-mail messages emanating
from the respondent do not give any clue that the terms of MSA have been
accepted and acted upon.  Therefore, I find that the applicant failed to
establish that there is an arbitration agreement between the parties, in which
case, the application is liable to be dismissed.
22.     Accordingly, the Arbitration Application is dismissed.  No costs.

?1 AIR 2010 SC 1793
2 2004 ILR (Kar.) 3463
3 (2001) 7 SCC 728
4 (2008) 14 SCC 240
5 (2009) 2 SCC 134
6 (2010) 3 SCC 1
7 (1968) 3 SCR 387 = AIR 1968 SC 1028  
8 (2009) 1 SCC 267
9 (2005) 8 SCC 618
10 (2007) 5 SCC 719
11 (2009) 7 SCC 696
12 (decided on 06.08.2010 in A.A.No.135 of 2007)