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In fact, submits Mr. Sibal, prayer (xiv) in the Statement of Claim filed by the F-1 Family Group in the earlier arbitral proceedings was wide enough to subsume the prayers in the present suit.

32. Mr. Sibal seriously contests the submission of Mr. Sudhir Chandra that the dispute forming part of the said present proceedings was in the nature of an action in rem. He submits that there is a distinction between rights in rem and actions in rem.The present dispute, he submits, is an action in personam, which is arbitrable in nature. He has relied, for this purpose, on Ministry of Sound9, Lifestyle Equities1, Lifestyle Equities v. Q Dseatoman19, Booz Allen2, Eros International Media Ltd v. Telemax Links India Pvt Ltd20, as well as certain passages from The Law and Practice of Arbitration & Conciliation by O. P. Malhotra, Commercial Arbitration by Mustill & 19 2018 SCC OnLine SC 638 20 2016 SCC OnLine Bom 2179 Boyd and Redfern & Hunter's International Arbitration. Referring, for the said purpose, on the judgement of the High Court of Bombay in Rakesh Malhotra v. Rajinder Kumar21, Mr. Sibal submits that the present suit is merely a "dressed up" action, intended to circumvent the arbitral process.

76.6. However, the aforesaid principles have to be applied with care and caution as observed Olympus Superstructures (P) Ltd. v. Meena Vijay Khetan30 (SCC p. 669, para 35) "35. ... Reference is made there to certain disputes like criminal offences of a public nature, disputes arising out of illegal agreements and disputes relating to status, 30 (1999) 5 SCC 651 such as divorce, which cannot be referred to arbitration. It has, however, been held that if in respect of facts relating to a criminal matter, say, physical injury, if there is a right to damages for personal injury, then such a dispute can be referred to arbitration (Keir v. Leeman31). Similarly, it has been held that a husband and a wife may refer to arbitration the terms on which they shall separate, because they can make a valid agreement between themselves on that matter (Soilleux v. Herbst32,Wilson v. Wilson33,and Cahill v. Cahill34)."

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144. As observed earlier, Patel Engineering Ltd.37 explains and holds that Sections 8 and 11 are complementary in nature as both relate to reference to arbitration. Section 8 applies when judicial proceeding is pending and an application is filed for stay of judicial proceeding and for reference to arbitration. Amendments to Section 8 vide Act 3 of 2016 have not been omitted. Section 11 covers the situation where the parties approach a court for appointment of an arbitrator. Mayavati Trading Private Ltd.38, in our humble opinion, rightly holds that Patel Engineering Ltd.37 has been legislatively overruled and hence would not apply even post omission of sub-section (6-A) to Section 11 of the Arbitration Act. Mayavati Trading Private Ltd.38 has elaborated upon the object and purposes and history of the amendment to Section 11, with reference to sub- section (6-A) to elucidate that the Section, as originally enacted, was facsimile with Article 11 of the UNCITRAL Model of law of arbitration on which the Arbitration Act was drafted and enacted. Referring to the legislative scheme of Section 11, different interpretations, and the Law Commission's Reports, it has been held that the omitted sub- section (6-A) to Section 11 of the Arbitration Act would continue to apply and guide the courts on its scope of jurisdiction at stage one, that is the pre-arbitration stage. Omission of sub-section (6-A) by Act 33 of 2019 was with the specific object and purpose and is relatable to by substitution of sub-sections (12), (13) and (14) to Section 11 of the Arbitration Act by Act 33 of 2019, which, vide sub-section (3A) stipulates that the High Court and this court shall have the power to designate the arbitral institutions which have been so graded by the Council under Section 43-I, provided where a graded arbitral institution is not available, the concerned High Court shall maintain a panel of arbitrators for discharging the function and thereupon the High Court shall perform the duty of an arbitral institution for reference to the arbitral tribunal. Therefore, it would be wrong to accept that post omission of sub-section (6-A) to Section 11 the ratio in Patel Engineering Ltd.37 would become applicable.

Conclusion

53. As a result, the prayer for referring the disputes, in the suit, to arbitration, is allowed. Resultantly, the dispute in CS (Comm) 98/2020 is referred to arbitration. The parties would be at liberty to proceed to appoint the arbitrator/arbitrators, in accordance with the covenants of the FSA and TMNA and/or approach this Court in that regard.