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6. Shri V.K. Tankha, learned Senior Counsel for the appellant, referred to the governing law clauses as appearing in the Association Agreement dated 1.1.2009; the dispute resolution mechanism through Arbitration as provided under Section 12.2; the Terms and Conditions of the Assignment Agreement dated 1.4.2011; and, tried to indicate that once the respondent/Company stepped into the shoes of the US Company, after it had transferred all its rights and obligations under the Association Agreement to the Indian Company, the Contract in question becomes one between two Indian Companies and in the light of the law laid down in the case of TDM Infrastructure Private Limited (supra), the Arbitration through the ICC in United Kingdom, London, that also in accordance to the laws applicable in United Kingdom is not permissible. Learned Senior Counsel placed much emphasis on the ground that two Indian Companies cannot agree to have their dispute resolved outside India in the manner done and, therefore, the arbitration agreement is null, void and inoperative.

9- It was stated that the learned District Judge misconstrued the entire Assignment Agreement and held it to be tri-partite agreement between NACC US; NACC India and the appellant Company, this is unsustainable under law. It is stated that signature of NACC US in the Assignment Agreement was not as a party to the Agreement, but it was only to the effect of excluding or relinquishing its rights and obligations as contained in the Associate Agreement and also for assigning the same to the Indian Company. It was stated that the learned District Judge by holding that the assignment agreement is a tri-partite agreement between two Indian Companies, a US Company and consequently holding that in view of this, it is an International Commercial Arbitration and section 45 is applicable, has misconstrued itself and has recorded a perverse finding contrary to law. Learned Senior Counsel further argued that section 12 of the Association Agreement is null, void and inoperative as contemplated under section 45 of the Act of 1996, because two Indian Companies cannot arbitrate in a foreign country and cannot subject their contract to be under a Foreign Law. Detailed submissions were made in this regard as asserted from paragraph 46 onwards, in the written arguments, submitted by Shri Vivek Tankha, placing reliance on the case of TDM Infrastructure Private Limited (supra) it is said that the two Indian Companies/nationals cannot be permitted and should not be permitted to derogate from Indian Law.

12- By referring to paragraph 63 of the written submissions, learned Senior Counsel tried to indicate as to how the judgment in the case of Atlas Export Industry (supra) will not apply. It was tried to be submitted that in the case of Atlas Export Industry (supra), the agreement was between two Indian nationals and a foreign company based in Hong Kong and it was decided on the basis of the principle underlying the Arbitration Act, 1940, which is entirely different from the Act of 1996 and, therefore, the judgment in the case of Atlas Export Industry (supra) was not applicable. 13- It was argued by Shri Vivek Tankha, learned Senior Advocate, that the entire dispute resolution clause contained in Section 12 of the Association Agreement should be declared as void, null and inoperative as it cannot be severed from the other parts of the Agreement. It was emphasized that reliance placed by the learned District Judge on the judgments of the Supreme Court in the case of Enercon (India) Private Limited and others Vs. Enercon GMBH and Another, 2014 (5) SCC 1; and, Chloro Control India Private Limited Vs. Severn Trent Water Purification Inc and others, (2013) 1 SCC 641, to hold that section 45 is applicable is an incorrect and illegal finding and by pointing out how the judgments rendered in the cases of Enercon (India) Private Limited (supra) and Chloro Control India Private Limited (supra) will not apply in the facts and circumstances of the present case. Detailed submissions were made by referring to the written arguments from paragraph 65 onwards.

52- Shri V.K. Tankha, learned Senior Advocate, tried to indicate that Atlas Exports (supra) case was rendered in a proceeding held under the Arbitration Act, 1940 which is entirely different from the Act of 1996 and, therefore, the said judgment will not apply in the present case. Instead, the judgment in the case of TDM Infrastructure (supra) would be applicable.

53- We cannot accept the aforesaid proposition. Shri Anirudh Krishnan, learned counsel, had taken us through the provisions of both the Act of 1940 and the Act of 1996, and thereafter he had referred to the judgment of the Supreme Court in the case of Fuerst Day Lawson Limited (supra), where after a detailed comparison of various sections of both the Acts, from paragraphs 65 onwards, Hon’ble Supreme Court discussed the provisions of both Acts, and finally has observed that there is not much of a difference between them. If the aforesaid judgment in the case of Fuerst Day Lawson Limited (supra) is considered, the same holds that both, the Act of 1980 and 1996 are identical and the Hon’ble Court has also indicated the similarity in both the Acts. That being so, we see no reason as to why the principle laid down of Atlas Exports (supra), which is by a Larger Bench i.e…. Division Bench, should not be applied particularly in the light of the law of precedent as laid down in the case of A.R. Antulay (supra). The contention of Shri V.K. Tankha, learned Senior Advocate, that the learned District Judge relied upon the judgment in the case of Atlas Exports (supra) and refused to rely upon the case of TDM Infrastructure (supra) only because it is by a Single Bench is not convincing or acceptable, as the Division Bench Judgment in the case of Atlas Exports (supra) is a binding precedent and once it is held in the aforesaid case that two Indian companies can agree to arbitrate in a foreign country and the same is not hit by public policy, we see no error in the order passed by the learned District Judge.