SASAN POWER LIMITED v. NORTH AMERICAN COAL CORPORATION INDIA PRIVATE LIMITED

26. Mere reading of Section 45 would go to show that the use of the words "shall" and "refer the parties to arbitration" in the section makes it legally obligatory on the Court to referthe parties to the arbitration once it finds that the agreement in question is neither nut I and void nor inoperative and n~r incapable of being performed. In other words, once it is found that the agreement in question is a legal and valid agreement, G which is capable of being performed by the parties to the suit, the Court has no discretion but to pass an order by referring the parties to the arbitration in terms of the agreement.

27. In this case, I find that the Trial Court though allowed the H

850 SUPREME COURT REPORTS [2016] 6 S.C.R.

A application filed by the respondent (defendant) under Section 45 of the Act by rl!cording the findings that the agreement in question is legal and proper and capable of being performed but it did not pass any consequ~ntial order as required under Section 45 by referring the parties to the arbitration in terms of Section 12.2(a) and instead simply dismissed the suit as not maintainable. B 2R. In our view, the order thus needs a modification to this extent only so as to make the order in conformity with the requirement of Section 45 of th.! Act.

29. In the light of foregoing discussion and subject to aforesaid c modification of the impugned order, I entirely agree with the reasoning and the conclusion arrived at by my learned Brother.

Nidhi Jain Appeal dismissed.