Court No. - 42 Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 39 of 2023 Applicant :- Kaila Devi Stone Implex Opposite Party :- M/S Aadideva Infratech Pvt. Ltd. Counsel for Applicant :- Abhijeet Mukherji Hon'ble Mahesh Chandra Tripathi, J. 1. Pursuant to notices issued earlier, none has appeared on behalf of the opposite party. Service was deemed sufficient on 23.02.2024. Accordingly, the matter has been proceeded. 2. Heard Sri Abhijeet Mukherji, learned counsel for the petitioner. 3. This is an application filed under Section 11 of the Arbitration & Conciliation Act, 1996, seeking appointment of an independent arbitrator for resolution of the disputes between the parties. 4. It is contended that the applicant is dealing with the business of granite and marble supply in the region of Noida and Greater Noida. The opposite party is a company, which is involved in development of infrastructure in the national capital region. The opposite party owing to the requirement of supply of products i.e. granite and marble entered into an oral agreement with the applicant in March, 2019. After due negotiations and discussions, the oral agreement translated into a purchase order between the applicant and the opposite party. The opposite party issued its first purchase order on 06.05.2019 with payment term of clearance within 90 days from the receipt of invoice. It was agreed that the terms of the first purchase order shall be continued and shall be applicable in all subsequent purchase order and supplies thereof. The purchase order also contained an arbitration clause, which for ready reference is reproduced as under:- "Settlement of Dispute All disputes arising out of or in connection with this MOU/orders/contract, present cum Future, including any question regarding its existence, validity or termination, shall, unless amicably settled between the parties, at the request of the aggrieved party in writing, shall be first referred to the sole arbitration of the person nominated and appointed by the Director of the Purchaser Company before going to any legal platform available. The parties of the MOU/ Order/Contract agree that neither of them shall have/raise any objection to any such appointment of the sole arbitrator. The Sole Arbitrator to whom the matter is originally referred or being transferred on having vacated his office or being unable to act for any reason whatsoever, the Director of Purchaser Company, as aforesaid at the time of such transfer, vacation of office or inability to act, shall appoint another person to act as arbitrator in accordance with the terms of the Order/Contract. Such person, as and when appointed, shall proceed with the reference from the stage at which it was left by his predecessor in accordance with the rules, regulations and the law of the land. It is also a specific term of this contract duly agreed by both the parties that no person than a person..." 5. Since certain dispute has arisen between the parties, the applicant invoked the arbitration clause between the parties by means of notice dated 12.10.2022. Since after several notices and reminders, the opposite party has not turned up as per the arbitration clause mentioned in the purchase order, the applicant has preferred the instant application for appointment of an arbitrator to settle the dispute between the parties as per the provisions of the Indian Arbitration and Conciliation Act, 1996. 6. At present, upon perusal of the record- mainly, the copy of the agreement, statutory notice and its reply, it is clear that there exists an arbitration clause between the parties with respect to the disputes arising in the matter. Despite issuance of statutory notice, the parties have neither been able to appoint an arbitrator nor have they been able to constitute an Arbitral Tribunal. 7. The provisions of Section 11(6) of the Act, 1996 prior to its amendment was as follows:- 11. Appointment of Arbitrators.-......... (6) Where, under an appointment procedure agreed upon by the parties,- (a) a party fails to act as required under that procedure; or(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the 2 necessary measure, unless the agreement on the appoint procedure provides other means for securing the appointment. 8. The scope of the power under Section 11(6) of the Act, 1996 was considerably wide in view of the decisions in SBP and Co. v. Patel Engg. Ltd.1 and National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd.2. This position continued till the amendment brought about in 2015. 9. However, this section was amended and Section 11(6-A) added by the 2015 Amendment, is as follows: "11. (6-A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any court, confine to the examination of the existence of an arbitration agreement." 10. From a reading of the amended Section 11(6-A), the intention of the legislature is crystal clear i.e. the court should only look into one aspect, that is the existence of an agreement and the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement. 11. Supreme Court in the case of Duro Felguera, S.A. Vs. Gangavaram Port Ltd.3 has held that : "After the amendment, all that the courts need to see is whether an arbitration agreement exists-nothing more, nothing less. The legislative policy and purpose is essentially to minimise the Court's intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11(6-A) ought to be respected." 12. Having heard learned counsel for the applicant, the scope of the present proceedings under Section 11 of the Act does not require any elaboration in view of that position in law having been clarified by a recent three judge decision of the Supreme Court in the case of M/S Mayavati Trading Pvt. Ltd. Vs. Pradyuat Deb Burman4. 1 (2005) 8 SCC 618 2 (2009) 1 SCC 267 : (2009) 1 SCC (Civ.) 117 3 2017(9) SCC 729 4 Civil Appeal no.7023 of 2019, decided on 05.09.2019 3 13. Hon'ble Supreme Court in the matter of Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd.5 held that "In view of the legislative mandate contained in Section 11(6-A), the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issues are left to be decided by the arbitrator under Section 16, which enshrines the kompetenz-kompetenz principle". This has been further reiterated by the Hon’ble Supreme Court in its later judgments which are as under :- (i) SBI General Insurance Company Ltd. vs. Krish Spinning6 (ii) Vidya Drolia & others vs. Durga Trading Corporation7 (iii) DLF Home Developers Ltd. vs. Rajapura Homes (P) Ltd.8 (iii) Indian Oil Corporation Limited v. NCC Limited9 15. After going through the record the Court is, prima facie, satisfied that there exists dispute between the parties and further there exists an arbitration clause, between the parties. Also, it is clear that the parties have not been able to appoint a consented arbitrator and therefore, the appointing authority has to be assumed by this Court upon the present application being brought before this Court. 16. At the same time, no final conclusion is being drawn on any of the objections that may be raised by the opposite party, in view of the law noted above, it is open for the parties to raise all the issues before the Arbitrator as permissible under the law and further it would remain open to the opposite party to raise objections as to the competence of the arbitral tribunal and all other pleas as the Act permits. 17. Leaving all such course completely open to the respective parties, at present, only a forum is being provided for a claim to be raised and resisted in accordance with law. 5 (2020) 2 SCC 455 6 2023 INSC 7 (2021) 2 SCC 1 8 (2021) 16 SCC 743 9 (2023) 2 SCC 539 4 18. Accordingly, Mr. Justice Sunil Ambwani (Retd. Chief Justice), residing at C-33, FF, Nizamuddin East, New Delhi-110013, (Mobile No.9415238954), be appointed the sole arbitrator for resolution of the disputes between the parties. Subject to his consent under Section 11(8) of the Act, the parties agree to request the learned arbitrator to conduct the proceedings at New Delhi. 19. The Registry is directed to obtain consent of the proposed learned arbitrator, in terms of Section 11(8) of the Act. 20. List on 07.04.2025. (Mahesh Chandra Tripathi,J.) Order date : 7.3.2025 SP/ 5 Digitally signed by :- SURYA PRAKASH High Court of Judicature at Allahabad