[2025:RJ-JP:1731] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Arbitration Application No. 75/2024 M/s Creative Triangle (JV), having Its Registered Office At SB-154, 5Th Floor, Ganga Heights, Bapu Nagar, Tonk Road, Jaipur (Rajasthan) Through Its Authorized Representative Sohan Lal Sharma. ----Applicant Versus RajCOMP Info Services Ltd. (RISL), First Floor, C-Block, Yojana Bhawan, Tilak Marg, C-Scheme, Jaipur-302005 (Raj.) Through Its Managing Director. ----Respondent For Petitioner(s) : Mr. Aditya Vijay, Mr. N. S. Bhati For Respondent(s) : Mr. Udit Sharma HON'BLE MR. JUSTICE SUDESH BANSAL Order 17/01/2025 1. Applicant has filed instant arbitration application under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator to resolve the dispute arisen between the parties. 2. The applicant has come up with a case that pursuant to the NIB dated 14.03.2018, floated by the respondent, applicant as JV was declared as successful bidder and after issuance of Letter of Intent dated 07.05.2018, the work order dated 31.05.2018 was awarded to the applicant. In respect of such work order, the applicant has raised a dispute for not providing the unencumbered site and further due to the stay orders passed by the Court from time to time, the progress of work was hindered, however the applicant after vacation of stay order performed the pending work but respondent has held the applicant, guilty for delay and [2025:RJ-JP:1731] (2 of 6) [ARBAP-75/2024] negligent in not completing the work order within scheduled time due to which the bank guarantee furnished by the applicant has not been released as also the accounts for due bills of applicant have not been settled. 3. It has been pointed out that as per Clause 43 GCC, the dispute arising out of the contract shall be settled by the Arbitrator according to the provisions of Arbitration and Conciliation Act, 1996. For ready reference, the Clause 43 reads as under:- "43. Settlement of Disputes Any dispute existing out of contract shall be settled according to the provisions of arbitration and conciliation Act, 1996" 4. Counsel for the applicant submits that the applicant invoked the arbitration agreement as contained in Clause 43 referred hereinabove, by serving a notice dated 14.02.2024 and proposed the name of Arbitrator but the respondent did not extend its consent for appointment of Arbitrator, hence, the instant arbitration application has been filed on 24.06.2024. 5. On behalf of respondent, reply to the arbitration application has been filed, accepting the awarding of work order dated 31.05.2018 in favour of applicant but the dues claimed by the applicant have been categorically denied. Nevertheless, in view of the reply of the respondent to the arbitration application, it is apparent that the dispute between the parties in respect of settlement of accounts has arisen. Counsel for the respondent does not dispute about existence of arbitration agreement between the parties for settlement of dispute through arbitration as per Clause 43 of GCC. [2025:RJ-JP:1731] (3 of 6) [ARBAP-75/2024] 6. The scope of the High Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 is confined to look into the existence of dispute and an arbitration agreement between the parties. The High Court, being a referral Court while dealing with the application for appointment of Arbitrator, exercises its jurisdiction within a narrow compass in the light of provision of Section 11(6A) of the A&C Act, 1996, which reads as under:- “(6A) 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.” 7. In the recent judgment of Hon'ble Supreme Court in case of SBI General Insurance Co. Ltd. Vs. Krish Spinning: [Civil Appeal No.7821/2024 arising out of SLP (C) No.3792/2024] delivered on 18th July, 2024, in respect of scope of the High Court while dealing with the arbitration application in context of Section 11(6A) of the A&C Act, 1996, it has been held and observed by Hon'ble Supreme Court in following paras as under:- "110. The scope of examination under Section 11(6-A) is confined to the existence of an arbitration agreement on the basis of Section 7. The examination of validity of the arbitration agreement is also limited to the requirement of formal validity such as the requirement that the agreement should be in writing. 111. The use of the term 'examination' under Section 11(6- A) as distinguished from the use of the term 'rule' under Section 16 implies that the scope of enquiry under section [2025:RJ-JP:1731] (4 of 6) [ARBAP-75/2024] 11(6-A) is limited to a prima facie scrutiny of the existence of the arbitration agreement, and does not include a contested or laborious enquiry, which is left for the arbitral tribunal to 'rule' under Section 16. The prima facie view on existence of the arbitration agreement taken by the referral court does not bind either the arbitral tribunal or the court enforcing the arbitral award. 112. The aforesaid approach serves a two-fold purpose - firstly, it allows the referral court to weed out non-existent arbitration agreements, and secondly, it protects the jurisdictional competence of the arbitral tribunal to rule on the issue of existence of the arbitration agreement in depth. 113. Referring to the Statement of Objects and Reasons of the Arbitration and Conciliation (Amendment) Act, 2015, it was observed in In Re: Interplay (supra) that the High Court and the Supreme Court at the stage of appointment of arbitrator shall examine the existence of a prima facie arbitration agreement and not any other issues. The relevant observations are extracted hereinbelow: "209. The above extract indicates that the Supreme Court or High Court at the stage of the appointment of an arbitrator shall "examine the existence of a prima facie arbitration agreement and not other issues". These other issues not only pertain to the validity of the arbitration agreement, but also include any other issues which are a consequence of unnecessary judicial interference in the arbitration proceedings. Accordingly, the "other issues" also include examination and impounding of an unstamped instrument by the referral court at the Section 8 or Section 11 stage. The process of examination, impounding, and dealing with an unstamped instrument under the Stamp Act is not a timebound process, and therefore does not align with the stated goal of the Arbitration Act to ensure expeditious and time-bound appointment of arbitrators.[...]" (Emphasis supplied) 114. In view of the observations made by this Court in In Re: Interplay (supra), it is clear that the scope of enquiry at the stage of appointment of arbitrator is limited to the scrutiny of prima facie existence of the arbitration agreement, and nothing else. For this reason, we find it difficult to hold that the observations made in Vidya Drolia (supra) and adopted in NTPC v. SPML (supra) that the jurisdiction of the referral court when dealing with the issue of "accord and satisfaction" under Section 11 extends to [2025:RJ-JP:1731] (5 of 6) [ARBAP-75/2024] weeding out ex-facie non-arbitrable and frivolous disputes would continue to apply despite the subsequent decision in In Re: Interplay (supra)." (Emphasis supplied) 8. In view of above, this Court is of considered opinion that the dispute between parties is required to be referred to the arbitral tribunal for adjudication/ settlement of dispute and counsel for both the parties are agreeable for appointment of Hon’ble Mr. Justice Alok Sharma, former judge of the Rajasthan High Court, as a sole Arbitrator. 9. Accordingly, the instant arbitration application succeeds and is hereby allowed and this Court appoints Hon’ble Mr. Justice Alok Sharma, former judge of the Rajasthan High Court, Address:- K- 39, Income Tax Colony, Tonk Road, Jaipur; Mobile No.9829064064; E-mail:- asharma.jaipur57@gmail.com, as Arbitrator to adjudicate the dispute between parties in accordance with provisions of the Arbitration and Conciliation Act, 1996. 10. The appointment of the Sole Arbitrator is subject to the declarations being made under Section 12 of the Arbitration & Conciliation Act, 1996 with respect to independence and impartiality, and the ability to devote sufficient time to complete the arbitration within the prescribed period. 11. The arbitration fee of the Sole Arbitrator shall be payable in accordance with the provisions contained in the Manual of Procedure for Alternative Dispute Resolution, 2009 as amended by the Manual of Procedure for Alternative Dispute Resolution (Amendment), 2017 vide notification dated 23.03.2017 read with [2025:RJ-JP:1731] (6 of 6) [ARBAP-75/2024] 4th Schedule appended to the Act of 1996 or as determined by the Arbitrator with consensus of parties. 12. The Registry is directed to intimate Arbitrator Hon’ble Mr. Justice Alok Sharma (Former Judge of High Court), for his approval and consent to act as Arbitrator. 13. All other issues may be raised by the parties before the Arbitrator, which shall be considered in accordance with law. 14. Since as per Section 29A of the Arbitration and Conciliation Act, 1996, the arbitration proceedings are required to be concluded within scheduled time as stipulated therein, it is expected from the parties to appear before the Arbitrator on 09.02.2025 or any other date as informed by the Arbitrator to parties or agreed between parties with the consent of Arbitrator, and further parties shall provide their respective E-mail/ Contact Number/ Mobile Number as also of their authorized representatives/lawyers, appearing on their behalf before the Arbitration Tribunal, in order to facilitate the Arbitrator to send information to the parties, whenever required. The information sent by the Arbitrator, on such address/ E-mail/ cellphone of the parties/ their authorized representatives/lawyers, shall be treated as sufficient unless same is not changed. 15. The instant arbitration application stands disposed of accordingly. (SUDESH BANSAL),J TN/278