EVOLUTIONARY SYSTEMS PRIVATE LIMITED Vs. MAHIRALI SAIYED

JUDGEMENT

(1.) Present petitions are filed under sec. 11(6) of the Arbitration and Conciliation Act , 1996 seeking for appointment of an Arbitrator contending inter alia that under the agreement dtd. 3/2/2020 entered into between petitioner and respondent, it was agreed that if there were to be any dispute arising out of said agreement, it would be resolved through arbitration and on account of said agreement, notice was issued to the respondent on 3/1/2022 and there is no response to the same and hence, petitioner is seeking for appointment of an arbitrator.

(2.) In order to examine whether it is a fit case for issuance of notice, the arbitration clause which has been pressed into service, requires to be taken note of. It reads :

(3.) A plain reading of the above clause would indicate that parties have agreed that any dispute or issue arising out of touching the Agreement, if not resolved within thirty (30) days of amicable consultations, then it would be give a cause of action to either of the parties to seek for appointment of Arbitrator. In the instant case, there is no material produced to indicate that on alleged dispute arising under the agreement dtd. 3/2/2020, an attempt has been made to settle the dispute by amicable consultation. However, learned counsel appearing for petitioner would vehemently contend that an e-mail was sent on 25/3/2021 to the respondent and it was not replied to, which would indicate that resolution of disputes by consultations was attempted and it had utterly failed. The said submission though attractive at first blush, it is not so for the simple reason that perusal of e-mail dtd. 25/3/2021 which has been referred to in paragraph 3.4 of petition would only indicate that there was a demand made by petitioner for certain amount of payment from the respondent. It does not even remotely suggest that petitioner has exhibited its inclination for resolution of disputes by consultation as agreed. As such, this Court is of the considered view that present petitions is pre-mature. Reserving liberty to the petitioner to avail the agreed procedure as contemplated under Clause 8 above referred to, it is held petitioner would be at liberty to file a petition afresh under sec. 11(6) of the Arbitration and Conciliation Act , 1996.