COASTAL MARINE CONSTRUCTION AND ENGINEERING LIMITED Vs. GARWARE

JUDGEMENT

(1.) This Arbitration Petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 seeking the appointment of a sole Arbitrator to adjudicate upon the disputes which have been arisen between the Petitioner and the Respondent under the sub-contract dated 14th June, 2013. There is no dispute that this sub-contract contains an arbitration clause which inter alia states that any and all claims, disputes, questions or controversies involving the parties and arising in connection with this Agreement or execution, interpretation, validity, performance, termination and which cannot be finally resolved by such parties through negotiations, shall be resolved by a final and binding arbitration to be held in Pune. The Arbitration Clause further provides that the disputes shall be referred to a Sole Arbitrator to be appointed by the Petitioner and the Respondent jointly. This matter was argued before me on 5th February, 2018 and the parties asked for time till 20th February, 2018 to file written submissions. Accordingly, both parties have also filed written submissions before me. Before I deal with the rival contentions it would be appropriate to refer to a few facts, which are really undisputed. They are as follows:-

(2.) In this factual backdrop, Ms. Nyati, the learned counsel appearing on behalf of the Petitioner, submitted that there was no reason why this Court ought not to appoint an arbitrator as contemplated under Section 11 of the Arbitration and Conciliation Act, 1996. She submitted that in the facts of the present case, admittedly there was an arbitration clause that was contained in the sub-contract dated 14th June, 2013. Pursuant to this clause, the Petitioner had invoked arbitration and had called upon the Respondent to agree to the appointment of the Sole Arbitrator as suggested by the Petitioner. As the Respondent had failed to do so, the present application was filed. She therefore submitted that there was no impediment on this Court in invoking the provisions of Section 11 and referring the disputes and differences arising out of the sub-contract dated 14th June, 2013 to a Sole Arbitrator as contemplated under the contract.

(3.) On the other hand, Mr. Kamat, the learned counsel appearing on behalf of the Respondent, submitted that in the facts of the present case, the relief of appointing the Arbitrator cannot be granted on two grounds. They are:-