(1.) This is an application under section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator.
(2.) In view of the amended provisions of 1996 Act, namely, section 11(6A), the Court is only required to confine its attention to the existence of an arbitration agreement. The scope of inquiry in such matters have been lucidly explained in the case of Duro Felguera, S.A. Vs. Gangavaram Port Limited, reported in (2017) 9 SCC 729 . In paragraph 59 Justice Kurian Joseph in His Lordship's concurring judgment has held:-
(3.) There cannot be any iota of doubt that the parties have entered into an agreement which contains an arbitration clause. Although in the affidavit in opposition it has been stated on behalf of the respondents that the work could not be ultimately awarded due to the non- availability of land and hence there is no concluded contract, this Court is unable to accept such submission on fundamental difference being that the inability to furnish the land after acceptance of bank guarantee relates to performance of contract and does not affect the existence of the contract. The terms of the contract are governed by the General Conditions of Contract. Clause 25 of the contract document refers to an arbitration clause. Whether the acceptance of the bank guarantee by the petitioner due to inability of the respondent to provide land would discharge the respondent authorities from any liability is a matter to be decided by the learned Arbitrator. Even under the un- amended provisions the Hon'ble Supreme Court in National Insurance Company Limited v. Boghara Polyfab Private Limited; (2009) 1 SCC 267 has held that these kinds of disputes should be left to the Arbitrator. In Boghara Polyfab (supra) it is stated:-