- (1.) THE factum of the parties to this petition being parties to an agreement containing in arbitration agreement and the factum of this being the right High Court to be approached is not in dispute. The arbitration clause in the agreement between the parties is as under: - "Clause 20. In the event of any question, dispute or difference arising under this agreement or in connection there -with (except as to the matters, the decision to which is specifically provided under this agreement), the same shall be referred to the sole arbitration of the CMD, BSNL or in case his designation is changed or his office is abolished, then in such cases to the sole arbitration of the office for the time being entrusted (whether in addition to his own duties or otherwise) with the functions of the CMD, BSNL or by whatever designation such an officer may be called (hereinafter referred to as the said officer) is unable or unwilling to act as such, then to the sole arbitration of some other person appointed by the CMD, BSNL or the said officer. The agreement to appoint an arbitrator will be in accordance with the Arbitration and Conciliation Act, 1996 ..... "
(2.) THE petitioner applied under Section 11 ( 6) of the Arbitration Act on the ground that the respondent in spite of request has refused to join in the appointment of the arbitrator and / or the appointing authority has failed to appoint the Arbitrator and thus the agreed arbitration procedure has failed. The respondent has contested the application on three grounds. Firstly, it is contended that the agreement is of arbitration by CMD of the respondent or by any person appointed by the CMD; the petitioner never approached the CMD and only approached the DDG (MM) of the respondent for arbitration. Secondly, it is contended that the dispute raised fall in the excepted matter under the arbitration clause aforesaid. Thirdly, it is contended that in fact there is no dispute inasmuch as the claim as set out in the petition and disputed by the respondent is not under the agreement but tantamounts to the petitioner wanting the agreement to be re -written.
(3.) AS far as the first contention of the respondent is concerned, admittedly there is no communication from the petitioner, after the disputes have arisen to the CMD of the respondent. The agreement between the parties is of reference of disputes to a named arbitrator i.e. CMD of the respondent who under the agreement is also entitled to nominate/appoint some other officer of the respondent as the arbitrator. The petitioner has relied upon its letter dated 23rd April, 2007 to the DDG (MM) of the respondent stating that in view of disputes have arisen, the petitioner in terms of Clause 20 of the bid document was calling upon the addressee to forthwith nominate and appoint the arbitrator to adjudicate the issues in dispute and further stating that if the appointment of the arbitrator is not made in terms of clause 20, the petitioner shall proceed on the basis that there is no agreement on the procedure for appointing arbitrator and proceed with appointment of arbitrator in accordance with the Act. The Assistant Director General (ST) of the respondent replied to the aforesaid communication on 7th May, 2007 stating that the request for appointment of an arbitrator in terms of clause 20 of the bid document was not tenable in view of terms and conditions of the document. The advocate for the petitioner sent another letter dated 7th June 2007 again to the DDG (MM) of the respondent and which was replied to 21st June, 2007 by the Assistant Director General (ST) reiterating the stand taken earlier.;