- (1.) THIS is an application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 read with paragraph 3 of the Scheme framed by Hon 'ble the Chief Justice of India under Section 11(10) of the said Act for appointment of an arbitrator.
(2.) IT is the case of the petitioner that the parties had entered into an agreement dated 25.5.2009. As per the agreement, the respondent non-applicant was to supply 12500 MT metal scraps consisting of used Rails to the petitioner-applicant. The rate was fixed at USD 240/PMT/CIF/ASWP and the total contract value was USD $ 3,000,000.00 (Three Million United States Dollars). The payment was to be made on DP basis (i.e. Presentation of Documents) within 4-7 days of receipt of documents in buyers (petitioner) bank as mentioned in Article 14 of the agreement. Article 20 of the agreement provided for a penalty in case of failure/late delivery of the materials. In accordance with the agreement, the applicant has sent to the non-applicant $ 1,000,000 (One Million Dollars) from time-to-time, but no material was received from the non-applicant. In the meantime, in anticipation of the receipt of the material, the applicant had already entered into an agreement for sale of the same. In spite of the repeated requests, the material was not sent by the non-applicant. Consequently, on 29.10.2009, the applicant sent a notice to the non-applicant seeking to refer the matter to arbitration in terms of the arbitration clause contained in Article 24 of the Agreement which reads as under: "This contract the Polish law, the European Union member is only accepted any dispute arising from or in connection with the contract shall be settled through friendly negotiation. In case no settlement is reached, the dispute shall be submitted to District Court in Spain and India for arbitration in accordance with its rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties. "
(3.) A perusal of the aforesaid clause indicates that the parties were at liberty to submit to the arbitration to an appropriate authority either in Spain or in India. By the aforesaid notice, the applicant has chosen to seek arbitration in India. In spite of the opportunity having been given to the non-applicant, they have not chosen to nominate any arbitrator.;