- (1.) This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") has been lodged by one Taiyo Membrane Corporation Pty. Ltd. seeking appointment of an arbitrator to resolve certain disputes that have arisen out of three sub- contracts executed with the respondent in respect of works relating to renovation of the Jawaharlal Nehru Stadium, New Delhi. The said works were awarded to the respondent by the C.P.W.D.
(2.) The area of dispute is small and narrow, namely, the entitlement of the petitioner to 5% of his claimed dues which, according to the petitioner, has been wrongly withheld by the respondent.
(3.) The respondent has objected to the appointment of an Arbitrator by the Court, inter alia, on the ground that the contractual obligations incumbent on the petitioner/applicant have not been fulfilled without which the demand for release of the amount, as aforesaid, is not justified. As the said objection itself raises an arbitrable issue the same need not engage the attention of the Court. Such attention, however, has to be focused on the principal objection of the respondent. The same is to the effect that the two of the sub-agreements were between Taiyo Membrane Corporation and the respondent Company whereas one sub-agreement was between Taiyo Membrane Corporation (India) and the respondent. The applicant is Taiyo Membrane Corporation Pty. Ltd. which is not a party to any of the said sub-agreements. Besides, it is contended that invocation of the arbitration clause was by the applicant who is not a party to the agreements. On the said basis, it is urged that there is no valid invocation of the arbitration clause and consequently there is no failure on the part of the respondent to appoint the arbitrator so as to warrant an order from the Court under Section 11(6) of the Act. It is also urged that one of the sub-agreements being between two Indian entities i.e. Taiyo Membrane Corporation (India) and the respondent Company any appointment of an arbitrator would fall outside the jurisdiction of this Court under Section 11(6) of the Act.;