- (1.) This petition under section 11(5) of the Arbitration and Conciliation Act, 1996 ('Act' for short) is filed for appointing a sole arbitrator to adjudicate upon the disputes between the petitioner and respondent.
(2.) The petitioner alleges that the respondent entered into an agreement dated 28.2.2005, agreeing to purchase from the petitioner 40, 000 MT (plus or minus 10%) of iron-ore fines at FOB price of US$ 50 per dry MT, subject to the terms and conditions of the said agreement. Clause 17 of the said agreement providing for settlement of disputes by arbitration is extracted below : "17. Arbitration: Any dispute arising out of or in this connection with this contract or the execution thereof shall, to the extent possible, be settled amicably by negotiation and mutual agreement between the Seller and the Buyer. If no settlement can be reached in this way, the matter in dispute shall then be referred to and finally resolved by arbitration in Hong Kong in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any other statutory modification, enactment or amendment thereof for the time being in force."
(3.) The petitioner alleges that respondent failed to nominate the vessel in terms of the contract in spite of several reminders and ultimately refused to take delivery of the cargo; that in view of breach by the respondent, the petitioner had to sell the cargo at Rs.1010/- per MT (as against the contract price of Rs.2190/-) incurring a loss of Rs.1180/- per MT; that it had to incur storage charges for storing the cargo for more than five months; that it had to incur freight charges for moving a part of the cargo from Karwar Port to Mangalore Port; that the amount invested in the cargo was locked up for considerable period involving loss of interest on the value; and that as a consequence, respondent is liable to pay a sum of Rs.11, 50, 57, 488/- (= US $26, 27, 568). The alleged refusal/repudiation by the respondent gave rise to a dispute and the petitioner by a notice dated 21.9.2005 through counsel, invoked the arbitration agreement and furnished a panel of three names to enable the respondent to give concurrence for appointment of any one of them as the sole arbitrator. The respondent sent a reply refusing to comply. This led to the filing of the present application under section 11(5) of the Act, seeking appointment of the sole arbitrator.;