Ashis Kumar Chakraborty - (1.) The Court : In this application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (in short, 'the Act of 1996') the petitioner has prayed for appointment of a Sole Arbitrator to adjudicate the disputes and differences arisen between the parties relating to the agreement for consultancy services dated July 21, 2016.
(2.) There is no dispute between the parties with regard to the existence of the agreement for consultancy services dated July 21, 2016 under which the respondent engaged the petitioner as a consultant to prepare a detailed project report for Entry Level Activities (ELA) for the Ganga river in the State of West Bengal under Namami Gange Programme. The agreement dated July 21, 2016 contains an arbitration clause contemplating all disputes and differences arising between the parties relating thereto shall be adjudicated through arbitration by the Chairman-cum-Managing Director of the respondent. According to the petitioner, the respondent has wrongfully and illegally terminated the said agreement and invoked the bank guarantee(s) furnished by the petitioner. Thus, the disputes and differences have arisen between the parties. It is stated by the petitioner that an amicable settlement of the disputes and differences arisen between the parties has failed through and, as such, by a letter dated July 25, 2018 addressed to the Group General Manager of the respondent the petitioner invoked the arbitration agreement.
(3.) The ground urged by the petitioner in this application is that in view of the incorporation of sub-Section (5) of Section 12 of the Act of 1996, as well as the Seventh Schedule thereto, the Chairman-cum-Canaging Director of the respondent is ineligible to act as an Arbitrator. In this regard, the petitioner has relied upon on a decision of the Supreme Court in the case of TRF Ltd. -Vs- Energo Engineering Projects Limited, reported in (2017) 8 SCC 377. The respondent does not dispute the existence of the arbitration agreement between the parties. The respondent even accepts that the dispute raised by the petitioner is also covered by the arbitration agreement. The learned Counsel for the Respondent could not dispute that the ratio of the decision of the Supreme Court in the case of TRF Ltd. (supra) is applicable in this case. It is, however, submitted by the respondent that the petitioner has issued the said letter dated January 25, 2018 invoking the arbitration agreement at a point of time when the suit filed by it against the respondent was pending before the learned Civil Judge (Senior Division) at Gurugram.;