- (1.) 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 dispute mentioned in the notice under Section 21 of the Act of 1996 relating to the agreement dated August 28, 2010, being Annexure-'E' to the petition. A copy of the application was forwarded to the respondent. Although the respondent has received a copy of the application but it remains unrepresented even in the second call. Accordingly, this application is taken up for hearing in the absence of the respondent.
(2.) From the documents disclosed in the application it appears that there is no dispute between the parties with regard to the existence of the arbitration agreement contained in clause 36 of the said agreement dated August 28, 2010 contemplating that all disputes and differences arising between them relating to the said agreement shall be adjudicated through arbitration by the chairman of the respondent or such officer as he may appoint to be the arbitrator. By the communication dated February 17, 2018 addressed to the petitioner the Senior Branch Manager of the respondent asserted that there is no reason for appointment of the Arbitrator to adjudicate the claim raised by the petitioner against the respondent. By a notice dated February 22, 2019, issued under Section 21 of the Act of 1996 the petitioner invoked the arbitration agreement between the parties and requested the Chairman of the respondent to concur with the appointment of the Arbitrator named by it. The Chairman of the respondent received the said notice dated February 22, 2019 but did not respond to the same.
(3.) In the present case, there is no dispute between the parties with regard to the existence of the arbitration agreement between the parties contained in Clause 36 of the said notice. The dispute raised by the petitioner with regard to the invocation of the bank guarantee, furnished by it in terms of the said agreement dated August 28, 2010, by the respondent is also covered by the arbitration agreement between the parties. However, it is settled law that in view of the provisions contained in Section 12(4) of the Act of 1996 read with entry 1 of Schedule VII thereto and the decisions of the Supreme Court in the cases of TRF Limited Vs. Energo Engineering Projects Limited reported in (2017)8 SCC 377 and Bharat Broadband Network Limited Vs. United Telecoms Limited reported in (2019) 5 SCC 755. The Chairman of the respondent is not only ineligible to act as the Arbitrator in this case even he cannot appoint an Arbitrator.;