SANJIB BANERJEE, J. - (1.) THE primary objection of the respondent to the present request under Section 11 of the Arbitration and Conciliation Act, 1996 is that there is no arbitration agreement between the parties. The lesser challenge is that the invocation of the alleged arbitration agreement is premature since no attempt was made at reconciling the disputes.
(2.) THE arbitration clause that the petitioner relies on is contained in an agreement of August 25, 2009. The clause provides as follows: "8. Resolution of disputes: Any dispute arising out of this Agreement shall be settled by mutual discussions between the Managing Directors of the Companies whose decision shall be accepted by the Parties. If the dispute is not resolved by mutual discussion then the Agreement will be governed by the Arbitration Act, 1996." The substance of the respondent's submission is that the clause does not speak of any arbitration or of the finality of any decision in an arbitral reference. The respondent says that the relevant clause does not indicate the intention of the parties to have their disputes resolved by arbitration. The respondent also suggests that since the petitioner made no attempt to have the disputes reconciled by the managing directors of the two companies, the petitioner was not entitled to invoke the so-called arbitration agreement. The petitioner refers to the respondent's contemporaneous conduct and submits that the case made out at the bar is at variance with the respondent's understanding of the clause. The petitioner first refers to two letters issued by the respondent on November 22, 2011 and on January 11, 2012. In the first of the letters, there is a categorical admission of the existence of the arbitration agreement in the opening paragraph thereof: "We are in receipt of your letter under reference nominating Er. Arun Samanta as your nominee Arbitrator. Be it stated that your nomination as aforementioned is prematured and untenable in terms of the arbitration agreement between the parties."
(3.) IN the other letter, the respondent repeated that the petitioner's nomination of an arbitrator was premature. The petitioner also places paragraph 45 of the affidavit filed by the respondent in the present proceedings: "45. With reference to paragraph no.10 of the petition, the Respondent submits that the contents of this paragraph are matters of record. The Respondents further submits that Petitioner's nomination of arbitrator was pre-matured, since the relevant provision of contract which is reproduced hereunder stipulates that any dispute arising out of the agreement should be settled by mutual discussions between the parties at the first instance and in the event the dispute is not resolved by such mutual discussions, the dispute can be resolved through arbitration governed by the Arbitration and Conciliation Act, 1996." In view of the stand taken on affidavit by the respondent, the point should not have been urged at the bar. However, several authorities have been cited by the respondent in support of the contention that there is no arbitration agreement between the parties, notwithstanding the categorical acceptance of the arbitration agreement in the affidavit. Indeed, the respondent did not deny the existence of the arbitration agreement in course of the letters addressed to the petitioner prior to the petitioner carrying the present request to the Chief Justice of this court or his designate. Although it is unnecessary in such context to deal with the argument which runs contrary to the affidavit stand, the authorities cited by the respondent are noticed nonetheless.;