- (1.) The respondents do not question the existence of the arbitration clause in the agreement of February 4, 2008 that the petitioner has invoked. The respondents say that there are no live claims to be carried to an arbitral reference under such agreement and that the petitioner seeks to carry matters not covered by the arbitration clause to the reference. The parties entered into an agreement on February 4, 2008 under which the petitioner herein proposed to set up an integrated steel plant in the State. The two other parties to the agreement were Government concerns, West Bengal Industrial Development Corporation Limited and the West Bengal Minerals Development and Trading Corporation Limited. Clause 18.2 of the agreement constitutes the arbitration clause - 18.2. In the event of any dispute arising between the Parties in relation to or under this agreement, the same shall be settled by arbitration conducted in accordance with the Arbitration and Conciliation Act, 1996 (or any other enactment which replaces the said Act) by an arbitral tribunal consisting of three arbitrators, one to the appointed jointly by WBIDC/WBMDTC and one by SSL and the third arbitrator being appointed by the two arbitrators so appointed. The decision of the arbitration tribunal shall be final and binding. The venue for the arbitration shall be Kolkata. The costs of the arbitral tribunal shall be equally borne by both the Parties. Each party shall bear its own cost of the arbitration provided however, the parties can claim costs as part of the relief sought from the arbitration tribunal.
(2.) The respondents insist that the agreement of February 4, 2008 mas given a go-by in the matter relating to allocation of a coal block or supply of coal or like matters and the parties entered into subsequent memoranda of understanding on January 11, 2011 and on March 1, 2011. The respondents refer to the identical clauses in the two memoranda of understanding that provide for the reference of any dispute thereunder to any Additional Chief Secretary or the Principal Secretary or a Secretary to the Government in the Commerce and Industries Department.
(3.) By a letter dated August 28, 2012, issued to both the respondents, the petitioner invoked the arbitration clause contained in the agreement of February 4, 2008 and named the petitioner's nominee on the three-member tribunal. The petitioner called upon the respondents to either concur in the appointment of the petitioner's nominee as the sole arbitrator or appoint the respondents' nominee within seven days from the date of receipt of the letter. The first respondent replied within three days of the petitioner's letter, referring to the letter of August 28, 2012 upon recognising it to be an invocation of the arbitration clause but not indicating any clear response to the invocation of the arbitration agreement. The second respondent does not appear to have issued any reply at all.;