- (1.) This is an arbitration application u/s 11 of the Arbitration and Conciliation Act, 1996 for appointment of the Sole Arbitrator for deciding the dispute arising out of contract dated 13.8.2004 executed between the parties, for supply of different type of papers, which contained Clause 6 wherein it has been mentioned that all the disputes arising out of the contract and interpretation thereof shall be decided by the Board of Directors / Administrator and his decision would be final.
(2.) Counsel for the Applicant submits that the aforesaid Clause 6 is an arbitration clause and even if this Court comes to the conclusion that the said Clause No.6 is not an arbitration clause, a direction may be issued to the respondent to decide the claim of the applicant as early as possible as has been done by the Supreme Court in Para 6 of Nav Bharat Construction Co. V. State of Rajasthan and others, 1996 7 SCC 89 after holding in para No.5 that Clause 23 of the agreement in question in that case that the decision of the Chief Engineer to be final, is not arbitration clause.
(3.) Counsel for the Non-applicant submits that the aforesaid Clause2 6 is not an arbitration clause as in the said clause, no right of reference has been given to the Applicant and further, no duty has been cast upon the Board of Directors or the Administrator to act either judicially or quasi-judicially while deciding the dispute. Counsel for the Non-applicant also submits that there is no obligation upon the Board of Directors / Administrator to take evidence and after hearing the application to decide the said dispute and further, both the parties are bound by the said decision and the same must be enforceable in law. In support of his aforesaid contention, counsel for the Nonapplicant has placed reliance on the Supreme Court judgment in State of Orissa and others V. Bhagyadhar Dash, 2011 2 WLC(SC)CVL 517, more particularly Paras 3, 3.2, 3.3, 3.4, 3.5 and 3.6. It would also be appropriate to mention here that under the heading before Para No.6 the Supreme Court has also prescribed the tests applied to find out whether they could be termed as arbitration agreement and similar term where the Superintending Engineer was given right to decide the dispute about the rate of contract, was held to be not an arbitration clause from paras 15 to 17.;