Bela M. Trivedi, J. - (1.) THE present application has been filed by the applicant seeking appointment of arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the said Act').
(2.) IT appears that an agreement was executed between the applicant and the respondents on 18.8.2005 for "Restoration and conversation of Jag Mandir and C.B. Tank including addition of viewer's gallery in Brij Vilas Palace Museum, Kota". Clause 21.6 of Section X of General Conditions of contract was made part of the agreement executed between the parties, which pertained to referring the disputes that may arise between the parties to the arbitration. Since the dispute arose between the parties with regard to the execution of the contract in question, the applicant vide notice dated 9.9.09 invoking the arbitration clause, requested the respondents to settle the dispute amicably. The said notice was replied by the respondent No. 2 by the letter dated 29.9.09 denying the claims of the applicant. The applicant therefore again sent another notice on 8.10.09 to which the respondent No. 2 replied on 3.11.09. The applicant again sent notice dated 15.1.10 requesting to settle the disputes failing which to appoint the arbitrator in view of Clause 21.6 of the agreement. The respondent No. 2 replied to the said notice on 28.2.10 stating inter alia that in view of the undertaking given by the applicant on 10.2.08, the earlier agreement had stood terminated, and therefore the applicant was not entitled to invoke the clause for appointment of arbitrator. The applicant thereafter filed the present application under Section 11 of the said Act. The application has been resisted by the respondents by filing the reply mainly contending inter alia that the applicant had suppressed the fact that the dispute was already amicably settled between the parties and the applicant had also given an undertaking on 11.12.08 treating the same as novation of the contract, and therefore the application was not maintainable. The applicant had filed the rejoinder denying any novation of the contract reiterating that the disputes between the parties still subsisted.
(3.) THE learned counsel Mr. N.K. Maloo for the applicant relying upon the decision of the Apex Court in case of M/s. Gayatri Project Ltd. v. M/s. Sai Krishna Construction : JT 2014(1) SC 353 submitted that where there is an arbitration clause in a contract, dispute has to be referred to the arbitration, notwithstanding the plea that there was a full and final settlement between the parties. According to Mr. Maloo, the respondents had got signed the undertaking from the applicant in the standard form and thereafter also had not acted as per the said settlement by not making payment towards full and final settlement. The said dispute therefore is required to be referred to the arbitrator.;