APARESH KUMAR SINGH, J. - (1.) Pursuant to the previous order dated 16.03.2017, which reads as under, " Upon Consideration of submission of learned counsel for the parties it appears that the agreement at Annexure-7 between the parties contains an Arbitration Clause. Learned counsel for the parties are required to seek instructions on the issue whether the matter can be referred to an independent Arbitrator. List this case in the 1st week of April, 2017 under the heading 'For Orders'." the Respondent Corporation has filed its affidavit on 17.04.2017 inter-alia stating at para-4 and 5; "4. That Clause-19(a) of the Agreement, which is Annexure-7 to the writ application, it shall appear that it refers to any dispute and difference of any nature whatsoever, any claim, cross-claim, counter claim or set off of the Company, against the licensee or regarding any right, liability, act, omission or account of any other parties hereto arising out of or in relation to the Agreement shall be referred to the Sole Arbitrator. 5. That, thus Clause 19(a) of the Agreement postulates a position of dispute arising out of the terms of the agreement after signing of the agreement. However, here in a case where dispute does not arise out of the agreement, rather it relates to a period prior to signing of the agreement."
(2.) Learned Senior Counsel for the Respondent Corporation submits that Respondents are of the opinion that the instant dispute does not arise out of the terms of the Agreement, rather it relates to a period prior to signing of the Agreement, which may not be covered under the provisions of Arbitration Clause.
(3.) Learned Senior Counsel for the petitioner asserts to the contrary by relying upon the provisions of Clause 19(a) to (g) of the Agreement (Annexure-7) dated 30.03.2013. Clause 19 thereof reads as under: "19(a) Any dispute or difference of any nature whatsoever, any claim, cross-claim, counter-claim or set off of the Company against the licensee or regarding any right, liability, act, omission or account of any of the parties hereto arising out of or in relation to this agreement shall be referred to the Sole Arbitration of the Director (Marketing) of the Company or of some Officer of the Company who may be nominated by the Director (Marketing). The licensee will not be entitled to raise any objection any such arbitrator on the ground that the arbitrator is an officer of the Company or that he has dealt with the matters to which the contract relates or that in the course of his duties as an Officer of the Company, he had expressed view on all or any other matters in dispute or difference. In the event of the arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, the Director (Marketing) as aforesaid at the time of such transfer, vacation of office or inability to act may in the discretion of the Director (Marketing) designate another person to act as arbitrator in accordance with the terms of the agreement to the end and intent that the original Arbitrator shall be entitled to continue the arbitration proceedings notwithstanding his transfer or vacation of office or inability of original arbitrator. Such person shall be entitled to proceed with the reference from the point at which it was left by his predecessors. It is also a term of this contract that no person other than the Director (Marketing) of the Company or a person nominated by such Director (Marketing) as aforesaid shall act as arbitrator hereunder. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the agreement subject to the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modification or reenactment thereof and the rules made thereunder for the time being in force shall apply to the arbitration proceedings under this clause. b) The arbitrator shall have power to order and direct either of the parties to abide by, observe and perform all such directions as the arbitrator may think fit having regard to the matters in difference i.e. dispute, before him. The arbitrator shall have all summary powers and may take such evidence oral and/ or documentary, as the arbitrator in his absolute discretion thinks fit and shall be entitled to exercise all powers under the Indian Arbitration and Conciliation Act 1996 including admission of any affidavit as evidence concerning the matter in difference i.e. dispute before him. c) The parties against whom the arbitration proceedings have been initiated, that is to say, the Respondents in the proceeding, shall be entitled to prefer a cross-claim, counter claim or set off before the Arbitrator in respect of any matter in issue arising out of or in relation to the Agreement without seeking a formal reference of arbitration to the Director (Marketing) for such counter-claim, cross-claim, or set off and the Arbitrator shall be entitled to consider and deal with the same as if the matters arising therefrom has been referred to him originally and deemed to form part of the reference made by the Director (Marketing). d) The arbitrator shall be at liberty to appoint, if necessary any accountant or engineering or other technical person to assist him, and to act by the opinion so taken. e) The arbitrator shall have power to make one or more awards whether interim or otherwise in respect of the dispute and difference and in particular will be entitled to make separate awards in respect of claims of cross claims of the parties. f) The arbitrator shall be entitled to direct any one of the parties to pay the costs to the other party in such manner and to such extent as the arbitrator may in his discretion determine and shall also be entitled to require one or both the parties to deposit funds in such proportion to meet the arbitrators expenses whenever called upon to do so. g) The parties hereby agree that the courts in the city of Ranchi alone shall have jurisdiction to entertain any application or other proceedings in respect of anything arising under this agreement and any award or awards made by the Sole Arbitrator hereunder shall be filed (if so required) in the concerned courts in the city of Ranchi only." ;