Judgment

R. C. LAHOTI, J.

( 1 ) THIS is a petition under Section 11 (4) of the Arbitration and conciliation Act, 1996 (hereinafter, the Act for short) seeking appointment of an arbitrator for and on behalf of the respondent herein, in the backdrop of the events briefly stated hereinafter.

( 2 ) THE petitioner, a company duly incorporated in India and having its principal office at Delhi placed an order for the supply of facial tissue paper to the respondent, a company incorporated in New York and having its seat thereat. The respondent issued pro forma invoice dated 22-6-2001 wherein one of the clauses provides as under:"any disputes or claims will be submitted to arbitration in New york. "

( 3 ) THE abovesaid clause is treated by the petitioner as arbitration contract between the parties.

( 4 ) THE petitioner opened an L/c as demanded by the respondent and agreed to by the petitioner. The shipment of the goods arrived at Nhava Sheva port at Mumbai. The goods on inspection were found to be not conforming to the sample of goods. The petitioner held the respondent guilty of breach of contract and demanded damages and compensation along with refund of the amount of L/c with interest. Vide legal notice dated 22-11-2001 the petitioner called upon the respondent to join in constitution of an Arbitral tribunal. The petitioner nominated one Shri Vikas Jain, Chartered accountant, New Jersey, USA as his arbitrator and requested the respondent to nominate its arbitrator within 30 days of the date of receipt of the notice and thereafter both the nominated arbitrators proceeding to appoint a presiding arbitrator. The respondent neither appointed an arbitrator nor responded to the petitioners notice. On 12-1-2002 the present petition has been filed.

( 5 ) THE respondent though noticed has chosen to remain absent. These proceedings have, therefore, proceeded ex parte against the respondent. In view of the place of arbitration being New York, as agreed upon between the parties, a doubt arose whether the Chief Justice of India or his designate within the meaning of Section 11 of the Act would be competent to appoint an arbitrator. Shri V. A. Mohta, Senior Advocate was requested to render his assistance as amicus curiae. Shri V. A. Mohta has appeared and pointed out various relevant legal. provisions. Shri Rajesh Aggarwal, the learned counsel for the petitioner has also been heard.

( 6 ) SECTION 11 is placed in Part I of the Act. Sub-section (2) of Section 2 provides: this Part shall apply where the place of arbitration is in India. " On a plain reading of this provision it is clear that Parliament intended the provisions of Part I to be applicable when the place of arbitration is in India. Shri Rajesh Aggarwal, the learned counsel for the petitioner submitted that the provision is not couched in a negative form i. e. it does not exclude the applicability of Part I if the place of arbitration is not in India. He submitted that the contract was to be performed in India; it is here that the breach of contract has taken place. Therefore, a petition under Section 11 of the Act is maintainable before the Chief Justice of India or his designate.

( 7 ) IN National Thermal Power Corpn. v. Singer Co. a question arose as to the applicability of Indian law when one of the contracting parties was a foreigner. Though the case is pre-1996, certain observations made therein are apposite. In case of conflict of laws, the Supreme Court Of India has opined that for arbitration, the selection of the place of arbitration may have little significance where it is chosen, as is often the case, without regard to any relevant or significant link with the place. This is particularly true when the place of arbitration is not chosen by the parties themselves, but by the arbitrators or by the outside body, and that too for reasons unconnected with the contract. It would be different if choice of place for submission for the arbitration is supported by the rest of the contract