IMPORTANT POINT
Specific stipulations in the arbitration clause are to be satisfied.

JUDGMENT

Markandey Katju, J. —

1.By means of this Arbitration Application the applicant has prayed for appointment of an arbitrator under Section 11(5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) for resolution of the disputes between the parties arising out of the agreement dated 21.2.2006.

2.Heard learned counsel for the parties and perused the record.

3.The applicant is a company registered under the Indian Companies Act, having its registered office at Thane, Maharashtra. The respondent is a company incorporated under the law of Malaysia having its registered office at Miri, Sarawak, Malaysia. The respondent had been awarded a contract of 26 Well Unmanned Platforms by the Oil & Natural Gas Corporation (in short ‘ONGC’). The applicant had been short-listed as one of the potential sub-contractors for painting workscope package and was requested to submit its quotations. On going through the quotation of the applicant, the respondent issued a contract dated 21.2.2006. Copy of the agreement is at Annexure A-4 to this application.

4.Subsequently, the applicant received a letter dated 8.9.2006 from the respondent stating that they had no choice but to exercise Article VII, the Suspension and Termination Clause, of the Contract Agreement with immediate effect on the alleged plea that the respondent was unable to furnish bank guarantee and feedback confirmation of the applicant’s readiness for work. This resulted in a dispute between the parties and the applicant wrote a letter dated 14.4.2007 invoking the arbitration clause in the agreement between the parties, being Article X. The applicant called upon the respondent to send a panel of eminent persons to be selected to act as a Sole Arbitrator. The applicant also mentioned in the said letter that in the event the respondent fails to send the list as required by the applicant, the applicant shall approach the High Court to appoint the Sole Arbitrator for resolving the dispute. When the respondent did not send any reply, the applicant wrote a letter dated 11.10.2007 to the respondent and had proposed the names of eminent prospective arbitrators and asked the respondent to select one of them as the Sole Arbitrator to adjudicate the dispute. The applicant also mentioned in the letter dated 11.10.2007 that if the respondent fails to do so, the applicant will then approach the Supreme Court for getting the arbitral forum constituted.

5.The respondent replied by email dated 16.10.2007 and stated that in Article X of the Arbitration it was mentioned that in case of any dispute or difference between the parties regarding the contract, the matter should be settled, as far as possible, by mutual consultation and consent, failing which by arbitration to be held at Mumbai, applying the Arbitration Rules of the International Chamber of Commerce (hereinafter referred to as the ICC). Article X states as follows :

“Article X Arbitration

Any dispute or difference in view regarding this CONTRACT shall be settled, in so far as is possible, by mutual consultation and consent, failing which by arbitration to be held at Mumbai, India applying the Arbitration Rules of the International Chamber of Commerce by a single arbitrator.”

6.Since the parties could not agree, the applicant applied to this Court under Section 11(5) of the Act for appointment of an Arbitrator.

7.A counter-affidavit has been filed by the respondent and I have perused the same. The respondent has relied on Article X of the Agreement dated 21.2.2006 between the parties and has urged that the arbitration has to be held at Mumbai but by applying the Arbitration Rules of the ICC. As per the Rules of Arbitration of ICC, the party who wishes to have recourse to arbitration under the said Rules is required to request for arbitration to the ICC Secretariat. The respondent submitted that the applicant has not followed that procedure for appointment of an Arbitrator because it has not submitted any request to the