IMPORTANT POINT
When the agreement provides for arbitration and parties have a dispute, an arbitrator should be appointed.

JUDGMENT

1. This application has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Arbitration Act”) for appointment of an arbitrator to go into the disputes and differences that the petitioner claims to have arisen between the petitioner–Company and the respondents under an Agreement/Memorandum of Understanding dated 17.07.2013.

2. According to the petitioner, the respondent No.1 -Muktinath Airlines Private Limited is the owner of a Helicopter Robinson R44 Raven II. The petitioner contends that the respondent No.1 – Company executed a power of attorney dated 20th June, 2013 authorising the respondent No.2 – Galaxy Aviation Incorporation Private Limited to sell the said Helicopter. A Memorandum of Understanding (for short “MOU”) dated 4th July, 2013 was entered into between the respondent No.1 and the respondent No.2 incorporating the terms for the sale of the Helicopter. The petitioner states that on 17th July, 2013 a MOU was executed between the petitioner and the respondent No.1 represented by its power of attorney i.e. respondent No.2 for sale of the Helicopter in question. The price was agreed upon and an advance amount of Rs. 5,00,000/-(Five Lakhs only) was paid by the petitioner to the respondent No. 1.

3. The petitioner has contended that it was agreed by and between the parties in the MOU dated 17th July, 2013 that the sale of the Helicopter would be completed within two months. The respondents failed to handover possession of the Helicopter within the aforesaid period. According to the petitioner, an addendum to the MOU dated 17th July, 2013 was executed between the petitioner and the respondent No.2 for extension of time upto 16th December, 2013 for the delivery of the Helicopter. It appears that the respondent No.2 demanded a sum of Rs.15 lakhs over and above the agreed sale price [Rs.2,04,00,000 (Rupees Two crore four lakhs)] which was responded to by the petitioner on 10th December, 2013, inter alia, informing the respondent No.2 of its failure to comply with clause 4 and clause 13 of the MOU dated 17th July, 2013. Accordingly, legal notice was issued by the petitioner to the respondents. As the petitioner apprehended that the respondents may sell the Helicopter to a third party it had approached the Delhi High Court by means of a petition under Section 9 of the Arbitration Act. Accordingly, interim orders were passed by the Delhi High Court on 14th March, 2014. The petitioner invoked the arbitration clause (clause 24) of the MOU dated 17th July, 2013 by notice dated 13th February, 2014 and as the same had not been responded to the instant petition has been filed.

4. The respondent No.2 has chosen not to appear before the Court. The respondent No.1, who is represented, has filed an affidavit contending that in terms of MOU dated 4th July, 2013, between the respondents, it was agreed that if the respondent No.2 failed to make payment within one month from the date of the MOU (i.e. 4th July, 2013) then the said MOU would stand terminated. It was stated that the respondent No.2 had failed to make such payment and, therefore, the MOU between the respondents dated 4th July, 2013 had become non-est in law. The respondent No.1 has further contended that it is not bound by the MOU dated 17th July, 2013 as it was not a party to the same. It is the further contention of the respondent No.1 that the power of attorney was forged by the respondent No.2 and also that the MOU dated 4th July, 2013 between the respondents has been materially altered in respect of clause 12 and clause 19 thereof altering the periods specified in the said clauses from one month to three months.

5. I have heard the learned counsels for the parties and I have considered the submissions advanced. Clause 24 of the MOU dated 17th July, 2013 which provides for arbitration is in the following terms:

“24) This MOU will be governed by the provision of Indian Arbitration and Conciliation Act, 1996 a