( 1 ) THIS petition under Section 11 (5) of the Arbitration and Conciliation act, 1996 has been filed with the prayer to appoint an arbitrator. There is no stipulation for the appointment of the arbitrator in the agreement and it is only by the virtue of provisions of Section 7 (4xc) it is contended that the condition for appointment of arbitrator in the agreement should be construed 'in writing'. A notice dated 21-7-1999 was sent by the petitioner alleging that "you have also agreed with our client that the issues can be referred to arbitration in Bangalore". It is also mentioned that if the respondents failed to settle the matter within 21 days from the receipt of notice legal action would be initiated. No reply was sent within the stipulated time. On 12-8-1999, it was replied that the 'averments in the notice are refuted'. Petitioner thereafter sent another letter dated 22-9-1999 that a valid arbitration agreement has come into existence. Reply of this letter was sent on 28-9-1999 refuting that the respondents have ever agreed to refer the dispute to the arbitration.

( 2 ) ON behalf of the respondent it is submitted that in accordance with the notification dated 13-11-1996, the scheme which has been framed by the Hon'ble Chief Justice of High Court of Karnataka has stipulated that original arbitration agreement or a duly certified copy thereof has to be given. The question where there is an oral agreement for arbitration is always a disputed question and therefore the Arbitration Act has contemplated the arbitration agreement in writing and the circumstances under which it could be considered to be in writing are given under Section 7 (4kc ).

( 3 ) I have considered over the matter. Section 7 (4) of the Act reads as under:"7 (4) An arbitration agreement shall be in writing. (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other".

( 4 ) FROM the perusal of Section 7 (4) it is evident that the arbitration agreement has to be in writing. How the agreement could be considered to be in writing has been explained under Section 7 (4) of the Arbitration act. According to that even if there is an exchange of statement of claims and defence in which the existence of agreement is alleged by one party and not denied by the other an arbitration agreement in writing could be presumed. The notice which has been sent could be considered to be statement of the claim. The other thing which has been required by the section is that in response to the statement of claim there must be a defence, then only an agreement could be inferred. It is not necessary in all cases that the agreement must contain a clause in writing for appointment of an arbitrator. It may be inferred from the subsequent correspondence or other document by which the parties may agree for appointment of arbitrator. If there is nothing of the sort in writing then in the statement of claim it has to be specifically stated that there is an arbitration agreement. If in the defence nothing is stated on this point, then, arbitration agreement could be presumed. But if there is no defence then there is no exchange. Exchange of statement of claim and defence only would make the existence of agreement. The opposite party may not reply but keeping silent would not amount to any defence nor it could be considered to be an exchange of the statement of the claim with the defence. If in the reply all other matters such as claim, objections et. , are replied but if the reply is silent about the arbitration agreement then such an agreement could be inferred. In a case where the reply is not given, or defence is not taken, or the other side consider it proper to egnore the notice, i. e. , statement of claim, then, it cannot be co