The court affirmed that contractual disputes necessitate arbitration per the agreement terms, allowing the appointment of arbitrators to resolve the issue.

ORDER :

Ashok S.Kinagi, J.

1. This Civil Miscellaneous petition is filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (for short, “the Act”), seeking for the appointment of an arbitrator to resolve the disputes between the parties to the petition in terms of Clause (E.57) of the Articles of Agreement dated 18.11.2016 vide Annexure “B”.

2. Brief facts leading to the filing of this petition are as follows:

3. The petitioner specialises in the real estate development, amongst other objectives set up in its Memorandum of Association. The respondent— Company is the developer of the real estate projects. The petitioner and the respondent entered into an Articles of Agreement dated 18.11.2016 vide Annexure “B”.

4. It is the case of the petitioner that the petitioner performed its obligations under the Articles of Agreement dated 18.11.2016 and there was a delay in payment of the invoice value and Clause 12 of Section (C) of the Articles of Agreement has not been adhered to by the respondent, as a result of which, the petitioner underwent and is undergoing substantial loss.

5. The respondent demanded a credit note, despite there being no such term in the Articles of Agreement. The petitioner, despite having no inclination to issue the same, was forced upon to issue the same, fearing no payments receivable.

6. The respondent has not made payments as per the running bills issued by the petitioner. The petitioner issued a Legal Notice on 14.03.2023, demanding payments due from the respondent. The Articles of Agreement provide for an arbitration clause to settle disputes between the parties and the petitioner, as per Clause (E.57) of Articles of Agreement propose the name of the Hon’ble Sri. Justice K.Sreedhar Rao, former Acting Chief Justice of the High Court of Guwahati, as an Arbitrator on its behalf and requested the respondent to nominate an arbitrator on their behalf to settle the disputes.

7. The respondent replied to the legal notice, however, there was no consensus between the parties to the petition with regard to the appointment of an arbitrator. Hence this petition.

8. The respondent, despite the grant of sufficient opportunity, did not file a statement of objections. Hence the statement of objections is taken as not filed.

9. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent.

10. The learned counsel for the petitioner submitted that the Articles of Agreement came to be executed between the petitioner and the respondent on 18.11.2016. The petitioner has performed its obligation under the Articles of Agreement. He submits that the respondent has not performed its obligation as per the Articles of Agreement dated 18.11.2016.

11. The dispute arose between the petitioner and the respondent regarding the terms and conditions of the Articles of Agreement. The Articles of Agreement provide for an arbitration clause. The petitioner issued an arbitration notice, nominating Hon'ble Sri.Justice K.Sreedhar Rao, former Acting Chief Justice of the High Court of Guwahati, as an Arbitrator and called upon the respondent to nominate the Arbitrator on their side. But there was no consensus between the parties. Since there is an arbitrable dispute and the same has to be resolved by an arbitrator, Hence, he prays to allow the petition.

12. Per contra, learned of counsel for the respondent submits no objection to allow the petition.

13. Perused the records and considered the submissions made by the learned counsel for the parties.

14. The point that arises for consideration in this petition is:

“Whether the petitioner has made out a ground to refer the matter to the Arbitrator to r