1. The applicant has approached this Court invoking jurisdiction of this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act” for the sake of convenience)

2. The facts in brief giving rise to the application are as under:-

That a contract for sale and purchase of Indian Iron Ore was entered between the respondent as a seller and the applicant as a buyer. Since according to the applicant there was breach in regard to the terms and conditions of a contract between the parties, an application came to be filed under Section 9 of the said Act before the learned District Judge, Panaji for certain interim reliefs against the respondent. That the said application is pending before the learned District Judge. The applicant thereafter invoked clause 14 of Memorandum of Understanding (“MOU” for short), vide communication dated 27.1.2012. After that till 16.7.2012, except certain exchange of correspondence between the parties, the matter has not proceeded much further. The applicant has therefore invoked jurisdiction of this Court under sub-section 6 of Section 11 of the Act.

3. Heard Dr. Harsh Pathak, learned counsel appearing on behalf of the applicant and Mr. D. Shirodkar, learned counsel appearing on behalf of the respondent.

4. Dr. Harsh Pathak, learned counsel appearing on behalf of the applicant submits that arbitration agreement as per MOU provided for appointment of one arbitrator each of the parties. He submitted that the applicant addressed a notice dated 27.1.2012 thereby invoking clause 14 of the MOU and calling upon the respondent to attend the meeting at hotel Fidalgo, Panaji, Goa on 27.2.2012 at 3.30p.m. It is however submitted that there has been no positive response from the respondent. He further submitted that the respondent has been delaying the matter on one pretext or the other and avoiding either Arbitral Tribunal to be constituted or being put to function in effective manner. Learned Counsel therefore submitted that this is a fit case wherein this Court should exercise jurisdiction under Section 11 (6) of the said Act. He further submitted that in view of the Section 10 of the said Act, this is a fit case wherein this Court should appoint a sole arbitrator. Learned counsel relied on the judgments of the Apex Court in the case of Deep Trading Company Vs. Indian Oil Corporation and ors, (2013) 4 SCC 35, Union of India Vs. Singh Builders Syndicate, ( 2009) 4 SCC 53. He has also relied upon the judgment of the Delhi High Court in the case of Akshaya Jain Vs. Airports Authority of India, 2000(3) ARBLR 563 Delhi and the judgment of the Andhra Pradesh High Court in the case of K. Venkateshwarlu Vs. State of A.P. and another., 2003(3) ARBLR 440 AP.

5. Shri Shirodkar, on the contrary, submits that the Arbitral Tribunal has to be constituted only as per the agreement, between the parties. Learned counsel submits that when the agreement as can be read from clause 14 of the MOU clearly provides two arbitrator to be appointed by each of the parties and having that been done, it is not permissible for this Court to exercise jurisdiction under Section 11(6) of the said Act.

6. Learned counsel further submits that it is not permissible for this Court while sitting in jurisdiction to appoint an arbitrator under Section 11(6) of the Act to rewrite the contract between the parties. Learned counsel in the alternative submitted that since the Arbitral Tribunal has already come into existence, the jurisdiction under sub section 6 of Section 11 cannot be exercised by this Court. Learned Counsel relies on judgments of the Apex Court in the case of National Highways Authority of India and another Vs. Bumihiway DDB Ltd (JV) and others, (2006) 10 SCC 763; Narayan Prasad Lohia Vs. Nikunj Kumar Lohia and others, (2002)3 SCC 572, Rajasthan State Industrial Development and Investment Corporation and another Vs. Diamond & Gem Development Corporation Limited and another, (2013) 5 SCC 470