The main legal principle established in the judgment is that the existence and interpretation of an arbitration agreement are fundamental to the exercise of jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996. The judgment also emphasizes the importance of interpreting commercial documents based on the intention of the parties and adopting a plain and common-sense interpretation of the words employed.

1. Both the arbitration application and the arbitration petition have been filed by the same Petitioner and are taken up for final disposal together.

2. The Application is filed for appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996. The Petition is filed under Section 9 of the Act for interim reliefs pending disposal of the arbitral proceedings.

3. A contention has been raised by the Respondent that there is no arbitration agreement between the parties. Since the relief prayed for in both, the application as well as the petition, will depend upon resolution of this question, it will have to be decided first. It is however necessary to give a brief background of the dispute to understand the context to which this question has arisen.

4. The Petitioner-NAS Aviation Services India Pvt. Ltd.(NAS) is a company which provides ground handling services to airline companies in India. The Respondent-Kingfisher Airlines Limited (Kingfisher) is a company which provides Scheduled Air Transport Services (passenger). NAS and Kingfisher entered into a cargo handling contract on 22 June 2009. Under this contract, NAS was to provide ground and cargo handling services to Kingfisher. On 23 September 2009, NAS called upon the Kingfisher to pay its dues. NAS stated that the dues are around Rs.9 crores, however only an amount of Rs.60 lakhs is received by it and the bank concerned has issued a letter to confiscate and repossess the assets, due to non-payment of term loan EMI on the equipment’s procured for Kingfisher-Flight Handling Services. The NAS called upon the Kingfisher to pay at least an amount of Rs.5 crores. According to NAS, on 18 November 2009, NAS received payment of Rs. 3.7 crores and thereafter had received the payment of Rs.1 crore. On 20 November 2009, NAS called upon the Kingfisher to release advances of an amount of Rs.3.5 crores. In the meanwhile, NAS and Kingfisher renewed the main agreement dated 13 April 2007 and 1 May 2010 by which NAS continued providing the ground handling services to the Kingfisher and also provided ground handling services at various airports in Goa, Ahemdabad, Nagpur, Indore, Delhi, Lucknow, Varansi etc. It is the case of NAS that on 28 April 2011, it was agreed that certain amount would be released by Kingfisher to NAS. Since this amount was not paid by Kingfisher, the parties exchanged various letters. The issue as regards the payments was not be resolved. Finally, NAS by letter dated 9 October 2012 terminated the agreement dated 1 May 2010 and called upon the Kingfisher to clear all outstanding dues. According to NAS, an attempt was made to resolve the dispute amicably by holding a meeting on 18 February 2013 at 3.00 p.m. thereupon it invoked the arbitration clause and sought appointment of an arbitrator. Since there was no favourable response from the Kingfisher, NAS has filed this application and the petition for appointment of an arbitrator and for interim reliefs.

5. I have heard Mr. Mayur Khandeparkar, learned counsel for Petitioner-NAS and Mr. Rohaan Cama, learned counsel for Respondent-Kingfisher.

6. According to Mr. Khandeparkar, the agreement dated 1 May 2010 provides an arbitration clause. He submitted that a notice has been issued by NAS duly invoking the arbitration clause and since the Kingfisher has failed to act as per the arbitration agreement, an arbitrator needs to be appointed under Section 11 of the Act. He submitted that Kingfisher is avoiding to go for arbitration on frivolous grounds, such as the agreement has not been signed by NAS and that there is no arbitration clause. He submitted that Article 9 of the agreement is only dealt with interpretation of contract and is not an arbitration clause for resolution of dispute. He submitted that Article 13 of the Agreement which in the arbitration clause, makes it abundantly clear that all the disputes and differences between the parties in connection with the agreement including i