The main legal point established is that the exchange of statements of claim and defence, along with the parties' consent, constitutes a valid arbitration agreement under Section 7(4)(c) of the Arbitration and Conciliation Act, 1996.

JUDGMENT :

G.S. Kulkarni, J.

This is an application filed under Section 14 and 15 of the Arbitration and Conciliation Act, 1996 (for short, "the Act") whereby the applicant has prayed for appointment of a substitute arbitrator, as the sole arbitrator as appointed by this Court has resigned.

2. This Court (K.R. Shriram, J.) by an order dated 12 February 2018 passed in Company Petition No.422 of 2016 appointed an arbitral tribunal of Ms. Manjiri Shah, Advocate of this Court, as agreed between the parties and by consent of the parties. The said order reads as under:-

"1. The counsel for petitioner and the counsel for respondent state that parties have agreed to refer their underlying disputes in this petition to be arbitrated by a sole arbitrator who can be appointed by this Court.

2. By consent, therefore, the following order is passed :-

(a) Ms. Manjiri Shah, an advocate practicing in this Court is appointed as sole arbitrator to arbitrate on the underlying claim in this petition including counterclaim, if any.

(b) The fees, administrative expenses of the Arbitrator and typing charges, if any, to be shared equally between the parties and the same will be costs in the arbitration proceedings.

(c) Within three weeks of receiving a copy of this order either from petitioner or the company, the arbitrator to make a disclosure in writing directly to the parties as required under Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996.

(d) All rights and contentions of thee parties are kept open except to question constitution of the arbitral tribunal.

3. Petition dismissed as withdrawn."

(emphasis supplied)

3. It is not in dispute that the learned sole arbitrator so appointed entered reference. Statement of claim came to be filed by the applicant on 4 April 2018. On behalf of the respondent, a statement of defence also came to be filed on 6 September 2018.

4. In the intervening period, the respondent also filed an application praying for an interim award for rejection of the petitioner's claim on the ground of limitation. The learned arbitrator adjudicated the said application and by an order dated 9 July 2018 rejected the said application. The arbitral proceedings in March 2019 had reached upto a stage that respondent's second witness was being cross examined by the applicant.

5. It clearly appears from the record that the respondent had wholeheartedly accepted reference of the disputes to arbitration, as per its consent and as recorded in the order dated 12 February 2018 passed by this Court (supra). Once by consent an arbitral tribunal was appointed, further as to how the parties have accepted the arbitral proceedings also becomes relevant and needs to be seen from the "statement of claim" and "statement of defence", more particularly in the context of Section 7 of the Act, which defines an arbitration agreement, and in the present case to be precise sub-section (4)(c) of Section 7. It would thus be necessary to note the averments of the applicant "with reference to arbitration", as made in paragraphs 33 and 39 of the statement of claim which read thus:-

"33. By an order dated 12th February 2018, by consent of the parties, the disputes in the Company Petition were agreed to be referred to the present Arbitral Tribunal. Hereto annexed and marked Exhibit "V" is a copy of the order dated 12th February 2018.

.......

39. The Purchase Order is dated 24th June 2013. The winding up petition was filed by the Claimant on 18th May 2016 which was within limitation and thereafter by an order dated 12th February 2018 the disputes were referred to arbitration. No part of the present claim is barred by the limitation and the claim is within the period of limitation."

(emphasis supplied)

6. The respondent filed a statement of defence and in dealing with the above paragraphs as made by the applicant in the statement of claim, the respondent stated as under:-

"28. With reference to paragraphs (28) to (33), the Respondent disputes and denies