Point of Law: Arbitration - Agreement - Once arbitration clause 27 stood invoked by applicant and in terms of clause 27 Divisional Commissioner, nominated Additional Collector to entertain and decide arbitration proceedings by his communication in writing, clause 27 could not have been invoked again before the Divisional Commissioner, by filing arbitration proceedings.

JUDGMENT :

1. Heard Mr. Thigle, learned counsel for the applicant and Mr. Munde, learned AGP for the non-applicants.

2. It is not in dispute, that an agreement for transport of food grains and other commodities come to be executed, between the applicant, and the Governor of Maharashtra, in pursuance to tenders, invited by the Collector, Nandurbar on 30/03/2001, which agreement, was for a period of 01/04/2001 to 31/05/2006, at the remuneration, as contained in term no.3 of the agreement. Mr. Thigale, learned counsel for the applicant, submits, that the contract was extended by two years and was continued till 31/05/2008. The applicant claimed entitlement to rates over and above 5% per year, which was claimed to have been agreed in term no.3 and raised a claim, that he should be paid the difference in rate between what was agreed in agreement and the rates paid for transportation in the other districts due to general increase. As this request was turned down by the District Supply Officer, Nandurbar by his communication dated 13/07/2009, the applicant invoked the arbitration clause 27, as contained in the agreement dated 30/03/2001. The Commissioner, nominated the Additional Collector, to be the Arbitrator vide his communication dated 16/02/2010. The Additional Collector, Nashik, by his order dated 10/05/2010 (page 36), rejected the claim of the applicant. The applicant, being aggrieved from the same, approached the Commissioner, who by his order dated 16/06/2011, held, that since the issue regarding difference of rates, related, to the nine districts, therefore it was desirable, that the Government should take a decision, as the government by the communication dated 08/05/2006, had already directed, that only 5% escalation should be given and nothing else. Mr. Thigle, learned counsel for the applicant submits that this order dated, 16/06/2011, cannot be termed as an award, as nothing was decided by the Commissioner therein, as a result of it, it did not satisfy the requirements of Section 31 of the Arbitration and Conciliation Act 1996 (A & C Act, for short hereinafter). He further submits, that the applicant was instructed to approach the civil court, as a result of which, the applicant filed RCS No. 89 of 2012 (Prakash Askaran Jain vs. State of Maharashtra and others), which came to be decreed, on 08/02/2019, by issuance of a mandatory injunction directing the defendant no.2 therein, i.e. Divisional Commissioner, Nashik, to decide the claim/dispute of the applicant about the difference of average rate of transportation charges as prayed by the applicant, as early as possible. It is also submitted, that an appeal against the said judgment and decree is presently pending before the District Judge-I at Shahada being Civil Application No. 15/2019 which has been filed by the non-applicants.

3. It is in this background, that the application has been filed for appointment of an independent qualified arbitrator to adjudicate the dispute in terms of clause 27 of the agreement dated 30/03/2001 within stipulated time.

4. Learned counsel Mr. Thigle, contends that the judicial opinion, has always leaned in favour of referring a dispute to arbitration, and wherever, there is any doubt, the dispute should be referred to an arbitrator, for which he placed his reliance upon Vidya Droliya and others Vs. Durga Trading Corporation, 2021 (2) SCC 1.

5. He further submits, placing reliance upon Shailesh Dhairyawan Vs. Mohan Balkrishna Lulla, 2016 (3) SCC 619 that a purposive construction needs to be adopted, in respect of arbitration maters. Further relying upon Mayavati Trading Limited Vs. Pradyuat Deb Burban, 2019 (8) SCC 714, he submits that the role of the Court under Section 11, is limited to examination of the existence of an arbitration clause and once its existence is not disputed, there is no other option to the Court, than to appoint the arbitrator.

6. He further submits, that considering the nature of the order dated 16/06/2011, passed by the