The main legal point established in the judgment is the exclusive jurisdiction of the High Court to appoint an arbitral tribunal under section 11 of the Arbitration and Conciliation Act, 1996, and the requirement to examine the existence of an arbitration agreement before exercising such jurisdiction.

JUDGMENT :

1. This is a petition filed under section 11 of the Arbitration and Conciliation Act, 1996 (for short “ACA”) whereby the petitioner has prayed for appointment of an arbitral tribunal to adjudicate the disputes and differences between the parties, which have arisen under two Agreements entered by the petitioner with the respondent both dated 30 June, 2012 for Design, Procure, Manufacture, Supply and Supervision of Erection and Commissioning of one no. 75 TPH MCR Capacity, 72.5 kg/cm2 (g) pressure, 515ºC ± 5ºC steam temperature Multi fuel fired Boiler with accessories for 12.5 MW - Generation Project being set up at Alegaon, Tal. Madha, Dist. Solapur, Maharashtra. There is no dispute in regard to the arbitration agreement as contained in both the agreements, which is contained in Clauses 15 and 14 of the respective agreements.

2. As disputes and differences had arisen between the parties, the petitioner by its advocate’s notice dated 3 December, 2020 invoked the arbitration agreement and called upon the respondent to appoint a sole arbitrator to adjudicate the disputes which have arisen between the parties. The name of the nominee arbitrator was also suggested in paragraph 5 of such notice. As set out in paragraph 4, of such notice the petitioner invoked arbitration in respect of both the agreements. The petitioner’s claim against the respondent is of an amount Rs.1,33,37,723/-. As the notice invoking arbitration was not replied, the present petition was required to be filed by the petitioner.

3. This petition was initially filed on the Original Side of this Court, as a Commercial Arbitration Petition, on the assumption that the dispute between the parties being a commercial dispute the same was required to be filed on the original side of this Court although no cause of action to invoke such jurisdiction had arisen within Mumbai. Such petition was permitted to be transferred to the Appellate Side by an order dated 7 March, 2022 passed by this Court. It is accordingly listed before the Court on the appellate side.

4. Learned counsel for the petitioner has submitted that there clearly exists an arbitration agreement as contained in Clauses 15 and 14 as noted above. He submits that also there is a lawful invocation of such arbitration agreement. It is submitted that the Court in these circumstances needs to exercise jurisdiction to appoint an arbitral tribunal for adjudication of the disputes which have arisen between the parties under the said two agreements. He makes a statement that the Court fees in both the agreements have been paid on the proceedings.

5. On the other hand, learned counsel for the respondent has raised an objection to the maintainability of this petition, before the High Court referring to the provisions of Section 10 (3) of the Commercial Courts Act, 2015. The submission as made by learned counsel for the respondent is to the effect that the present proceedings being in the nature of Commercial Arbitration proceedings, this Court would not have jurisdiction under section 11(6) of the ACA Act to appoint an arbitrator inasmuch as subsection (3) of Section 10 of the Commercial Courts Act, provides that if an arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of ACA would ordinarily lie before any principal civil court of original jurisdiction in a district (not being a High Court), which shall be filed and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted. It is his submission that the Commercial Courts Act, 2015 is a legislation subsequent to the ACA which was brought into force on the 23rd day of October, 2015, as sub-section (3) of Section 1 would provide. It is hence his submission that the principal Civil Court of original jurisdiction in the present proceeding would be the designated Court at Pune or th