JUDGMENT :

Bharati Dangre, J.

The two Petitions filed under section 11 of the Arbitration and Conciliation Act, 1996, arise out of an Agreement for Sale and Supply entered at Mumbai on 10/2/2020, between the petitioner, a Company incorporated under the Companies Act and the respondent, another Company.

The respondent is engaged in providing end-to-end cash and digital payment solutions and automation technology, and since it desired to supply the Equipment and Software to the applicant, with the claim of 'Exclusivity', the terms and conditions were accordingly incorporated in the agreement.

The scope of the agreement was clearly spelt out therein, along with the requirement of raising of invoices and payment. It also incorporated the relevant clauses of warranties as well as Intellectual Property Right (IPR) along with the clause for default followed by a termination.

The agreement also contained a clause for governing law and jurisdiction and contemplated that if any dispute arises therein, the validity, interpretation, implementation, enforcement or alleged breach thereof, including the question whether the termination of the agreement by either of the parties is legitimate or not, shall be resolved amicably, but if not, the dispute shall be referred to Arbitration to be conducted in accordance with the Arbitration and Conciliation Act, in force at the relevant time.

The clause also stipulated as under :

"If a dispute is referred to arbitration, such dispute shall be resolved by a Sole Arbitrator to be appointed by AGS TTL i.e. the respondent."

2. This is the bone of contention between the parties, as it can be seen that on the dispute arising out of the agreement, on 13/1/2023, the respondent served a notice upon the applicant, alleging default and breaches and by setting out a claim for damages to the tune of Rs.21,50,00,000/-. (Rupees Twenty One crore fifty lakhs). The communication specifically relied upon Clause 19 and amounted to invocation of the arbitration seeking appointment of impartial and independent sole arbitrator. However, immediately thereafter, on 20/2/2023, the respondent unilaterally appointed a sole arbitrator, and communicated that he shall be making disclosure as contemplated under section 12(1) of the Arbitration and Conciliation Act. Such an approach was strongly opposed by the petitioner and a communication was addressed to the learned Arbitrator seeking his recusal, by stating that this is not the manner in which his appointment can be effected.

Resultant, even the petitioner invoked arbitration and appointed a retired Judge of this Court as an Arbitrator.

3. The appointment of a Sole Arbitrator at the instance of respondent is prayed to be set aside and it is informed that he had already entered the reference.

This is again strongly opposed by the respondent with the result that the petitioner and the respondent both have claims against each other and ultimately, both of them are desirous of resolving them through the sole arbitrator, as contemplated in clause 19.2 of the Agreement. However, they could not agree as to the common name of the Arbitrator and I am not at all impressed by the arguments advanced by the learned counsel for the respondent, relying upon sub-section (2) of Section 11 r/w sub-section (6) in the wake of the law, which has been very well settled by the Apex Court as well as this Court, that there cannot be unilateral appointment of an Arbitrator and in case, if the other party is objecting to the name of the arbitrator appointed by one of the party, then the Arbitrator is not competent to enter the reference.

However, since there exists a dispute, which according to the agreement, is to be resolved through the Arbitration process by appointing a sole arbitrator and since the applications are filed