SANJIB BANERJEE, J. :

In the respondent resisting the constitution of the arbitral tribunal as invited by the petitioner, several fundamental issues have been raised, some going to the cutting-edge of arbitration law. The respondent insists that the present request under Section 11 of the Arbitration and Conciliation Act, 1996 is not maintainable in view of both the provisions of the said Act of 1996 and Section 69 of the Partnership Act, 1932.

The petitioner claims to be a partnership firm, now registered, with parents and son Sethis as its recorded partners. There is no dispute that the firm has been registered prior to the present request being carried to the Chief Justice or his designate and the names of the partners of the petitioner-firm are now reflected in the appropriate register of firms.

The petitioner-firm is engaged in the construction business and it is the admitted position that the parties entered into an agreement contained in a letter of February 12, 2007 issued by the respondent for construction of buildings in a project known as Kolkata West International City floated by the respondent. Clause 16 of the agreement is relied upon by the petitioner as the arbitration clause:

“16. ARBITRATION:

Any dispute arising out of this contract, the decision of the Managing Director, Unitech Limited will be final and binding to contractor.”

According to the petitioner, disputes and differences have arisen between the parties which are covered by the perceived arbitration agreement contained in the matrix contract. The petitioner claims that substantial sums remain due to it from the respondent and that payments have not been made despite several demands. The petitioner claims to have invoked the arbitration agreement by its letter of January 31, 2012 addressed to the person designated as arbitrator. The petitioner has relied on documents to demonstrate that the letter addressed to the arbitrator was duly posted and ought to have been received by the arbitrator. The petitioner issued a subsequent letter of September 3, 2012 informing the arbitrator that since the arbitrator had not taken any steps for commencement of the reference and had, by his conduct, withdrawn from office, the petitioner construed the arbitrator’s mandate to have been terminated. The letter of September 3, 2012 appears, from the material downloaded from the India Post website, to have been delivered to the arbitrator on September 11, 2012.

The petitioner thereafter carried a request under Section 11 of the 1996 Act by way of AP No. 376 of 2012 which the petitioner withdrew on August 21, 2012 with liberty to file afresh. The present request has been filed on October 11, 2012.

The several objections canvassed by the respondent as to the maintainability of this request had been strenuously urged in course of a previous round of hearing. Almost at the close of the previous round of hearing, it was submitted on behalf of the respondent that since the letter of invocation of January 31, 2012 had not been served on the respondent, the present request could not be pursued. It was at such stage that the petitioner sought to file a supplementary affidavit to demonstrate that copies of its letter of invocation of January 31, 2012 had, indeed, been served on the respondent and its senior officials. Since it was a question of fact that had to be brought on record, the petitioner was permitted to file a supplementary affidavit, but subject to substantial costs being paid for the enormous waste of court time. The supplementary affidavit has been filed; the respondent has used a re-joinder thereto; and, it is now the stand of the respondent that one of its officials did receive a copy of the letter invoking the arbitration agreement. The respondent claims that its earlier submission may have been misunderstood and it had only sought to assert that the petitioner had no cause of action to carry this request to the Chief Justice or his designate since the peti