SOUMEN SEN, J.

1. The initiation of an arbitration proceeding on the basis of an arbitration clause in an agreement by appointment of an arbitrator at the instance of a borrower when a proceeding under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the “RDB Act”) is pending before the Debt Recover Tribunal, is the central issue in this application for appointment of an arbitrator.

2. The respondent contends that the recovery of RDB Act is a special statute and all disputes coming within the purview of the said Act can only be adjudicated by a Tribunal duly constituted under the RDB Act.

3. Mr. Abhrajit Mitra, learned Senior Counsel appearing on behalf of the petitioner submits that the parties have voluntarily agreed to have all there disputes and differences adjudicated by way of arbitration and in view of Sections 5 and 8 of the Arbitration and Conciliation Act, 1996, the Tribunal is precluded from proceeding with the application filed by the Bank under Section 19 of the RDB Act. It is submitted that although in the event it is contended and held that Section 5 would not apply to a proceeding before the Tribunal even then by reason of an agreement between the parties, the bank cannot resile from having the said dispute adjudicated by arbitration. It is submitted that the parties have voluntarily agreed to have their disputes resolved through arbitration notwithstanding the introduction of the 1993 Act and the Bank having agreed to such procedure and mode of adjudication has consciously abandoned and/or waived its right to claim an adjudication otherwise then by way of an arbitration. The learned Senior Counsel has relied upon the decision of Co-ordinate Bench in HDFC Bank Ltd. Vs. Bhagwandas Auto Finance Limited & Anr., a Division Bench judgment dated 21st January, 2011 (Bhagwandas Auto Finance Ltd. & Ors. Vs. H.D.F.C. Bank Ltd.) affirming view expressed by the learned single Judge and a Full Bench Decision of the Delhi High Court in HDFC Bank Ltd. Vs. Satpal Singh Bakshi reported at 2013 (134) DRJ 566 (FB).

4. It is submitted that the right of a constituent to file a suit notwithstanding the RDB Act, 1993 is not affected by the RDB Act and in this regard the learned Senior Counsel has relied upon a decision of the Hon’ble Supreme Court in Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai Banking Corporation reported at (2009) 8 SCC 646 and Indian Bank Vs. ABS Marine Products (P) Ltd. reported at (2006) 5 SCC 72.

5. Mr. Mitra has referred to Paragraphs 105-111 of Nahar Industrial Enterprises Ltd. (supra) in support of the submission that the right of the debtor to maintain an action in the Civil Court is not barred notwithstanding the enactment of RDB Act, 1993. Similarly, the petitioner as constituent is also entitled to invoke the arbitration clause and seek remedy by arbitration.

6. It is submitted by Mr. Mitra, the learned Senior Counsel, that the arbitration proceeding has commenced prior to the institution of the proceeding by the bank before the Debt Recovery Tribunal. It is submitted that an application under Section 9 of the Arbitration and Conciliation Act, 1996 was filed on 19th August, 2015 being AP No. 1364 of 2015. The bank filed an application for recovery of proceeding under Section 19 of the RDB Act, 1993 on 16th October, 2015. The notice for commencement of the arbitration proceeding under Section 21 was issued by the petitioner on 24th November, 2015. In between several orders were passed by this Court in the Section proceeding by and under which payments were made by the petitioner and accepted by the HDFC Bank. Mr. Mitra submits that the learned single Judge after receiving the benefit under several orders passed in the said proceeding, a failed attempt was made by the respondent to argue that the appearance of the respondent in the said proceeding is without breach to its right in respect of the claim carried to the Deb