The main legal point established is that when disputes cannot be amicably settled and certain claims are barred by limitation, there may be no requirement to refer the disputes for conciliation before arbitration, as per the contract.

1. This is an application under Section 11(6) of the Arbitration & Conciliation Act, 1996, as amended by Act 3 of 2015 (in short “the Act of 1996”) for appointment of an Arbitrator to adjudicate the dispute raised by the petitioner against the respondent relating to the contract dated November 28, 2008 and the General Conditions of Contract of 2008 under which the petitioner was to execute certain work at one of the steel plant of the respondent namely, IISCO Steel Plant, Burnpur.

Clause 10.1 of the contract contained the arbitral agreement which is, for the sake of convenience, extracted below:

10.1 Arbitration (Reference GCC Clause 6)

Any disputes, differences, whatsoever, arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this Contract shall be settled between the Employer and the Contractor amicably. If however, the Employer and the Contractor are not able to resolve their disputes/differences amicably as aforesaid the said disputes/differences shall be settled by Conciliation, failing which, through Arbitration.

Conciliation shall be resorted to prior to invoking Arbitration. The applicable rules for conciliation preceding shall be that of “SCOPE forum of Conciliation and Arbitration” (SCFA). The Arbitration clause is to be invoked by the parties to the contract only on failure of conciliation proceedings.

The arbitration shall be governed in accordance with Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”). The language of arbitration shall be English.

Arbitration shall be governed by the Rules of Indian Council of Arbitration (ICA)/“SCOPE Forum of Conciliation and Arbitration” (SCFA) as agreed by the party. The venue shall be New Delhi.

During the pendency of the Conciliation or Arbitration proceedings both the parties (i.e. the Contractor and the employer) shall continue to perform their contractual obligations.

The arbitral tribunal shall give reasons for its award. The tribunal shall apportion the cost of arbitration between the parties, the award rendered in any arbitration hereunder shall be final and binding upon the parties. The parties agree that neither party shall have any right to commence or maintain any suit or legal proceeding concerning any dispute under this agreement until the dispute has been determined in accordance with the arbitration proceeding provided for herein and then only to enforce or facilitate the execution of an award rendered in such arbitration.

The Court of Asansol, West Bengal, India (with exclusion of all other Courts) shall have exclusive jurisdiction over all matters of dispute.

2. By a letter dated May 11, 2017 the petitioner informed the Chief Executive Officer of the respondent that it has various claims against the respondent relating execution of the contract dated November 28, 2008 which the parties have failed to amicably settle amongst themselves and requested him to engage a conciliator under Article 10 of the said contract dated November 28, 2008 in Asansol for resolving the issues. By a letter dated July 28, 2017, the Deputy General Manager of the respondent informed the petitioner that the claims raised by it cannot be amicably settled and steps should be taken for initiation of the conciliation proceeding as per Clause 10.1 of the said contract as per the Rules of Conciliation of SCOPE Forum of Conciliation & Arbitration (hereinafter referred to “SCFA”). After receipt of the said letter dated July 28, 2017, by a letter dated July 31, 2017 the petitioner informed the respondent that since the issue involved got judicial intervention, a different view had been contended by it. Thereafter, on October 28, 2017 the petitioner filed this application before this Court for appointment of the Arbitrator.

3. In this application, the petitioner has claimed that since the parties have already failed to amicably settle the petitioner’s claim, there is no point in referring the disputes to any concili