The main legal point established in the judgment is the maintainability of a writ petition challenging the validity of an arbitration agreement and the constitution of an arbitral tribunal, as per the Supreme Court decision in M/s. Konkan Railway Corporation Ltd. and Anr. v. M/s. Ram Construction Put. Ltd.

( 1 ) A judgment and order dated 14. 09. 2001, passed in an application filed by the respondent herein purported to be under section 11 of the Arbitration and Conciliation Act, 1996 ( hereinafter referred to as the Act ) being A. A. No. 236 of 1998 by a learned single Judge of this Court, is the subject matter of this writ petition.

( 2 ) HAVING regard to the question involved in this writ petition, it is not necessary to state the facts of the matter in great details.

( 3 ) 25. 11. 1994 in terms whereof the respondent was required to provide consultancy services for the "due Diligence Process" and project implementation activities for engineering, technological, environmental, economic, financial and legal analysis of the three targeted companies identified through-the "search and Screen Process".

( 4 ) PURSUANT to and in furtherance of the said agreement, services of sub-consultants were taken to prepare "due Diligence report" wherefor a service agreement was executed between the parties on 31. 03. 1995.

( 5 ) THE said report was delivered to the petitioner and the final version of the plant acquisition project was submitted on 13. 09. 1995, recommending acquisition of M/s. Mulberry Phosphates inc. , namely, the Peney Point Chemical Plant and the Wingate Creek mine.

( 6 ) DISPUTES and differences arose as the petitioner herein allegedly withheld payments against the outstanding invoices.

( 7 ) ALLEGEDLY both the service agreements provide for reference of disputes to arbitration.

( 8 ) THE respondent herein filed an arbitration application, which was marked as A. A. No. 109 of 1996.

( 9 ) HOWEVER, the said arbitration agreement was vague inasmuch as no procedure for appointment of an arbitrator had been laid down therein nor the said agreement provides for the number of arbitrator constituting arbitral tribunal.

( 10 ) VARIOUS contentions have been raised before the learned single Judge with which this Court is not concerned. Suffice it to point out that Clause 28 of the service agreement dated 25. 11. 1994 whereupon reliance has been placed by the respondents is as under: -

"arbitration except where otherwise provided in agreement, all questions and disputes relating to agreement, design, drawings, specifications, payments, instructions, orders or any other matter concerning WORK or the execution or failure to execute the same, whether arising during the progress of WORK or after completion or abandonment thereof or otherwise which cannot be settled amicably, shall be referred to arbitration. The arbitration shall be conducted under the rules and regulations of the Indian Arbitration act, 1940 and shall take place in New Delhi in accordance with INDIAN law. The award given by the arbitrators shall be final and binding on both parties and shall be enforceable in the country of the consultant and India. WORK shall be continued by the consultant during the arbitration proceedings unless otherwise directed in writing by OWNER or unless the matter itself is such that WORK cannot practically be continued until the decision of the arbitrators is obtained. Except as otherwise expressly provided in agreement, no payment due and payable by OWNER shall be withheld on account of such arbitration proceedings unless it is subject matter or one of the subject matters. "

( 11 ) IT is not in dispute that the service agreement dated 31. 03. 1995 also contains a similar Clause. 1

( 12 ) THE learned Single Judge referring to various decisions relied upon by the learned counsel appearing for the parties came to the conclusion that there exists a valid arbitration agreement between the parties. As regards the procedure, which is to be followed for appointment of the arbitrator and it was held :-

". . . On a perusal of the arbitration clause, it appears that the parties had intended to appoint more than one Arbitrators. Therefore, in terms of Arbitration Act of 1940 the reference of disputes shall be to two arbitrators and one umpire. "r