The main legal point established in the judgment is that the requirement for amicable settlement through consultation before invoking arbitration is not mandatory and failure to comply does not warrant dismissal of the petition.

JAYANT NATH, J.

1. This petition is filed under Sections 11(4) and 11(5) of the Arbitration and Conciliation Act, 1996 seeking appointment of an arbitrator. Some of the relevant facts are that on 20.01.2004 and 22.01.2004 a letter of employment was issued by the petitioner to the respondent which was followed by detailed terms of the letter of employment dated 22.01.2004. The respondent joined the petitioner as 'Senior Vice President, ERP- Practices'. On 01.04.2015, as the respondent was reaching the age of 60 years the parties executed an agreement whereby the respondent was to continue his association with the business of the petitioner as a full-time consultant. It is the case of the petitioner that the respondent resigned from his service on 17.06.2016.

2. Disputes having arisen between the parties, the petitioner invoked the arbitration clause on 04.04.2017. The respondent on 17.04.2017 refuted the contents of the notice of the petitioner. As there was no consensus on the Arbitrator hence, the present petition.

3. I have heard learned counsel for the parties. The learned counsel for the respondent has vehemently submitted that though he does not deny the arbitration clause but in terms of the arbitration agreement, the parties had to first follow settled procedure of trying to resolve the matter amicably. Having failed to do the needful it is urged that the present petition is pre-mature. He relies upon judgment of the Rajasthan High Court in M/s Simpark Infrastructure Pvt. Ltd. V. Jaipur Municipal Corporation 2013 (1) WLN 111 to support his contention.

4. The learned counsel for the petitioner has relied upon the judgment of this court in Shri Ravinder Kumar Verma v. BPDT Ltd. 2015 (147) DRJ 175 to contend that this court held while dealing with a similar clause as that of the present petition that such a clause is not mandatory in nature.

5. I may first look at the arbitration clause in question. Clause 6 of the agreement dated 01.04.2016 reads as follows:

“6. GOVERNING LAW AND DISPUTE RESOLUTION

(a) This Agreement shall be governed and interpreted by, and construed in accordance with the substantive laws of India, without giving effect to the principles of conflict of laws thereunder.

(b) Any and all disputes or differences between the Parties arising out of or in connection with this Agreement or its performance shall, so far as it is possible, be settled amicably through consultation between the Parties or their designated representatives for this purpose.

(c) If after 30 (thirty) days of consultation, the Parties at dispute have failed to reach an amicable settlement, on any or all disputes or differences arising out of or in connection with this Agreement or its performance, such disputes or differences shall be submitted to final and binding arbitration at the request of either of the party upon written notice to that effect to the other.

(d) Such arbitration shall be in accordance with the [Indian] Arbitration and Conciliation Act, 1996 and the rules made thereunder (which rules are deemed to be incorporated in this Agreement by reference herein) and shall be held in New Delhi.

(e) Arbitration awards rendered shall be final and binding and shall not be subject to any form of appeal. The losing Parties, as determined by arbitrators, shall pay all reasonable out-of-pocket expenses (including, without limitation, reasonable attorneys' fees) incurred by the prevailing Parties, as determined by the arbitrators, in connection with any dispute unless the arbitrators direct otherwise.”

6. The issue is as to whether the petitioner had followed the procedure as stated above i.e. to try and settle the matter amicably through consultation between the parties and thereafter approach this court for appointment of an arbitrator. Further if that was not done whether the procedure so stated for first carrying out “amicable consultation” can be said to be a mandatory provision.

7. A perusal of the documents filed shows that on 24.02.