The language used in the clauses and the qualifications of the designated arbitrator are crucial in determining the existence of an arbitration agreement.

NAVIN CHAWLA, J.

1. This petition under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to the ‘Act’) has been filed by the petitioner praying for appointment of an Arbitrator for adjudication of the disputes that have arisen between the parties under the agreement dated 22.03.2013 for “Construction of Multistoried Housing Complex, "Rise" at Ramprastha City, Sector 37-D, Gurgaon, Haryana”.

2. It is contended by the learned counsel for the petitioner that the said agreement contains an Arbitration Agreement in Clause 69 of the General Condition of Contract-Part-1 of the Agreement. Relying upon the Clause 68, 69 and 70, it is submitted that while Clause 68 provides for settlement of disputes through the intervention of the Chairman of the respondent, Clause 69 provides for resolution of the disputes through Arbitration and the Chairman of the respondent has been designated as the Arbitrator. He further submits that Clause 70 of the Agreement provides for venue for the arbitration to be at New Delhi and therefore this Court would have jurisdiction to entertain this request for appointment of an Arbitrator. It is further submitted that the petitioner had invoked the Arbitration Agreement vide its notice dated 06.02.2017, however, as respondent has failed to appoint an arbitrator, the present petition under Section 11 of the Act has been filed

3. Learned senior counsel for the respondent submits that, in fact, there is no Arbitration Agreement between the parties. It is submitted that Clause 69 of the Agreement referred by the petitioner is not an Arbitration Agreement; it is only a mode of further settlement of the disputes. He relies upon the judgments of Supreme Court in P. Dasaratharama Reddy Complex v. Government of Karnataka, (2014) 2 SCC 201; International Amusement Ltd. v. India Trade Promotion Organization, (2015) 12 SCC 677 and M/s Master Tours and Travels v. The Chairman, Shri Amarnath Ji Shrine Board & Ors, 2016(1) SCALE 69 in support of his submission. He further submits that merely because the heading of Clause 69 of the Agreement reads “Arbitration”, the same would not make this an Arbitration Agreement. He relies upon the judgment of the Supreme Court in M/s H.M.Kamaluddin Ansari and Co. v. Union of India and Ors.(1983) 4 SCC 417 to submit that the heading of a Clause will not control the plain meaning of the words of the Clause. He submits that use of words “venue of Arbitration”, by themselves cannot amount to an Arbitration Agreement. In this regard, he relies upon the judgment of Karnataka High Court in Durha Constructions Pvt. Ltd v. Bateman Engineering (India) Pvt.Ltd., MANU/KA/2252/2011.

4. I have considered the submissions of the learned counsel for the parties. For answering the submissions made by the parties, I first reproduced Clause 68, 69 and 70 of the Agreement as under:

“68. SETTLEMENT OF DISPUTES BETWEEN EMPLOYER & CONTRACT:

If any dispute or difference of any kind whatsoever arises between the Employer and the Contractor in connection with, or arising out of the Contract, whether during the progress of the works or after their completion and whether during the progress of the works or after their completion and whether before or after the termination, abandonment or breach of the Contract, it shall in the first place, be referred to and settled by the Chairman of M/s Ramprastha Promotors and Developers Pvt. Ltd.(Employer) who shall, within a period of thirty days after being requested by the contractor to do so, give written notice of his decision to the Contractor and the employer. Upon receipt of the written notice of the decision of the Employer the Contractor shall promptly proceed without delay to comply with such notice of decision.

69. ARBITRATION

All question & dispute relating to the meaning of specification, designs, drawings and instructions and to the quality of workmanship or materials used in the work or as to any other question, claim, right, matter of