JAYANT NATH, J.

1. This petition is filed under section 11 of the Arbitration and Conciliation Act, 1996 to secure appointment of an independent and impartial arbitral tribunal for adjudication of the disputes between the parties.

2. The petitioner is a company having its registered office at Delhi. The respondent is also a private limited company but having its registered office at Chennai.

3. The petitioner in the year 2011 floated a tender for the proposed construction of a factory building at Non-SEZ, Phase-III, Mugundarayapuram, Ranipet, Vellore, Tamil Nadu. The proposal of the respondent dated 20.8.2011 was accepted by the petitioner vide Job Order dated 29.8.2011 for a total consideration of Rs.2,47,28,726/-. The said Job Order is said to have been accepted by the respondent vide its letter dated 2.9.2011.

4. It is the contention of the petitioner that during the course of execution of the work the respondent did not adhere to the terms and conditions of the contract. On 23.8.2012 the respondent raised a final bill for Rs.12,70,109/- and claimed a balance outstanding of Rs.29,15,624/- from the petitioner. It is contended by the petitioner that they have in all paid a sum of Rs.1,67,79,812.40/- and that no further amount is payable to the respondent. It is pleaded that the petitioner has expressly brought to the notice of the respondents major defects in the work done.

5. On 18.8.2015 the respondent filed against the petitioner before the Madras High Court a Civil Suit against the petitioner being CS 735/2015 for recovery of Rs.29,15,623.69/- together with interest. By order dated 3.8.2016 the Madras High Court was pleased to allow the application of the petitioner under Section 8 of the Arbitration Act and gave liberty to the parties to approach the competent court under the provisions of the Arbitration Act. The Court observed that existence of the arbitration clause is not disputed by either of the parties. The present petition has now been filed by the petitioner seeking appointment of an impartial and independent arbitral tribunal.

6. I may note that the pursuant to the liberty granted by the Madras High Court, the respondent also filed a petition under Section 11(6) of the Arbitration Act, before the Madras High Court. However, the Madras High Court vide its order dated 03.03.2017 noted that the petition in the Madras High Court was filed on 15.09.2016 whereas the petition seeking appointment of an arbitrator was filed by the petitioner before this court on 11.08.2016. The filing of the petition before this court was prior to in time. Hence, in view of Section 11(11) of the Arbitration Act, without expressing any opinion on the controversy raised by the parties on merits, the Madras High Court disposed of the said petition.

7. The respondent admits existence of an Arbitration clause but has refuted the contention of the petitioner regarding territorial jurisdiction of this Court. It is pleaded in the reply that on 08.06.2011, the petitioner issued a tender notice inviting bids. The tender notice contained an arbitration clause which provided that the venue of arbitration would be Chennai and the courts in Chennai would have territorial jurisdiction. It is urged that subsequently, when the petitioner accepted the offer of the respondent and issued the job order dated 29.08.2011, certain modifications were made in the arbitration clause. However, the salient terms of the arbitration clause as contained in the tender, namely, that the disputes are deemed to have arisen in Chennai, the venue of arbitration shall be Chennai and the courts in Chennai shall have the territorial jurisdiction were not changed. It is pleaded that on 02.09.2011 the respondent sent a communication accepting the job order of the petitioner but suggesting a different arbitration clause. It is again pleaded that even in this communication there was no alteration of three salient features of the original arbitration clause. It is pleaded that t