The Court's examination under Section 11(6A) of the Arbitration and Conciliation Act, 1996 is limited to the existence of an arbitration agreement, and objections, including inadequacy of stamp duty, are to be considered by the arbitrator.

J.R. MIDHA, J.

1. The petitioner is seeking appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.

2. The arbitration agreement between the parties is contained in Clause 10 (e) of the MOU dated 17th September, 2016 which is reproduced hereunder:

"10. General Terms and Conditions

(e) In case of any dispute, parties have agreed that, Transferee had the right to appoint a neutral third party as arbitrator and all arbitration proceedings shall be in accordance with the provisions of The Arbitration and Conciliation Act, 1996. Place of arbitration shall take place be New Delhi."

3. The petitioner invoked the arbitration vide notice dated 27th September, 2018 and suggested the name of a retired Supreme Court Judge to act as a sole arbitrator.

4. The respondent replied to the said notice on 03rd November, 2018 in which the respondent did not agree to the appointment of an arbitrator.

5. According to the petitioner, there is a valid arbitration agreement between the parties contained in Clause 10 (e) of the MOU dated 17th September, 2016 and the petitioner has validly invoked the said arbitration vide notice dated 27th September, 2018.

6. According to the respondent, Clause 10 (e) of the MOU dated 17th September, 2016 does not constitute a valid arbitration agreement; MOU provides a remedy of specific performance and therefore, no arbitration can be carried out for resolution of disputes; the MOU dated 17th September, 2016 is a compulsorily registerable document but is neither registered nor requisite stamp duty has been paid thereon and therefore, the document is liable to be impounded by this Court and cannot be acted upon till the requisite stamp duty is paid thereon. Reliance is placed on Jagdish Chander vs. Ramesh Chander, (2007) 6 Scale 325, SMS Tea Estates Pvt. Ltd. vs. Chandmari Tea Company Pvt. Ltd. (2011) 14 SCC 66 and Avinash Kumar Chauhan vs. Vijay Krishna Mishra, (2009) 2 SCC 532.

7. Learned senior counsel for the petitioner urged at the time of the hearing that Section 11(6A) of the Arbitration and Conciliation Act provides that the Court has to confine itself to the examination of existence of an arbitration agreement only and all objections of the respondent have to be considered by the arbitral tribunal. Reliance is placed on SMS Tea Estates Pvt. Ltd. vs. Chandmari Tea Company Pvt. Ltd. (supra). Reliance is also placed on Duro Felguera, S.A. vs. Gangavaram Port Limited, (2017) 9 SCC 729, SBP and Co. vs. Patel Engineering Ltd. (2005) 8 SCC 618, National Insurance Co. Ltd. vs. Boghara Polyfab Pvt. Ltd. (2009) 1 SCC 267 Sandeep Soni vs. Sanjay Roy, 2018 SCC Online (Del) 11169 and Coastal Marine Construction and Engineering Ltd. vs. Garware Wall Ropes Ltd. 2018 SCC Online (Bom) 541 in support of the above proposition that the issue of arbitrability should be left to the decision of the arbitral tribunal. It is further submitted that the MOU dated 17th September, 2016 is sufficiently stamped. Without prejudice, it is submitted that respondent's objection to the stamping has to be considered by the arbitral tribunal. Reliance is placed on Sandeep Soni vs. Sanjay Roy (supra) in which this Court held that the objection of inadequately stamping cannot impede the appointment of an arbitrator and it is for the arbitrator to exercise the power under the Indian Stamp Act, 1899 if the agreement is found insufficiently stamped. Reliance is also placed on Coastal marine Construction and Engineering Ltd. vs. Garware Wall Ropes Ltd. (supra) and Jumbo Bags Ltd. vs. The New India Assurance Co. Ltd. (2016) 2 LW 769.

8. Learned counsel for the respondent urged at the time of the hearing that the MOU dated 17th September, 2016 is not duly stamped and therefore, liable to be impounded under Sections 35 and 38 of the Indian Stamp Act in the first instance. With respect to the judgment of SMS Tea Estates Pvt. Ltd. vs. Chandmari Tea Company Pvt. Ltd. (supra), it was submitted that the insufficiently sta