The main legal point established in the judgment is that clear words expressing an unequivocal intent to accede to arbitration are a prerequisite before a party is referred to arbitration.

NAVIN CHAWLA, J.

1. This petition under Section 11 of the Arbitration and Conciliation Act, 1996 has been filed by the petitioner seeking appointment of an Arbitrator for adjudicating the disputes that have arisen between the parties in relation to the Collaboration Agreement dated 30.04.2011 executed between the parties.

2. Learned counsels for the respondents submit that there is no binding Arbitration Agreement between the parties contained in the Collaboration Agreement and therefore, the present petition is not maintainable.

3. The alleged Arbitration Agreement relied upon by the petitioner in support of the present petition is reproduced herein-below:

"That in case of any difference of opinion between the first party/owner and second party/builder in regard to the interpretation or scope of his agreement of any part thereof they should try to solve the problem to any Arbitrator."

(Emphasis Supplied)

4. The Collaboration Agreement also contains another clause which is reproduced herein-below:

"That this transaction has taken place at New Delhi and as such Delhi courts shall have exclusive jurisdiction to entertain any dispute arising out or in any way touching or concerning this Deed."

5. Learned counsels for the respondents submit that by use of the words "try to solve the problem" there is no binding Arbitration Agreement between the parties. In absence of any such binding agreement, the arbitration proceedings cannot take place without the consent of the respondents to agree to such arbitration. They rely upon the judgment of the Supreme Court in Wellington Associates Ltd. vs. Kirit Mehta, (2000) AIR SC 1379 in support of their contention.

6. On the other hand, learned counsel for the petitioner submits that mere use of the words "try to solve the problem" does not in any manner denude the Arbitration Agreement of its binding nature. He places reliance on the judgment of the Supreme Court in M/s Zhejiang Bonly Elevator Guide Rail Manufacture Co. Ltd. vs. Jade Elevator Components, (2018) 9 SCC 774 in this regard.

7. I have considered the submissions made by the learned counsels for the parties. In my opinion, the above referred clause does not constitute an Arbitration Agreement between the parties. The Agreement merely states that the parties should try to solve the disputes through arbitration. This, therefore, would not give a binding effect to the arbitration agreement, in the true sense of the word. The Agreement further states that the disputes, if any, arising between the parties shall be adjudicated through Courts at Delhi.

8. In Wellington Associates Ltd. (supra) the Supreme Court was confronted with the following clause which was being relied upon as an Arbitration Agreement between the parties:

"5. It is also agreed by and between the parties that any dispute or differences arising in connection with these presents may be referred to arbitration in pursuance of the Arbitration Act, 1940 by each party appointing one arbitrator and the arbitrators so appointed selecting an umpire. The venue of arbitration shall be at Bombay."

9. The Supreme Court, held as under:

"The words in sub-section (1) of Section 7 "means an agreement by the parties to submit to arbitration", in my opinion, postulate an agreement which necessarily or rather mandatorily requires the appointment of an arbitrator/arbitrators. Section 7 does not cover a case where the parties agree that they "may" go to a suit or that they "may" also go to arbitration.

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22. It is contended for the petitioner that the word "may" in clause 5 has to be construed as "shall." According to the petitioner's counsel, that is the true intention of the parties. The question then is as to what is the intention of the parties. The parties, in my view, used the words "may" not without reason. If one looks at the fact that clause 4 precedes clause 5, one can see that under clause 4 parties desired that in case of disputes, the civil courts at Bombay are to be approach