The use of the word 'Arbitration' in the heading of an agreement does not automatically establish the existence of an arbitration agreement.

ORDER

1. By this petition, the petitioner seeks appointment of an Arbitrator for resolving the disputes in relation to the software development arising out of the agreement dated 29th July 2021 between the parties and costs.

2. According to the petitioner, the petitioner and the respondent entered into a Master Service Agreement on 29th July 2021. After the start of the project, the petitioner raised concerns due to the delay on the part of the respondent. On 3rd December 2021, the petitioner wrote an email to the respondent to resolve all differences amicably by dialogue. On 6th December 2021, the respondent informed the petitioner that there is an 'expectation mismatch' and therefore, the 'project is put on hold'. The respondent introduced a new person for communication with the petitioner and showed no intent of resolving the issues flagged by the petitioner. Hence, on 8th February 2022, the petitioner sent a legal notice to the respondent invoking arbitration. The respondent replied to the legal notice of the petitioner on 13th February 2022 stating that there was no arbitration agreement between the parties.

3. Clause 11 of the Master Service Agreement dated 29th July 2021 between the parties reads as under: -

"11. Jurisdiction, Arbitration & Dispute Resolution This Agreement and any dispute or claim relating to it, its enforceability or its termination shall be governed and interpreted according to the laws of India Subject to this Clause 11, the Courts at Delhi, shall have exclusive jurisdiction over any disputes under this Agreement".

4. Clause 11 of the Agreement dated 29th July 2021 does not provide that the parties agreed to refer their disputes for resolution through arbitration though the heading of Clause 11 mentions the words 'Arbitration & Dispute Resolution'. On the basis of the heading of the Clause 11 noting the word 'Arbitration', the petitioner claims resolution of disputes arising between the parties through arbitration.

5. The issue whether the use of word 'Arbitration' in the heading of an Agreement would entail existence of an arbitration agreement was dealt by this Court in the decision reported as (2014) 210 DLT 714 Avant Garde Clean Room & Engg. Solutions Pvt. Ltd. Vs. Ind Swift Limited. This Court held-

"15. In Bernhard Consultancy Private Ltd. (supra), the term which was set up as an arbitration agreement contained in clause 14 read as follows:

"Arbitration - The parties agree that the jurisdiction in relation to all matters arising under and/or in any way connected with this Moil shall be subject to the jurisdiction of Courts at Hyderabad. Arbitration if any shall also be at Hyderabad. The parties have confined the jurisdiction to Hyderabad Courts also have jurisdiction in the matter, the parties hereto shall be prevented from moving a Court other than the Court at Hyderabad."

16. The Chief Justice of the Andhra Pradesh High Court rejected the petition by observing as follows:

"8. Although the heading of clause (14) aforementioned is "arbitration" the same is not an arbitration agreement within the meaning of the Act. It merely provides that the Courts at Hyderabad shall have jurisdiction to entertain any suit. It merely adds that arbitration if any shall also be at Hyderabad but by reason thereof only, it cannot be said that any arbitration agreement has been entered into which was enforceable in terms of Section 11 of the Act."

17. In Trimex International FZE Limited, Dubai (supra), though the respondent contended that the clause extracted above suffered from the vice of being unclear and ambiguous and, therefore, not capable of being enforced, the Supreme Court rejected the said submission by observing that it was clear that the intention of the parties was to arbitrate any dispute which arose in relation to the offer and acceptance. In this decision, one does not find any discussion of the applicable principles-as found in the other decisions cited by the respondent, which could apply for determination