JUDGMENT :

Navin Chawla, J.

1. This petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) seeking appointment of an Arbitrator for adjudicating the disputes that have arisen between the parties in relation to the Franchise Agreement dated 21.05.2019 executed between the parties. The Arbitration Agreement is contained in Clause 29 of the Franchise Agreement and is reproduced herein below:

“29. DISPUTE RESOLUTION, ARBITRATION & COURTS JURISDICTION

a. If a dispute arises in relation to, touching, arising out of, or in connection with this Agreement shall be resolved amicably at the first instance whereby referring the same to Managing Directors/Directors of both the parties. The final outcome of the same whether resolved or unresolved, as the case may be, shall be recorded in writing. Unresolved disputes, •controversies, contests, disputes, if any, shall be submitted to arbitration within 30 days from the date of failure to resolve the dispute or difference. The Arbitration shall be conducted in accordance with the Provisions of the Arbitration and Conciliation Act, 1996 along with the rules framed there under and any amendments thereto by a sole arbitrator, duly appointed by the FRANCHISER. The Ld. Arbitrator appointed shall be either a Retired Judge of the Hon'ble Delhi High or a Senior Advocate with a standing of at-least 20 years before the Bar. The arbitration shall be conducted in English. The decision/award of the arbitrator shall be final/ conclusive and binding on the parties. The seat of arbitration shall be at New Delhi. The Arbitrator's fee shall be borne by the all the parties equally.

b. Notwithstanding anything contained in clause 29 (a) mentioned herein above, this agreement shall not preclude either party from seeking temporary, provisional, or injunctive relief from courts having jurisdiction over this agreement.”

2. The dispute having arisen between the parties, the petitioner addressed a Demand Notice dated 28.03.2022 to the respondents. Having received no response, the petitioner terminated the Franchise Agreement vide notice dated 29.07.2022, and called upon the respondents to undertake various steps pursuant thereto. Again, as no response was received from the respondents, the petitioner invoked the Arbitration Agreement vide notice dated 29.08.2022. As the respondents did not reply to the said notice as well, the present petition was filed.

3. The learned counsel for the respondents submits that the pre- condition for invoking the Arbitration Agreement has not been complied with by the petitioner. He submits that the Arbitration Agreement will come into play only where the attempt to amicably resolve the disputes by referring the same to the Managing Directors/Directors of both the parties has failed, and such failure is recorded in writing. In the present case, the petitioner never sought the reference of the disputes to the Managing Directors/Directors of the parties. He submits that, in fact, the respondents made attempts to meet the Managing Director of the plaintiff company, however, the same failed. He submits that without following the pre-condition mandated in Clause 29, the petitioner cannot invoke the Arbitration Agreement. In support, he places reliance on the judgment dated 10.10.2022 passed in FAO(OS)(COMM) 9/2019, titled M/s Welspun Enterprises Ltd. v. M/s NCC Ltd. He further submits that even otherwise, the claims raised by the petitioner are frivolous and are liable to be rejected. These are a clear case of deadwood.

4. On the other hand, the learned counsel for the petitioner submits that the petitioner, prior to invoking the Arbitration Agreement, had addressed the Demand Notice dated 28.03.2022 as also the Termination Notice dated 29.07.2022 to the respondents. The respondents did not even respond to the said notices. He submits that, therefore, the occasion of referring the dispute to the Managing Directors/Directors of th