An arbitration agreement must evidence an unambiguous intention to refer disputes to arbitration, and mere use of the word 'arbitration' is not sufficient to construe an agreement as an arbitration agreement.

JUDGMENT

Jyoti Singh, J. Present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Act') for appointment of a sole Arbitrator in respect of a Supply Agreement dated 18.08.2017.

2. The controversy in the present case pertains to construction of Clause 15.7 of the Agreement dated 18.08.2017 and while it is the contention of the Petitioner that Clause 15.7 is an arbitration clause providing for reference of the disputes between the parties to Arbitration, Respondent contends to the contrary. Before proceeding to examine this issue, it would be necessary to have a bird's eye view of the facts obtaining between the parties.

3. As per the Petitioner, a Supply Agreement was executed between the parties on 18.08.2017 for supply of products such as organic sugar, organic molasses, etc. customised for the Petitioner. The agreement inter alia contains a clause mandating exclusivity on the part of the Respondent for markets in U.S.A. and Europe where the Petitioner desired to acquire supply of these products. Subsequent thereto, parties entered into several other agreements for different quantities of the products, however, parties are ad idem that no other agreement contains any clause akin to Clause 15.7 in the Agreement dated 18.08.2017.

4. Petitioner asserts that it terminated the Agreement on 29.09.2019 on account of breach of the exclusivity clause by the Respondent. Notice dated 07.08.2022 was issued by the Petitioner, invoking Clause 15.7 of the Agreement dated 18.08.2017 seeking reference of the disputes to arbitration.

5. One of the many objections raised by the Respondent to the appointment of an Arbitrator is that the agreement between the parties does not contain an arbitration clause. Clause 15.7 relied upon by the Petitioner cannot be construed as an arbitration agreement as it does not indicate intention of the parties to resolve their disputes through the mechanism of arbitration. Clause 15.7 only provides that parties are at liberty to seek equitable/interim/provisional relief from a Court of competent jurisdiction including temporary or permanent injunction concerning a dispute, either prior to or during `any arbitration' to protect their interests and preserve the status quo pending arbitration proceedings. There is nothing in the Clause which can be construed to mean and connote that parties envisaged appointment of an Arbitrator. Additionally, Clause 15.2 which is an exclusive jurisdiction clause shows that parties intended that any dispute pertaining to the Agreement would be decided by a Civil Court at Delhi and both clauses 15.2 and 15.7 have to be read together and given a harmonious construction. Learned counsel for the Respondent placed reliance on the following judgments:

(a). Nilesh C. Sanghani and Others v. Rakesh V. Zangda and Others, 2007 SCC OnLine Bom 530;

(b). Jagdish Chander v. Ramesh Chander and Others, (2007) 5 SCC 719;

(c). K.K. Modi v. K.N. Modi and Others, (1998) 3 SCC 573;

(d). Bharat Bhushan Bansal v. U.P. Small Industries Corporation Ltd., (1999) 2 SCC 166;

(e). Bihar State Mineral Development Corporation and Another v. Encon Builders (I) (P) Ltd., (2003) 7 SCC 418;

(f). State of Orissa and Another v. Damodar Das, (1996) 2 SCC 216; and

(g). Groupe Chimique Tunisien SA v. Southern Petrochemicals Industries Corpn. Ltd., (2006) 5 SCC 275.

6. Per contra, learned counsel for the Petitioner strenuously and eloquently contended that Clause 15.7 of the Agreement dated 18.08.2017 is an arbitration agreement between the parties, which is reflected from the words `prior to or during any arbitration'. A holistic reading of Clause 15.7 shows that parties intended arbitration as a mechanism for adjudication of their disputes, however, for the purpose of seeking any equitable or interim relief/interim injunction, parties were free to approach a Court of competent jurisdiction. Counsel for the Petitioner sought to place reliance on the judgm