The court emphasized that its role under Section 11 is solely to confirm the existence of an arbitration agreement, minimizing intervention, and facilitating dispute resolution through arbitration.

JUDGMENT

Vibhu Bakhru, J. (ORAL)--The petitioner has filed the present petition under Section 11 (6) of the Arbitration & Conciliation Act, 1996 (hereinafter the `A&C Act'), inter alia, praying as under:

"a) Appoint the Arbitrator named in the request for arbitration or any other suitable person, as Arbitrator to adjudicate the disputes between the Petitioner and the Respondent under the Tender No. CA/CNP/NFS/OFC/T-441-2013 issued on 21.6.2013 and the Purchase Order No. CT/PO/02/2014-15 dated 24.7.2014."

2. On 21.06.2013, the respondent (hereinafter `BSNL') issued a Notice Inviting Tender (NIT) for the `procurement, supply, trenching, laying, installation, testing and maintenance of Optical Fiber Cables, P.L.B., duct and accessories for construction of exclusive Optical NLD backbone and optical access routes on turnkey basis for Defence Network' (Tender No. CA/CNP/NFS/OFC/T-441-2013).

3. The petitioner submitted its bid pursuant to the aforesaid NIT quoting an amount of Rs.1810.57 crores for execution of the works and was declared the lowest bidder (L1) for Package-A in the State of Jammu & Kashmir.

4. After negotiations between the parties, the petitioner offered certain discounts and BSNL issued an Advance Purchase Order (APO) dated 30.06.2014 to the petitioner at a value of Rs.1640.57 crores. Thereafter, on 24.07.2014, BSNL issued a Purchase Order (PO) for supply and execution of the works for the aforesaid value, after taking into account, the discount of Rs.170 crores offered by the petitioner.

5. One of the controversies that has arisen between the parties in respect of the aforesaid contract is in respect of the `depth penalty' levied by BSNL. It is the petitioner's case that the tender did not contemplate that the petitioner would make trenches of the depth as claimed by BSNL. The petitioner contends that the tender sufficiently indicated that the depth of trenches would depend on the condition of the soil, which was classified as rocky and non-rocky.

6. The petitioner claims that in case of rocky soil, the depth of the trench, to be dug for laying the cables, was stipulated to be lower as compared to the depth that was required to be dug in case of non-rocky soil.

7. The petitioner claims that a substantial amount has been withheld by BSNL from the payments due to the petitioner, as BSNL has levied the `depth penalty' on account of the alleged default on the part of the petitioner in laying trenches of lower depth which was lower than as purportedly agreed in terms of the contract between the parties. The petitioner also claims that it had specifically requested for relaxation of the depth requirement in certain areas where it had encountered hard rock strata, however, no written decision in this regard has been rendered by BSNL.

8. As the disputes raised by the petitioner remained unresolved, on 11.07.2018, the petitioner issued a notice calling upon BSNL to immediately resolve the said issue, failing which, to refer the disputes to arbitration. The petitioner issued another notice dated 24.08.2018 reiterating the same. However, BSNL has not taken any steps for appointment of an arbitrator or reference of disputes to arbitration.

9. BSNL does not dispute that it had issued a Purchase Order and the terms and conditions of the contract between the parties include an agreement to refer the disputes to arbitration.

10. The Arbitration Clause as contained in General Conditions of the Contract (GCC) as forming a part of the contract between the parties is set out below:

"71. Arbitr