The court emphasized that the clear jurisdiction clause within the arbitration agreement led to habitual jurisdiction in the appointed court, regardless of other locations of execution.

JUDGMENT

(Judgment released on 20.04.2022)

1. By way of the present petition filed under section 11(6) of the Arbitration & Conciliation Act 1996 (A&C Act), the petitioner M/s Medela India Private Limited seeks appointment of an arbitrator for adjudication of disputes that are alleged to have arisen with the respondent M/s Walnut Corporation from Distribution Agreement dated 20.04.2018.

2. Notice in this petition was issued on 06.10.2021; whereupon reply dated 15.12.2021 was filed by the respondent.

3. Ms. Richa Singh, learned counsel for the petitioner, has drawn the attention of this court to clause 20.5 of the Distribution Agreement, which it is submitted, contains the arbitral mechanism and territorial jurisdiction clause as agreed to between the parties. Clause 20.5 reads as under:

"20 General Provisions

20.5 This Agreement is subject to Indian law. All disputes arising out of or in connection with the present Agreement shall be settled as per the Arbitration and Conciliation Act, 1996. The Tribunal shall consist of sole arbitrator appointed by Medela. This Agreement shall be governed by and interpreted in accordance with the laws of India, without regard to the conflicts of law's provisions thereof and shall be subject to the exclusive jurisdiction of courts of Delhi."

(emphasis supplied)

4. The petitioner contends that the respondent has defaulted on making certain payments towards invoices raised upon it by the petitioner, aggregating to about Rs.1.45 crores. It is stated that in view of such default, the petitioner caused to be issued to the respondent a demand notice dated 19.01.2020, calling upon the respondent to pay the outstanding amounts; but to no avail.

5. It is submitted that instead, the respondent sent a reply dated 28.01.2020 through its lawyer, calling upon the petitioner to furnish details about the transactions in relation to which the dues were claimed; thereby failing to pay-up the amounts claimed by the petitioner. Though the record shows that some attempts were made thereafter at reconciliation of accounts; however, it is contended that the demands remain unresolved.

6. Subsequently, vidi invocation notice dated 04.08.2020issued on its behalf, the petitioner reiterated its demands; and invoked the arbitration mechanism, setting-out its itemised claims; and calling upon the respondent to select one of the two retired Hon'ble High Court Judges nominated by the petitioner, as sole arbitrator to adjudicate upon the disputes that had arisen between the parties.

7. In response to invocation notice dated 04.08.2020, the respondent caused to be issued a lawyer's reply dated 02.09.2020, disputing the contentions and demands raised by the petitioner; and also declining to agree upon either of the two names proposed; but instead suggested as follows :

"That my client objects to the panel consisting of two distinguished persons drawn your client to be appointed as Sole Arbitrator as appointment of Retired High Court Judges is not agreeable in view of the quantum of money involved in the dispute and the appointment of any Retired District Judge would be appropriate to act as a Sole Arbitrator in this matter."

(emphasis supplied)

8. It would appear therefore, that vidi reply dated 02.09.2020 aforesaid, the respondent had in-effect admitted to the existence of an arbitration agreement between the parties;