Appointment of an arbitrator requires a valid arbitration agreement, and serious allegations of fraud or fabrication must be addressed before appointing an arbitrator.

Akil Abdul Hamid Kureshi, J.

1. This petition is filed for appointment of an arbitrator to decide disputes between the petitioner and the respondent, which, according to the petitioner, have arisen out of a contract dated 01.02.2008. This arbitration petition is strongly opposed by the respondent on the ground that no such agreement was ever executed by the respondent-company.

2. Brief facts are as under:

Case of the petitioner is that, under an agreement dated 01.02.2008, the petitioner agreed to supply digested slurry to the respondent-company for a period of five years w.e.f. February-2008 for a total estimated amount of Rs. 1.5 crores. This document contained arbitration clause in following manner:

"6. Arbitration and Jurisdiction:--

All disputes that cannot be settled by Mutual Negotiations shall be referred to arbitration, according to the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof in force at that time. The venue of such arbitration shall be at the Vadodara office of the company.

All the causes of action relating to this agreement, if any, shall be deemed to have arisen within the jurisdiction of the courts at Vadodara, Gujarat State.

Any amendments or alteration to this agreement shall be valid only if set down in writing and signed by the parties to this contract."

3. Case of the petitioner further is that, pursuant to such contract, the petitioner supplied slurry to the respondent-company from time to time as per the demand raised. Respondent also paid part of the amount. However, substantial amount remained unpaid. After sending email to the respondent to make regular and full payment when the respondent failed to do so, the petitioner issued notice dated 30.10.2014 to the respondent-company for appointment of an arbitrator. In such notice, the petitioner referred to and relied on the said agreement dated 01.02.2008.

4. In response to such notice, the respondent replied under their advocate's letter dated 12.11.2014 and denied the company having ever executed the said agreement dated 01.02.2008. In fact, it was conveyed that, the company had not executed any agreement for purchase of slurry from the petitioner. At several places, the respondent-company disputed very existence of the said agreement dated 01.02.2008.

5. The petitioner, thereupon, filed this arbitration petition. Heavy reliance is placed by the counsel for the petitioner on the said agreement dated 01.02.2008 which purports to carry the signature of one Shri Mehul Buddhadev, who was, at the relevant time, one of the Directors of the respondent-company. Petitioner also pointed out that the running accounts maintained by the respondent-company pertaining to the petitioner would clearly demonstrate that large quantity of digested slurry was supplied by the petitioner to the respondent, for which, part payment was also made. According to the counsel for the petitioner, thus, there is clear indication of existence of agreement, pursuant to which, even the respondent received slurry supplied by the petitioner. Counsel also placed reliance on the email correspondence made by the petitioner with respondent-company, in which, issue of unpaid dues was raised.

6. Basing reliance on the decisions of Supreme Court in case of Hythro Power Corporation Ltd. vs. Delhi Transco Ltd., reported in 2003 (8) SCC 35 counsel submitted that, there was an arbitration clause in the agreement. In case of dispute, the issue can still be left for the arbitrator to decide. In the present case, however, the evidence on record would clearly suggest existence of such agreement.

7. On the other hand, the case of the respondent is that, no such agreement was ever executed. The signature of Shri Mehul Buddhadev is not genuine. In any case, mere signature on last page of the document would not establish that the contract was actually executed. The petitioner himself was a Director of the respondent-company for a short while a