Point of Law: Arbitration - Undisputedly both the parties had intended to refer the disputes to the arbitration and had accordingly agreed for the same. Hence, there being existence of arbitration agreement, and the Sole Arbitrator having been appointed, as per the procedure agreed upon by the parties, all the other issues as regards the jurisdiction or about the validity of the arbitration agreement could be decided by the Arbitrator.

JUDGMENT :

1. The petitioner M/s.Pradeep Transcore Private Limited, has approached this Court by way of the present Arbitration Petition, invoking Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the said Act”), seeking following prayer as contained in Paragraph 15:-

“15(A) This Hon'ble Court may be pleased to appoint the sole arbitrator as per Article 18 of the MOU/Agreement executed on 6.2.2019 and signed on stamp paper on 10.7.2019 and in accordance with powers under Section 11 of the arbitration and Conciliation Act, 1996 in order to submit the disputes between the parties to arbitration.”.

2. The limited short facts necessary for the purpose of deciding the present application are as under:-

2.1 The petitioner is a Company incorporated under the Companies Act, 1956, engaged in the business of manufacturing transformers and other allied electrical equipments and then selling them to various manufacturers across the country. The petitioner has a plant for carrying out its manufacturing works at Allahabad.

2.2 The respondent TBEA is a company incorporated under the Companies Act, 1956 and is a wholly owned subsidiary of the Chinese Multi National Company, TBEA engaged in the business of manufacturing transformers having its registered office and Industrial Unit at Vadodara, where it is engaged in the business of manufacturing power transformers and other electrical equipments.

2.3 The petitioner and the respondent, on 6.2.2019, entered into an MOU/Agreement containing terms and conditions that were finalized between the parties on E-mail. The said agreement essentially was for the supply of job-work, whereby the respondent had promised to supply the petitioner with job-work of 5000 Tons per annum of CRGO Lamination and 6000 Tons of slitting job-work for a lock-in period of 7 years. According to the petitioner, the said agreement dated 6.2.2019 was signed on the Stamp Paper by the Managing Directors of both the parties at the Vendors Meet organized on the 10th July, 2019 at Vadodara.

2.4 Article 18 contained in the said agreement dated 6.2.2019 pertaining to the Arbitration reads as under:

“Article 18 – Arbitration

(a) Any and all disputes or differences between the parties arising out of or in connection with this MOU or its performance shall, so far as it is possible, be settled amicably between the parties.

(b) If after thirty (30) days of consultation the parties fails to reach an amicable settlement, on any and all disputes or differences arising out of or in connection with this MOU or its performance, the same shall be referred to a dispute resolution committee consisting of CEO's of PTC and TBEA, India.

(c) If after thirty (30) days of reference such dispute to the dispute resolution committee, the parties fail to resolve such disputes or differences, such disputes or differences shall be submitted to arbitration at the request of either party upon written notice to that effect to the other party and such arbitration shall be conducted in accordance with Arbitration and Conciliation Act, 1996.

(d) The language of arbitration shall be English. The venue of arbitration shall be Vadodara, India.”

2.5 As per the further case of the petitioner, the respondent did not abide by the terms of the agreement, and therefore, the petitioner sought enforcement of the said agreement. Thereafter number of E-mail communications ensued between the parties. Both the parties also organized a meeting between the CEOs of both the companies on 9.7.2020, however, no solution was arrived at.

2.6 The petitioner thereafter addressed a written communication/Notice dated 2.7.2020 to the respondent calling upon the respondent to submit the dispute to the arbitration as per Article 18 of the said MOU dated 6.2.2019. The further case of the petitioner is that the respondent's legal representative replied to the said Notice vide the reply dated 11.8.2020 stating inter alia that the said MOU dated 6.2.2019 was not in force any