Point of Law: Arbitration – Appointment of Arbitrator - Parties though had agreed to submit the jurisdiction of the High Court of Gujarat, they had not agreed to the procedure for the appointment of an Arbitrator. Therefore, it will be necessary to cursorily refer to the relevant provisions contained in Section 11, as regards the appointment of an Arbitrator in a situation, when the parties, though having agreed for the arbitration, have not agreed on the procedure for appointing an Arbitrator.

JUDGMENT :

1. The petitioner M/s. Alphard Maritime Pvt. Ltd., has preferred the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the said Act”), seeking following prayer:

“18. a. Appoint an independent Arbitrator for the purpose of resolving the dispute arose between the petitioner and the respondents under the Arbitration and Conciliation Act, 1996 (for short “the Act”) read with the Arbitration and Conciliation (Amendment) Act, 2019, No.33 of 2019.”

2. As per the case of the petitioner, the petitioner is a Company incorporated in India and is an owner of various tugs, barges and offshore vessels. The petitioner is the owner of the barge A M Abhik, on which the dry docking services were provided by the respondents, who belong to Malara firm, a proprietary firm of the Proprietor Mr.Ashish S. Joshi, the respondent No. 2 herein. The further case of the petitioner, as stated in the petition, is that the petitioner required dry docking services for the barge involved in the present dispute, for which the respondent No.2 had approached the petitioner with a quotation for the dry dock repairs of the barge at Sikka Port on behalf of the respondent No.1. Later as per the instructions of the petitioner, the respondent No.1 sent the quotations and the contractual terms on its letterhead vide Email on 26.9.2019 for the dry docking services to be provided, (Annexure-B Collectively). Clause-13 of the terms and conditions thereof is reproduced as under:

“13 Jurisdiction of arbitration will be at the High Court of Gujarat”.

3. According to the petitioner, though it was specifically provided in the contract that the dry docking activities will be completed in a time-bound manner i.e. within 30 days of the docking, the respondents took 120 days in completing the dry docking and also made other breaches of the contract, which were noticed by the petitioner subsequently i.e. after the payments were made to the respondents for the said work. According to the petitioner, it was forced to incur an additional cost of cleaning the tanks on the barge, and on account of the delay occurred in completing the work, the petitioner also suffered a loss of freight and other losses as a result of the breaches of the contract at the instance of the respondents. The petitioner, therefore, sent a notice dated 14.4.2020 through Email calling upon the respondents to pay the damages arising out of the breach of the contract amounting to INR 5,85,00,000/-and also invoked the arbitration Clause 13 requesting the respondents to appoint an independent and impartial sole Arbitrator as per the provisions of the said Act (Annexure-C). However, the respondents responded vide the Email dated 11.5.2020 stating inter alia that the respondents did not have any such contract as mentioned in their Email and asked the petitioner not to communicate on the subject in future. Thereafter, certain correspondences were exchanged between the parties in which the respondents refuted the very existence of the contract. The petitioner therefore has filed the petition seeking appointment of Arbitrator under Section 11 of the said Act, in view of the Clause-13 of the terms and conditions of the contract quoted by the respondents in Annexure-B.

4. The respondents have resisted the petition by filing an affidavit-in-reply, challenging the very maintainability of the petition under Section 11 of the said Act and contending inter alia that a quotation could not be said to be a contract. There was no agreement between the parties for referring the dispute to the arbitration. It is also contended that even if it was assumed that there was a contract between the petitioner and the respondents, then also a passing reference to the word “Arbitration” or “Arbitrator” in a contract would not constitute a valid agreement between the parties. The respondents have further contended that the petitioner had intentionally suppressed the fact that the pur