Point of Law: TDSAT has the exclusive jurisdiction to adjudicate upon all disputes that arise between the parties and those specified under the Act.

ORDER :

1. The petitioner, who is Managing Director of M/s. Mobile Star Satellite Communication India Limited, has filed this Arbitration Request invoking Section 11 of the Arbitration and Conciliation Act, 1996 seeking to appoint an Arbitrator pursuant to the request made by the petitioner.

2. The petitioner states that the petitioner entered into an agreement with the respondent-M/s. Asianet Satellite Communications Limited on 19.12.2013. The respondent violated the terms of agreement and therefore he sent Annexure-A4 letter to the respondent requiring to refer the matter for arbitration. The petitioner suggested the name of Advocate Francis Gomez. The respondent did not respond to the notice. Therefore, the petitioner approached this Court seeking to appoint an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996.

3. The respondent entered appearance and resisted the writ petition. The respondent stated that the petitioner is a Broadcaster and the respondent is a Multi System Operator. The parties are governed by the Telecom Regulatory Authority of India Act, 1997. If the petitioner has any grievance against the respondent in connection with the agreement executed between the parties, the petitioner has to invoke the provisions of the Telecom Regulatory Authority of India Act, 1997.

4. Counsel for the respondent argued that Section 14 of the Act, 1997 provides for establishment of an Appellate Tribunal. The Tribunal is competent to adjudicate any dispute between a licensor and a licensee, between two or more service providers and between a service provider and a group of consumers. Dominant public policy demands that all disputes in Telecom Sector which includes broadcasting and cable TV, should be within the exclusive jurisdiction of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) and arbitration agreement will not have any applicability. Arbitration is barred in respect of the matters which are within the exclusive jurisdiction of TDSAT.

5. The counsel for the respondent argued that the Telecom Regulatory Authority of India Act, 1997 being a special statute, it would prevail over the Arbitration and Conciliation Act, 1996. The counsel for the respondent relied on the judgement of the Hon'ble High Court of Delhi in Gaur Distributors v. Hathway Cable and Datacom Limited (ARB. P. 129/2016).

6. The counsel for the petitioner, on the other hand, argued that the respondent has admittedly entered into an agreement with the petitioner, under which all disputes, controversies, or differences arising out of or in connection with the agreement or for the breach thereof, shall be settled by arbitration in Trivandrum and the arbitration shall be governed by the Arbitration and Conciliation Act, 1996 and the Arbitration and Conciliation Rules, 1996 or any statutory amendment or re-enactment thereof. After entering into an agreement agreeing to settle all disputes through the process of arbitration, the respondent cannot now turn around and question the arbitrability of the dispute, contended the counsel for the petitioner. The counsel for the petitioner further argued that the dispute between the petitioner and the respondent will not fall within the ambit of the Telecom Regulatory Authority of India Act, 1997.

7. The counsel for the petitioner further pointed out that the respondent has filed complaints under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner. That itself would show that the parties are at liberty to approach competent courts/forums, other than the TDSAT.

8. I have heard the learned counsel for the petitioner and the learned counsel for the respondent.

9. Annexure-A1 is the agreement entered into between the petitioner and the respondent. The arbitration clause is contained in Clause 8 of the agreement governing law and dispute resolution. Clause 8 of Annexure-A1 agreement reads as follows:

8. GOVERNING LAW AND DISPUTE RESOLUTION :

The terms of this Agreement