The existence of an arbitration agreement is sufficient for appointing an arbitrator, despite claims of alternative statutory remedies.

Order :

SUDESH BANSAL, J.

1. Heard counsel for both the parties and perused the record.

2. This is an arbitration application filed by the applicant under Section 11 of the Arbitration & Conciliation Act, 1996 for appointment of an arbitrator to resolve/ settle the dispute, in respect of non-clearance of pending bills of applicant by the respondent. The arbitration agreement, finds place in Clause6.38 of tender document reads as under:-

“Any dispute existing out of contract shall be settled according to the provision of arbitration and conciliation act, 1996.”

3. Having heard counsel for both the parties and from perusal of the respective pleadings and documents enclosed therewith, it transpires that the applicant stood as a successful bidder, in the NIB no. F4.3(159)/RISL/Tech/15/14316 dated 25.02.2021, issued by the respondent-RISL, a contract was awarded in his favour which was required to be completed in terms of four milestones detailed out in para No.4.4 of the tender document which reads as under:-

4. It is the case of the applicant that all four milestones have been completed by the applicant yet only payment of invoices for milestone No.1 have been cleared and the invoices for milestones No.2, 3 and 4 have not been cleared, hence, such dispute is required to be referred to the arbitrator for resolution in accordance with the Arbitration & Conciliation Act, 1996.

5. In the reply filed by the respondent and arguments made by counsel for the respondent, while disputing the completion of milestones No.2,3 and 4 and denying to clear the pending Bills/ invoices of applicant for such reason, the arbitration application has been resisted fundamentally on the ground of availability of the remedy of filing appeal by the applicant under Section 38 of RTPP Act, 2012 which is also provided in Clause 5(20) of the tender document. The contention of counsel for respondent is that the statutory remedy of appeal is available to the applicant under the special enactment of RTPP Act, 2012 which shall prevail over the arbitration agreement, entered into between the parties, to resolve/ settle the dispute under the Arbitration &Conciliation Act, 1996 which is a General Law.

6. In support of such contentions, reference of two judgments namely, Gujarat Urja Vikash Nigam Ltd. Vs. Essar Power Ltd. [(2008) 4 SCC 755] and Gujarat State Civil Supplies Corporation Ltd. and Ors. Vs. Mahakali Foods Pvt. Ltd. (Unit 2) and Ors. [(2023) 6 SCC 401] have been made by the counsel for respondent.

7. This Court finds that the dispute, in respect of non- clearance of the bills/ invoices of applicant for milestones No.2, 3 and 4, for whatsoever reason may be, has arisen between the parties and undeniably the arbitration agreement, to resolve any dispute/ differences arising between the parties finds place in the tender document. Hence, written arbitration agreement exists between parties.

8. The legal issue raised by the counsel for the respondent in respect of ouster of jurisdiction of Arbitrator on subject matter of dispute, on account of availability of statutory remedy of appeal to petitioner under RTPP Act, 2012, can be considered and gone into by the Arbitrator in exercise of its powers envisaged by virtue of Section 16 of the Arbitration & Conciliation Act, 1996.

9. The High Court, being a referral Court while dealing wi