The main legal point established in the judgment is the narrow scope of examination of the existence of an arbitration agreement under Section 11(6) of The Arbitration and Conciliation Act, 1996, as interpreted in the Mayavati case law.

JUDGMENT

(Prayer: Arbitration Original Petition filed under Section 11(6) of The Arbitration and Conciliation Act, 1996 praying to (i) Appoint an Arbitrator to adjudicate the disputes between the petitioner and Respondent in terms of the Agreement dated 14.06.2019 at Chennai; and (ii) Direct the respondent to pay costs.)

1. This order will now dispose of the captioned matter.

2. This order has to be read in conjunction with and in continuation of proceedings made by this Court in the listing on 13.07.2022, which reads as follows:

'Arb.O.P(Com.Div.)No.302 of 2022

M.SUNDAR.J.,

Captioned 'Arbitration Original Petition' [hereinafter 'Arb OP' for the sake of convenience and clarity] presented in this Court on 23.06.2022 under Section 11 of 'The Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)' [hereinafter 'A and C Act' for the sake of convenience and clarity] with a prayer for appointment of an Arbitrator is predicated on clause 12 of an Agreement dated 14.06.2019 between the petitioner-Company and respondent-Firm. This 14.06.2019 agreement shall hereinafter be referred to as 'primary contract' for the sake of convenience and clarity.

2. Mr.D.Senthil Kumar, learned counsel on record for petitioner submits that primary contract is for provision of financial assistance to the respondent on the understanding that respondent would allocate civil works to the petitioner when the respondent gets orders to do such works. It is submitted that the petitioner-Company is carrying on business of development of property / civil works contractor and that the respondent- Firm is in the business of sourcing and business implementation mostly regarding Government works / contracts.

3. Aforementioned clause 12 of primary contract reads as follows:

‘12. Any disputes between the parties arising out of or connected with this agreement shall be referred to and finally determined by arbitration under a sole arbitrator to be agreed between the parties hereto. The Arbitration shall be held as per the provisions of the Arbitration and Conciliation Act, 1996 and shall be held in Chennai in the English language. The arbitral award shall be final and binding upon the parties.'

4. Learned counsel for the petitioner submits that there is an addendum to primary contract being an addendum dated 07.09.2020 but that does not contain a arbitration clause. It is not necessary to dilate much on this and it would suffice to say that the captioned Arb OP is predicated on the aforementioned clause 12 of primary contract which serves as an Arbitration Agreement between the petitioner-Company and respondent-Firm i.e., 'Arbitration Agreement' between the parties within the meaning of Section 2(1)(b) read with Section 7 of A and C Act. Learned counsel submits that arbitrable disputes erupted between the petitioner-Company and respondent-Firm when the primary contract was worked as the respondent-Firm allegedly became due / liable to return financial assistance, cheque given by the respondent-Firm was dishonoured. This broadly stated inter alia is the arbitrable dispute between the parties.

5. Learned counsel submits that a notice dated 12.05.2022 was sent to a member of Bar requesting the member of Bar to act as Hon'ble Arbitrator. Normally, this cannot be construed as a trigger notice. However, in this case post 12.05.2022 letter the proposed arbitrator has sent a communication dated 17.05.2022 inter alia to the respondent-Firm, the respondent has replied vide communication dated 30.05.2022 refusing to give consent for appointment of sole Arbitrator and respondent has stated that absent consent, the Arbitrator cannot proceed with the arbitral proceedings. This has necessitated the presentation of captioned Arb OP in this Court on 23.06.2022 is learned counsel's say. Respondent has been put on notice about the invocation of arbitration clause, it is quite possible to treat the captioned Arb OP as one for substitution if need be is learned counsel's fur