JUDGMENT :

JASGURPREET SINGH PURI, J.

1. The present application has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) praying for appointment of an independent Sole Arbitrator to adjudicate upon the disputes and differences which have arisen between the parties.

2. Mr. Parmanand Yadav, learned counsel for the applicant has caused appearance through video conferencing with Mr. Ambanshu Sahni, Advocate, who is present in Court, submitted that there was an agreement (Annexure P-2) executed between the applicant and the respondents which was in the nature of a collaboration agreement. In the aforesaid agreement, there exists a valid arbitration clause i.e. Clause 20 which provided that in case any dispute arises between the parties relating to this agreement, then the same will be firstly settled mutually by the parties and in case the same is not settled with mutual consent of the parties, in that event the matter will be referred to arbitration as per the provisions of the Act. He further submitted that when a dispute arose between the parties and the same was not settled mutually, the applicant invoked the aforesaid arbitration clause by issuing notice under Section 21 of the Act to the respondents, which was sent by way of speed-post/email on 02.12.2024 (Annexure P-3).

3. Learned counsel further submitted that the respondents have however taken an objection with regard to the aforesaid agreement that an Arbitrator cannot be appointed in view of the fact that the date of the collaboration agreement is 21.07.2021, which is so reflected on the first page of Annexure P-2 whereas the petitioner-Company, which is a private limited company, was incorporated under the Companies Act vide Annexure R-1 on 11.08.2021, which is after the aforesaid date and this objection raised by the respondents is neither maintainable nor sustainable.

4. While elaborating his arguments on the aforesaid issue, learned counsel for the applicant submitted that he has brought the original agreement before this Court and Annexure P-2 is an exact photocopy of the said original agreement. He while referring to the said original agreement submitted that a perusal of the first page of the aforesaid collaboration agreement (Annexure P-2) would show that it was drawn up on 21.07.2021 and the petitioner-Company was incorporated on 11.08.2021 vide Annexure R-1 and thereafter, the stamp paper were purchased on 20.08.2021, which is evident from the first page of the agreement. Furthermore, the parties signed the collaboration agreement on 15.11.2021 which is apparent from the last page thereof. He also submitted that in this way, even if the agreement was drawn up and was got typed prior to the incorporation of the Company, it would make no difference as the same was duly executed by the parties through their signatures on 15.11.2021, which is a date subsequent to the date of incorporation of the petitioner-Company i.e. 11.08.2021. Therefore, the aforesaid objections raised by the respondents are not sustainable and hence, any independent Sole Arbitrator may be appointed by this Court since all the essential conditions under Section 11 of the Act stand fulfilled.

5. On the other hand, Mr. Shahzeb Ahmed, learned counsel for the respondents has submitted that once the Agreement (Annexure P-2) itself states on its first page that it was executed on 21.07.2021 when the petitioner-Company was not even in existence because the petitioner- Company was incorporated on 11.08.2021, then it would mean that the agreement itself is not in existence and since the agreement itself is not in existence, the arbitration clause cannot be given effect to by this Court in exercise of powers under Section 11 of the Act.

6. To substantiate his arguments, learned counsel has referred to Para No.2(f)(iii) of the application wherein it is averred that the petitioner and respondents entered into a binding collaboration agreement on 21.07.2