ORDER :

1. The prayer made in the present application filed under Section 11(6) of the Arbitration and Conciliation Application Act, 1996 (hereinafter referred to as the "Act") is for appointment of an Arbitrator for resolution of dispute between the parties.

2. Mr. Mathur, learned Senior Advocate, appearing for the applicant, submitted that an agreement was signed between the applicant and respondent-Dakshinanchal Vidyut Vitaran Nigam Limited (hereinafter referred to "DVVNL") on May 18, 2009 for distribution of electricity in urban areas of Agra for which the respondent was a Distribution Licensee. Clause 17 of the agreement provides for resolution of disputes between the parties. Clause 17.2.5. provides for arbitration. Clause 17.1.2 provides for jurisdiction of the Court for entertaining all the disputes between the parties. It has been mentioned as Agra/Allahabad. The venue of arbitration has been provided under Clause 17.2.8 to be at Lucknow.

3. From the aforesaid clauses, it is evident that for all routine disputes, the Clause 17.1.2 may be relevant. However, for arbitration point of view, the seat being at Lucknow, the proceedings will be at Lucknow. Even if the proceedings could be at Allahabad, in fact the dispute falls within the jurisdiction of Allahabad High Court, hence it can be at either of the places. In support of his argument, reliance is placed on Brahmani River Pellets Limited Vs. Kamachi Industries Limited (2020) 5 SCC 462.

4. Referring to the procedure provided in the agreement for resolution of disputes, he submitted that in terms of Clause 17.2.3, a Permanent Dispute Resolution Body, having equal representation from each of the parties is to be constituted. The disputes or differences arising under the agreement shall be referred for resolution to this body which shall communicate its decision within thirty days and thereafter the matter is to be considered in terms of Clause 17.2.4 which provides that in case of non-settlement of dispute by the Permanent Dispute Resolution Body, such dispute or differences shall be referred for decision to a body constituting of MD, DVVNL and Head, Distribution Franchisee (by whatever name called) which shall communicate its decision within a period of fifteen days. Primarily, there are three disputes; (1) Regulatory Surcharge, (2) Electricity Duty, and (3) Tariff Indexation Ratio.

5. Vide letter dated October 21, 2020, the applicant requested for constitution of Permanent Dispute Resolution Body for resolution of the dispute, detailed as that applicant is making payment of Regulatory Surcharge to DVVNL as per TIRn mechanism, but DVVNL is asking for full payment of regulatory surcharge recovered by the applicant. However, no response was received. On October 28, 2020 a committee constituted by MD considered the issues. However, no resolution could be passed. All the three issues were discussed in the aforesaid meeting. Hence, to state that the applicant has not exhausted the remedies available in the agreement for resolution of dispute before invoking the jurisdiction of the Court is not made out.

6. To put the records straight, Mr. Mathur, learned senior counsel, appearing for the applicant, submitted that an application was filed under Section 9 of the Act for interim relief before the Commercial Court, Lucknow. Status-quo was granted on March 16, 2021.

7. The respondent challenged the aforesaid order dated March 16, 2021 passed by Commercial Court, Lucknow by filing FAFO No. 335 of 2021 at Allahabad, which is still pending. The issue of jurisdiction is also under consideration. In terms of the interim order dated July 13, 2021 passed in the aforesaid appeal, again the efforts were made for settlement of the dispute. However, no positive result could be there.

8. Meanwhile, on May 31, 2021, the applicant issued notice seeking appointment of an Arbitrator to which reply was received refusing to appoint Arbitrator raising preliminary objection that the applicant had not exhaus