PER COURT :

1. This application is filed under Section 11 of the Arbitration and Conciliation Act (for short ‘the Act’) for appointment of Arbitrator on behalf of Respondents since it is the case of the applicant that inspite of invocation of arbitration clause and appointment of Arbitrator by applicant, Respondent has failed to appoint co-arbitrator within stipulated time.

2. There is no dispute about the fact that there was sub-contract between Applicant and Respondents dated 9.10.2020. Clause No. 32 provides for settlement of dispute amicably and, on failure thereto to settle the dispute through Arbitrator. Parties do not dispute exchange of correspondence between them.

3. Learned counsel for the applicant submits that notices dated 28.03.2023 and 25.09.2023 are sufficient for recording due compliance of Section 21 of the Act. It is his submission that in the first notice dated 28.03.2023, it was clearly indicated that in case of failure on the part of the Respondent to appoint co-arbitrator in 30 days, further action under the provisions of the Act would be initiated. He also referred to letter dated 25.09.2023 by applicant to the Respondent giving final 15 days notice for appointment of Arbitrator. All this, according to him, is sufficient compliance for invocation of Section 11 of the Act.

4. Learned counsel for Respondent though did not dispute receipt of communication as referred by learned counsel for the applicant, however, according to him, letter dated 28.03.2023 is not unequivocal invocation of arbitration clause. He drew attention of

the Court to Paragraph Nos. 16 to 18 of the said letter which according to him, indicate that in case the date for amicable settlement is given by the Respondent, the said notice becomes infructuous. It is his submission that thus, consequent notice dated 25.09.2023 does not contemplate compliance of Section 21 of the Act. It is his submission that in this letter it is itself candidly stated by the applicant that there were settlement talks between the parties and as such first letter dated 28.03.2023 being made obsolete by the conduct of the parties. There cannot be a presumption of compliance of Section 21 of the Act which is mandatory for the purpose of invocation of Section 11 of the Act. In support of his submissions, he placed reliance on judgment of this Court in case of D. P. Construction vs. Vishvaraj Environment Pvt. Ltd., MANU/MH/2206/2022.

5. Admittedly, there is a contract between Applicant and Respondent No. 1 dated 09.11.2020. It contains arbitration clause. Said clause No. 32 is reproduced as under :-

Dispute Resolution: If any dispute, controversy arises between the parties as to the interpretation of this Agreement or any matter or thing in connection with

this Agreement, the parties shall exert to solve the - dispute or controversy or difference amicably. In case such dispute or controversy cannot be resolved by the parties by discussion in good faith; attempting to reach an amicable solution, the same shall be finally settled by arbitration in accordance with Arbitration & Conciliation Act 1996 having each party appointing one arbitrator & both the arbitrators appointing a Presiding Arbitrator. The costs towards arbitration shall be shared equally. The venue shall be Aurangabad. The arbitral award shall be final and conclusive and binding on both the sides.

6. This clause clearly indicates that the parties have to exert firstly to settle the dispute amicably and if the dispute is not settled, then to refer the dispute for decision to arbitration tribunal. Parties have also agreed for appointment of one Arbitrator each and these two Arbitrators were to appoint umpire/ third Arbitrator.

7. The correspondence filed along with application including letter dated 04.03.2023 issued by Respondent to Applicant alleging losses caused by the Applicant more than sufficiently indicates that there exist a dispute between the parties in respect of

the terms of contract. At this stage, it w