PRATEEK JALAN, J. (ORAL)

1. By way of this petition under Section 11 of the Arbitration and Conciliation Act, 1996 [“the Act”], the petitioner seeks appointment of an arbitrator to adjudicate disputes between the parties in terms of arbitration clauses contained in tax invoices issued by the petitioner to the respondent.

2. The petitioner is a supplier of HRPO sheets/coil, C.R. Sheets, and other materials. It supplied goods to the respondent during the period from 2018 to 2020, for which it claims to have raised 20 invoices. The goods were admittedly dispatched under Goods Received Documents [“GR Document”], and accompanied by e-way bills and invoices.

According to the petitioner, the invoices were not paid in full, as a result of which disputes arose between the parties.

3. The petitioner invoked arbitration by a legal notice dated

10.11.2021, claiming that a sum of Rs.31,36,876/- was due to it. The aforesaid communication was returned unserved. The arbitration clause was again invoked by e-mail dated 17.11.2021, the receipt of which is not disputed. The notice, however, failed to elicit a response, as a result of which the petitioner has filed this petition under Section 11 of the Act for appointment of an arbitrator.

4. I have heard Mr. Sanjay Jain, learned counsel for the petitioner, and Mr. Deepak Thukral, learned counsel for the respondent.

5. It appears that judgment in this petition was reserved by a coordinate bench on 06.03.2023, but the petition was taken up for hearing again, as the arbitration clause was contained in unstamped documents. It has since been released by the said Bench and listed before this Court. At the very outset, it may be noted that the question of stamping of the agreement is admittedly not germane for consideration in these proceedings, in view of the judgment of a seven judge Bench of the Supreme Court in In Re: Interplay Between the Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 18991. Mr. Thukral, therefore, does not press any objection with regard thereto.

6. The only question upon which learned counsel have joined issue is as to whether the arbitration clause, contained in the tax invoices issued by the petitioner to the respondent, can constitute a binding agreement for reference to arbitration, as required by Section 7 of the Act.

7. Section 7 of the Act reads as follows:

“7. Arbitration agreement.—(1) In this Part, “arbitration agreement”

means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in

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respect of a defined legal relationship, whether contractual or not.

(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3) An arbitration agreement shall be in writing.

(4) An arbitration agreement is in writing if it is contained in— (a) a document signed by the parties;

(b) an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or

(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.”

8. The facts of the case relevant to adjudication of this issue are undisputed. Goods were supplied by the petitioner to the respondent.

Documents, including tax invoices, e-way bills, and GR Documents, accompanied the goods. The signature of the respondent’s representative does not appear on the invoices, but only on the GR Documents, which were then returned to the petitioner. Although t