JUDGEMENT

Prathiba M. Singh, J.

1. This hearing has been done through hybrid mode.

FACTS

2. This is a petition filed by the Petitioner under section 11 (6) of the Arbitration and Conciliation act, 1996, seeking appointment of an arbitrator with respect to the disputes arising between the parties regarding nine contracts as mentioned in paragraphs 3 and 4 of the Pleadings.

3. The Petitioner - KGPS Mechanical Pvt. Ltd. is a contractor for structural and mechanical jobs, registered under the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred as ‘MSME’).

4. The Respondent- CINDA Engineering and Construction Pvt. Ltd. is a technical consultant company which was awarded the Engineering, Procurement, Construction, Management contract for its Carbon Black Project (hereinafter referred as ‘Project’) at Dahej, Bharuch to the Respondent Company. The Respondent thereafter invited bids for multiple packages.

5. The Petitioner was awarded two contracts dated 27th February, 2020, regarding design, engineering, manufacture, construction, erection for values of more than Rs. 28 crores and Rs. 31 crores. Thereafter, the Petitioner company was awarded seven more contracts which were not completed by the previous vendors.

6. The case of the Petitioner is that the Respondent had payment dues with regards to the work completed by the Petitioner. There were a total of nine agreements which were executed between the parties in which a claim of more than Rs.10 crores has been raised by the Petitioner. Though, there are three member arbitral tribunals contemplated under the contracts, but when the Petitioner invoked the arbitration vide notice dated 13th December, 2023, the Respondent replied to the notice vide email dated 4th January 2024 and stated as under:-

“11.

It may be noted that there are nine separate agreements, each of which contains an independent arbitration clause and provides for ad-hoc arbitration through an Arbitral Tribunal comprising 3 Arbitrators.

Since the parties to the dispute are common and to avoid multiplicity of proceedings, our Client proposes that the dispute under all the Contracts be referred to a Sole Arbitrator (ad-hoc arbitration), to be appointed through mutual consent or by approaching the Hon'ble High Court of Delhi.”

7. As per the above, the Respondent stated that it is willing for a Sole Arbitrator to be appointed by this Court. The Petitioner then suggested the names of three arbitrators. However, since there was no response, the present petition has been filed.

8. On 14th March, 2024, it was submitted by the Respondent that out of nine agreements, only five agreements have an arbitration clause and in the remaining four agreements, there was no arbitration clause.

9. An objection was initially raised by ld. Counsel for the Respondent that the Petitioner has failed to disclose to the Court that it has already approached the Micro, Small and Medium Enterprises Facilitation Council (hereinafter ‘MSEFC') for conciliation/ reference and the same was not disclosed to this Court. Ld. Counsel for the Petitioner, at that stage, had submitted that the MSEFC references were made in respect of five agreements which had an arbitration clause but there had been no effective proceeding before the MSEFC. He had agreed that his client would be withdrawing the said references upon legal advice.

10. Today, an application (to be numbered) has been filed placing on record the documents to show that the reference to the MSEFC has been withdrawn. The Court has perused the application - a copy of which has been handed over to the Court. A perusal of the application reveals that letters have been written on 8th April, 2024 to the Office of MSME Commissionerate withdrawing the references. Accordingly, the MSEFC shall pass appropriate orders directing withdrawal.

11. Insofar as the main matter is concerned, the issue which was crystallised on the last date is as under:-

“5. Subject to the MSEFC reference be