ORAL

JASMEET SINGH, J

1. This is a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (“the Act”) seeking appointment of an Arbitrator for adjudication of disputes between the parties.

2. In the present case, the petitioner Nos.1 and 2 agreed to partially fund the project of respondent by financial aid to the tune of Rs. 90 lakhs and consequently, the parties entered into a Tripartite Agreement dated 23.11.2010. Relevant clauses of the said Agreement read as under:-

“11. UTILIZATION OF TECHNOLOGY

(e) AHTPL shall assign the technology proposed to be developed under this project with right to license the intellectual property owned by them and transfer the know-how document to NRDC within 60 days from the occurrence of any of the following:

(i) If AHTPL refuses to exercise its rights, within one year of completion of the “Project”, its option to commercialise technology.

(ii) If AHTPL fails to commercialise technology within four years of completion of the project.

(iii) If AHTPL fails to execute agreement referred to in clause 11(a) above.”

3. The arbitration clause is clause 15 of the said Agreement which reads as under:-

“15. ARBITRATION AND JURISDICTION

a) If any dispute or difference arises between the parties hereto as to the construction, interpretation, effect and implication of any provision of this Agreement including the rights or liabilities or any claim or demand of any Party (or its extent) against other party or its sub-contractor or in regard to any matter under these presents but excluding any matters, decisions or determination of which is expressly provided for in this Agreement such disputes or differences shall be referred to the sole arbitration of the Secretary of Department of Legal Affairs, Govt. of India or his nominee. A reference to the arbitration under this clause shall be deemed to be submission within the meaning of the Arbitration and

Conciliation Act, 1996 and any modification or re-enactment thereof and the rules framed thereunder for the time being in force.

b) i) The venue of the Arbitration shall be at Delhi.

ii) Each Party shall bear and pay its own cost of the arbitration proceedings unless the arbitrator otherwise decides in the award.

iii) The provision of this clause shall not be frustrated, abrogated or become in-operative, notwithstanding this Agreement expires or ceases to exist or is terminated or revoked or declared unlawful.”

4. The project was completed in January, 2015 and the petitioner No.2 vide letter 19.05.2015 formally informed the respondent regarding completion of the project.

5. According to the petitioner, the first royalty payment became entitled to be paid on 31.03.2016 and the second instalment on 31.03.2017. The petitioner demanded the said royalties but since the respondent failed to pay the same, the arbitration clause was initiated.

6. Vide Award dated 03.09.2019, learned Arbitrator held that the claims of the petitioners were premature as there was no material to show that the respondent had started commercial sale of the product in question.

7. The said Award was challenged by the petitioner in section 34 petition and the same was dismissed on 11.07.2022. Thereafter, the said judgment dismissing section 34 petition was also challenged in

section 37 petition and the same was dismissed as withdrawn vide order dated 08.07.2024.

8. Subsequently, the petitioner invoked arbitration for claiming damages for non-compliance of clause 11(e) of the Agreement on the ground that the respondent failed to commercialize the technology [11(e)(ii) quoted above] on 05.04.2024 and thereafter, the present petition.

9. Mr. Ranjan, learned counsel for the respondent states that in the present case, the letter of 05.04.2024 is not a notice invoking arbitration and is only a demand letter.

10. Additionally, in terms of the arbitration clause, the petitioner already has named the arbitrator and the matter should have been referred to the same arbitrator as per the arbitration cla