The failure to provide proof of service for a notice under S. 21 of the Arbitration and Conciliation Act does not divest the Court of its power under S. 11 to appoint an arbitrator when a valid arbitration agreement exists between the parties.

O R D E R

1. The present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”), seeking appointment of a sole Arbitrator to adjudicate the disputes between the parties, which arise out of the Loan Agreement dated 03rd December, 2021.

2. Notice had been issued to the respondent on the last date of hearing.

3. Learned counsel for the petitioner has filed an affidavit of service, in order to show that service upon the respondent, has been effected through WhatsApp as well as E-mail. He confirms the fact that service through said modes has been done on the valid E-mail and Mobile Number, which had been submitted by the respondent himself in the loan application.

4. Accordingly, the respondent stands served. However, none appears for the respondent when the matter is called out.

5. Thus, this Court proceeds to deal with the present petition.

6. As per the facts on record, the respondent had availed a personal loan of Rs. 9,57,423/- (Rupees Nine Lacs Fifty Seven Thousand Four Hundred and Twenty Three) under the Loan Agreement, which was required to be repaid in 60 equated monthly installments. However, the respondent made irregular payments, which resulted in default of his repayment obligations under the Loan Agreement.

7. In view thereof, the petitioner recalled the loan issued to the respondent and invoked the arbitration clause of the Loan Agreement, i.e., Clause 14, by way of a letter dated 07th February, 2024, sent under Section 21 of the Arbitration Act.

8. Learned counsel for the petitioner has drawn the attention of this Court to the said Clause 14 of the Loan Agreement, which contains the arbitration clause, in the following manner:

“

14. Arbitration:

(i) All disputes, differences and/or claim or questions arising out of these presents or in any way touching or concerning the same or as to constructions, meaning or effect thereof or as to the right, obligations and liabilities of the parties hereunder shall be referred to and settled by arbitration, to be held in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any statutory amendments thereof, of a sole arbitrator to be nominated by the Lender, and in the event of death, unwillingness, refusal, neglect, inability or incapability of a person so appointed to act as an arbitrator, the Lender may appoint a new arbitrator to be a sole arbitrator. The arbitrator shall not be required to give any reasons for the award and the award of the arbitrator shall be final and binding on all parties concerned. The arbitration proceedings shall be held Mumbai/Delhi.

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(iv)The parties agree that the aforesaid proceedings shall be carried out by a sole arbitrator appointed under the Rules. The juridical seat of arbitration shall be Delhi/Mumbai, India and the aforesaid proceedings shall be subject to the exclusive jurisdiction of the competent courts in Delhi/Mumbai, India. The language of arbitration shall be English. The law governing the arbitration proceedings shall be Indian law. The decision of the arbitrator shall be final and binding on the parties

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9. Perusal of the aforesaid shows that there is a valid arbitration clause between the parties, as per which, the venue as well as the juridical seat of arbitration shall be either Delhi or Mumbai. Thus, the present petition has been filed before this Court.

10. At this stage, this Court notes the letter dated 07th February, 2024 of the petitioner under Section 21 of the Arbitration Act, along with which, the petitioner has also placed on record the speed post receipts, in order to show that the said letter had been dispatched. Though proof of service of the said letter has not been placed