A referral Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 primarily examines the existence of a valid arbitration agreement; procedural lapses such as the absence of a Section 21 notice do not bar the appointment of an arbitrator when the agreement is undisputed and the dispute is arbitrable.

ORDER

The petitioner is an NGO registered under the Societies Registration Act. The respondent No. 2 is a State Nodal Office, Mid-day Meals scheme, Assam. The scheme is floated by the Government for supply of mid-day meals to the children of various primary and upper primary classes studying in Government and Government-aided schools. The respondent No. 2 is represented by the Mission Director, who is a Government Official of the State of Assam under the respondent No. 1, namely the Department of Elementary Education, Government of Assam.

2. In response to the Expression of Interest (EoI) issued by the respondent No. 2 inviting applications from various NGOs for supplying freshly cooked mid-day meals to Government and Government-aided schools in Assam, the petitioner being eligible and having experience in the said category of work applied under the Scheme. By communication dated 01.09.2018, the petitioner was granted approval for establishing a Central Kitchen and was allotted work in the districts of Bongaigaon, Dhubri and Morigaon, as per norms, to provide hygienic, healthy and nutritious hot-cooked food to children under the Mid-Day Meal Scheme in accordance with the existing guidelines of the Government of India. Thereafter, a contract agreement was executed between the petitioner and the respondent No. 2 by way of an MoU/Agreement dated 26.10.2018 for the said purpose. Subsequent communications were exchanged between the respondents and the petitioner regarding the supply requirements, including the number of schools, number of children, beneficiaries, and the scheduled date of commencement of supply from 01.01.2019 to 01.04.2019. There was a request made by the petitioner for extension of time for commencement of the hot-cooked Mid-Day Meal supply. Meanwhile, in pursuance of the allotted work, the petitioner incurred an expenditure of Rs. 3,87,78,435/- towards purchase of land, construction of buildings, rental charges, and investment in fixed assets. The petitioner further claims to have availed a cash credit facility from a bank, on which an amount of Rs. 36,63,063/- has been paid as interest up to 31.03.2023.

3. While the petitioner's request for extension was not replied to, by communication dated 10.11.2019, the respondents instructed the petitioner to stop further supply of hot cooked mid-day meals until further orders. Although no reasons were stated to have been cited in the said communication, petitioner however continued to maintain the infrastructure/kitchens which were also inspected by the officials of the SSA from the district of Bongaigaon and a proper inspection report to that effect has also been issued.

4. It is the case of the petitioner that under Clause 54 of the MoU/Agreement dated 26.10.2018, a notice period of 30 days was required before terminating the contract. Accordingly, the petitioner submitted a representation dated 28.12.2020 before the authorities, requesting reconsideration of the arbitrary termination of the contract. However, no response was received from the respondents. The petitioner being aggrieved approached this Court by filing W.P(C) No. 1620/2022 which came to be dismissed by the order dated 26.06.2023. However, petitioner was granted liberty to invoke arbitration as per Clause 56 of the MoU/Agreement dated 26.10.2018.

5. According to the peti