The court upheld the necessity to appoint an arbitrator per the arbitration agreement amidst disputes, confirming that claims related to the presented agreements are subject to arbitration despite objections raised.

ORDER

This petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (in short “the Act”) seeking for appointment of an Arbitrator by this Court.

2. There seems to be a dispute between the parties arising out of the following contracts:-

a) Concession Agreement dated 18.01.2013 entered into between the petitioner and the respondents.

b) Substitution Agreement dated 26.09.2013 entered into between the petitioner and the respondents 1 and 2.

3. The second respondent is a Special Purpose Vehicle (SPV) formed by the third respondent. The respondents 2 and 3 were awarded a contract by the first respondent for solid waste management under the Concession Agreement dated 18.01.2013. The petitioner has lent substantial sums of money to the respondents 2 and 3 for the project covered under the Concession Agreement dated 18.01.2013. In furtherance of the Concession Agreement, the petitioner, the respondents 1 and 2 have entered into Substitution Agreement dated 26.09.2013. According to the petitioner, as per the Substitution Agreement dated 26.09.2013, the respondents 1 and 2 have irrevocably agreed that upon termination of the concessionaire, the petitioner shall have the right to seek substitution of the concessionaire by a selectee for the residual concession period under the Concession Agreement in accordance with the terms of the Substitution Agreement. The petitioner claims that they came to know that the first respondent had terminated the contract awarded to the respondents 2 and 3 from the second respondent, who had informed the petitioner that they had received a termination notice dated 23.11.2018 from the first respondent and that the second respondent through their letter dated 27.11.2018 had also replied to the same.

4. The petitioner claims that thereafter they were following up with the respondents 1 and 2 to know the current status of the solid waste management project and the payments recoverable under the Substitution Agreement dated 26.09.2013 and the Concession Agreement dated 18.01.2013. According to the petitioner, there was no response received from the first respondent. The petitioner also claims that since March, 2020, on account of Covid-19 pandemic and ensuing lockdown, the petitioner could not follow up with the first respondent on the said termination of the contract of the respondents 2 and 3 by the first respondent and the payments thereof. According to the petitioner, upon easing of the lockdown, sometime after February, 2022, the petitioner vide a letter dated 21.05.2022, had once again reiterated its contentions and made a demand for Rs.80,33,21,773.88/- due as on 21.05.2022 in terms of the aforesaid Concession and Substitution Agreements.

5. The petitioner claims that the first respondent has neglected the demand of the petitioner and did not reply to the letter of the petitioner dated 21.05.2022 claiming that a sum of Rs.80,33,21,773.88/- is due and payable to the petitioner in respect of the loan facilities availed by the respondents 2 and 3. The petitioner claims that not only the first respondent has unilaterally terminated the Concession Agreement executed by them in favour of the respondents 2 and 3, but, has also failed to comply with the terms of the said Concession and Substitution Agreements dated 18.01.2013 and 26.09.2013, thereby depriving the petitioner to exercise its right of substitution. According to the petitioner, the first respondent though has terminated the Concession Agreement on 20.02.2019, till date, they have failed to make the termination payment to the petitioner as per the t