O R D E R

This Arbitration Original Petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter called as 'the Act') to appoint an Arbitrator in respect of the disputes that have arisen between the petitioner and the respondent in the Memorandum of Understanding dated

10.07.2012.

2. Heard Mr.Srinivas, learned Senior Counsel, for Ms.Mythili Srinivas, learned counsel for the petitioner and Mr.S.Sivaraman, learned Counsel appearing on behalf of the respondent.

3.The learned counsel for the petitioner would submit that the parties have entered upon a Memorandum of Understanding in which Clause 12 had provided for the disputes to be arbitrated. Even though, the arbitrator was originally appointed and an Award has been passed, the same has been set aside by this Court at the instance of the respondent herein, wherein liberty had been granted to the parties concerned to institute a denova Arbitral proceedings and in such case, the benefit of Section 43(4) of the Arbitration and Conciliation Act, 1996 was also extended. Hence, the present application had been taken out by the petitioner for appointing an Arbitrator to decide the dispute.

4. The same had been objected to vehemently by the learned counsel for the respondent, firstly by contending that there is nothing to arbitrate, as already an Award has been passed which had been set aside by this Court. When that being so, there can be no question of re-initiating a fresh arbitral proceedings. He would further contend that the setting aside of the Award was made on the ground that a fraud that had been committed by the petitioner herein and respondent in the earlier arbitrartion proceedings and in fact, a cost of Rs.2,00,000/- had been imposed by this Court while setting aside the Award. Dehors his submission, he had also vehemently contended that no Section 21 notice had been issued by the petitioner for instituting the present petition under Section 11. Therefore, the same also would not be maintainable.

5. I have considered the submissions made by the learned counsels appearing on either side and perused the materials available on record.

6. The earlier Award had been set aside by this Court by holding that the respondent do have the right to unilaterally constitute the Arbitral Tribunal and therefore, the constitution and composition of the Arbitral Tribunal itself is not in accordance with the arbitrartion agreement. It has also recorded the fact that the record did not disclose the petitioner therein, the respondent herein did not have a reasonable opportunity. No findings have been recorded by this Court that the initiation of the arbitrartion proceedings (i.e., Section 21 Notice) is itself bad. Eventhough, the learned counsel for the respondent had relied upon various interim orders passed by this Court with regard to the conduct of the petitioner or the Arbitrator, no final decision was made by this Court with regard to a conduct of fraud that had been played by the petitioner. Therefore, this Court cannot subscribe to the argument made by the learned counsel for the respondent that a finiding of fraud had been conclusively made against the petitioner. Further, this Court in the earlier order had permitted the parties to institute a denova arbitral proceedings. In my view, it would take place from the stage of appointment of Arbitrator since, this Court had only found that the constitution of the Arbitral Tribunal by the petitioner at that relevant point of time was only bad. Had a finding been rendered that no invocation of the arbitral proceedings or there was an invalid Section 21 notice, this Court could agree with the learned counsel for the respondent that the present arbitrartion proceedings will have to also be initiated only after issuance of the fresh Section 21 notice. Once Section 21 notice has been issued, it is deemed that the parties invoking Section 21 have decided to invoke the arbitration clause. Such a decision to inv