ORDER

2. The brief facts are as follow.

2.1. The Deputy Commissioner, Ballari vide his letter No.BATF:05:2010-11 dated 31.08.2010 had called upon various mining companies to undertake the construction of about kilometres road from Sandur town to Sri Kumaraswamy temple for convenience and benefit of the public at large.

2.2. The said call was accepted by the Petitioner as a part of Corporate Social Responsibility (CSR). In furtherance thereof, the Petitioner received contributions from other participating mining lessees and other companies for the said road construction project. The Petitioner on behalf of all participating mining lessees and contributing companies awarded the contract of the construction of the said road to the Respondent herein.

2.3. One other contributor to the project namely JSW Steel Limited had through its civil project department discussed with the respondent contractor about the scope of work, bill of quantities as also drafted the contract which came to be agreed to and executed between the Petitioner and the Respondent.

2.4. In terms thereof, the work was to be commenced by the Respondent and completed as per the terms and specifications of the agreement.

2.5. There were certain disputes which arose on account of non-carrying of work properly, non- obtaining of permission from Karnataka State Pollution Control Board (KSPCB), pollution caused during to the implementation of the work, notices being issued by the KSPCB, etc., 2.6. The Petitioner had filed an application under Section 9 of the Arbitration and Conciliation Act, for interim relief before the Principal District and Sessions Judge, Ballary, in those proceedings the Respondent had taken up a stand that a proceeding under Section 9 of the Arbitration & Conciliation Act, 1996 was not maintainable, since Arbitration is to be held under the aegis of the Indian Council of Arbitration (ICA) and on this ground, the Respondent had contended that the Principal District and Sessions Judge, Ballary did not have jurisdiction.

2.7. On account of the said disputes, the Petitioner invoked the Arbitration clause under the work order dated 20.12.2010. The said Arbitration clause is hereunder reproduced for easy reference.

“Arbitration & applicable law: Any dispute arising shall be referred to and finally resolved by Arbitration under the Rules of Arbitration of Indian Council of Arbitration (the “ICA Rules”) as amended and in force, from time to time. This contract shall be exclusively governed by Indian Law.”

2.8. Since the arbitration clause provided for Arbitration under the aegis of the ICA. A request for appointment of Arbitrator was filed before the ICA on 01.07.2014 in terms of the Rules and regulations applicable thereto and on a demand being made by the ICA, the Petitioner had also deposited the registration fee of Rs.22,472/- along with stipulated fee falling to the share of the Petitioner being Rs.13,99,378/-.

2.9. The Petitioner from the list of arbitrators published by ICA had chosen the name of Mr. Justice R.V.Ravindran, Former Judge of Hon’ble Supreme Court of India, as an arbitrator, however, the ICA requested the Petitioner to nominate another arbitrator due to some inconvenience. The Petitioner nominated Hon’ble Mr. Justice Vaidheeshwaran. (Retd.) High Court of Karnataka.

2.10. On receipt of the said request by the ICA the ICA communicated the same to the Respondent towards which the Respondent got issued a reply through his legal counsel on 19.09.2013 denying the invocation of the clause by the Petitioner and categorically stating in the said letter that the Respondent had only accepted Arbitration in terms of the A&C Act and not in terms of the rules and regulations of the ICA. The said clause incorporating Arbitration under the aegis of ICA was unilaterally inserted by the Petitioner and therefore Respondent was not acceptable to it.

2.11. The Respondent had also taken up a contention that