1. The instant application under Section 11(6) of the Arbitration & Conciliation Act, 1996 has been filed seeking a direction for appointment of sole Arbitrator for resolution of dispute in view of arbitration clause as contained under Clause 16 of the Purchase Order dated 17.01.2017.

2. The brief facts of the case, as per the pleading made on behalf of the petitioner-applicant, reads as under:

The petitioner/applicant is a public limited company incorporated under the Companies Act. The respondent-Hindustan Copper Limited (HCL) floated tender to make blowing system of the converter economical, in which, the petitioner participated and declared successful. Pursuant thereto, the respondent issued Purchase Order dated 17.01.2017. In terms of Purchase Order, the petitioner-company completed supplies and submitted invoice amounting to Rs. 10,92,43,873.72 including GST. The respondent-HCL paid a sum of Rs. 5,20,27,121.86 during the period March, 2018 to June, 2018, however, balance bill amount was never paid by the respondent-HCL.

It is the case of the petitioner that the present application is necessitated in view of dispute which arose out of letter dated 13.11.2021 whereby and whereunder the respondent-HCL rejected the supplied materials against above referred purchase order and the petitioner has been advised for replacement of rejected materials as per Clause 21 and 22 of the General Terms and Conditions, to which, the petitioner replied vide letter dated 30.12.2021 requesting to withdraw letter dated 13.11.2021 and further not to take any coercive action against the petitioner company. But the respondent invoked the Bank Guarantee furnished by the petitioner at the time of award of work.

It is the further case of the petitioner/applicant that efforts to amicable settlement of dispute between the parties failed as such the petitioner invoked arbitration clause 16 of the Purchase Order but the respondent failed to act in terms of the notice invoking arbitration and as such the petitioner has approached this Court for appointment of independent arbitrator.

3. No objection has been raised on behalf of respondent in allowing this application. However, he seeks leave of this Court to take all the points before the sole arbitrator.

4. This Court has heard the learned counsel for the parties, perused the documents available on record, more particularly, Arbitration Clause 16, which reads as under:

“16.Arbitration: All questions, disputes or differences of any kind whatsoever arising out of or relating to the contract shall be referred by the parties to this contract for decision to a sole arbitrator who shall be the Chairman cum Managing Director of HCL or any officer of HCL nominated by the said Chairman cum Managing Director in that behalf, in the event of such an arbitrator to whom the matter is originally referred, is transferred or vacates his office by resignation or otherwise or refuse to act or is incapable of acting for any reason whatsoever, the Chairman cum Managing Director shall appoint another person to act as an Arbitrator in his place in accordance with the terms of this contract. Such person shall be entitled to proceed from the stage at which it was left by his predecessor.

A.There shall be no objection to any such appointment that the arbitrator appointed is an officer of the Company or that he had to deal with the matter to which this contract relates or that in the course of his duty as such officer he had expressed views on all or any of the matters in disputes or difference. No person other than Chairman cum Managing Director or his nominee can act as arbitrator. The venue of Arbitration shall be Ghatshila only.

B. The award of the Arbitrator shall be final and binding on the parties of this agreement.

C. Subject to the above, the provisions of Arbitration & Conciliation Act, 1996 and of all the rules there under and all statutory modifications thereof shall process in to Arbitration proceedings and shall be deemed to apply to and be incorporated in this contract.”

5. The petitioner/applicant, made request for appointment of arbitrator in a situation where the dispute has arisen but the admitted position is that no arbitrator has been appointed even after such request having been made, therefore, this Court is of the view that it is a fit case where the power conferred to this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 is required to be exercised for appointment of Arbitrator, considering Clause 16 of the contract.

6. Learned counsel for the parties have suggested the name of Hon’ble Mr. Justice R.K. Merathia (Retd.), High Court of Jharkhand to act as an Arbitrator.

7. Accordingly, this Arbitration Application is being disposed of by appointing Hon’ble Mr. Justice R.K. Merathia (Retd.), High Court of Jharkhand, residing at C/O Mr. Manish Merathia, Flat No.-303, 2nd Floor, Varun Apartment No. 9, Krishnappa Layout, Shivakrupa CKM Road, Nagashetty Halli, R.M.V., 2nd stage, Bengaluru-560094, as Arbitrator for resolution of dispute.

8. Needless to say that the parties will be at liberty to raise all the legal issues for its consideration by the learned Arbitrator, in accordance with law.

9. Learned Registrar General of this Court is directed to send a copy of the entire records of this case along with entire order sheet with this order to the learned Arbitrator forthwith.

10. The instant arbitration application is allowed and accordingly, disposed of.