C.S.DIAS

1. The arbitration request is filed under Section 11 of the Arbitration and Conciliation Act, 1996(in short, ‘Act’), seeking the appointment of a sole arbitrator to arbitrate upon the disputes that have arisen between the applicant and the respondent.

2. The applicant’s case, in brief, which is relevant for the determination of the arbitration request, is that, the applicant had entered into Annexure-A1 agreement with the respondent. However, on 16.11.2021, the respondent sent an e-mail seeking for the mutual termination of Annexure-A1. The petitioner opposed the proposal by sending Annexures-A7 and A8 e-mails. The respondent has, thereafter, by Annexure-A9 threatened to forfeit the security deposit, which was opposed by the petitioner through Annexures-A10 and A11. Nonetheless, the respondent refunded the security deposit. The petitioner has moved the District Court, Ernakulam, against the respondent, under Section 9 of the Act, by filing C.M.A.(Arb).No.240/2022. The District Court has passed Annexure-A13 order against the respondent. The petitioner has now issued Annexure-A14 notice, invoking the arbitration clause in Annexure-1, and suggesting the names of the Arbitrators. But, the respondent has failed to respond to Annexure-A14 notice. Hence, the Arbitration Request.

3. Heard; Sri. Santhosh Mathew, the learned counsel for the petitioner and Sri. Krishnan Unni T., the learned Senior Counsel appearing for the respondent.

4. Sri. Santhosh Mathew reiterated the contention in the Arbitration Request (A.R.) and sought for the appointment of a sole Arbitrator as suggested in the A.R. On the contrary, Sri. Krishnan Unni T, vehemently opposed the A.R. and argued that the A.R. is not maintainable, since there is no arbitrable disputes between the parties. However, if this Court decides to appoint an Arbitrator, then the question of arbitrability may be directed to be decided by the Arbitrator as a preliminary issue.

5. Admittedly, the parties had entered into Annexure-A1. The agreement explicitly provides that in the case of any dispute between parties , they shall take recourse to arbitration as provided under the. In the light of the correspondence exchanged between the parties, obviously, a dispute has arisen between them. The petitioner has invoked the arbitration clause and issued Annexure-A14, which has not been responded to by the respondent. Therefore, the petitioner’s right to get an Arbitrator appointed has crystalised.

6. With the exposition of the law in Chloro Controls India Private Limited v. Severn Trent Water Purification Inc. and Others[(2013) 1 SCC 641] [LQ/SC/2012/874] , Vidya Drolia and Others v. Durga Trading Corporation [(2021) 2 SCC 1] [LQ/SC/2020/837 ;] ">[(2021) 2 SCC 1] [LQ/SC/2020/837 ;] [LQ/SC/2020/837 ;] and the emergence of the kompetenz- kompetenz principle conferring power on the arbitrator to decide on his own jurisdiction, the objection of the respondent regarding the arbitrability of dispute can very well be raised before the learned Arbitrator.

7. In the above factual and legal matrix, I am inclined to allow the A.R. in the following manner:

(i) Mr Justice Thottathil B. Radhakrishnan, is appointed as the sole Arbitrator, to arbitrate upon the disputes that have arisen between the petitioner and the respondent arising out of Annexure-A1.

(ii) The learned Arbitrator is at liberty to rule on his own jurisdiction, if the parties raise such a dispute.

(iii) The Registry is directed to communicate a copy of this order to the learned Arbitrator within a period of ten days from today and to obtain a Statement of Disclosure from the learned Arbitrator as provided under Section 11(8) read with Section12(1) of the.

(iv) Once the Disclosure Statement is obtained from the learned Arbitrator, the Registry shall issue the certified copy of this order to the learned Arbitrator, with a copy of the said statement appended to it, retaining the original of the same by this Court.

(v) The fees of the learned Arbitrator shall be governed by the Fourth Schedule of the.

(vi) The learned Arbitrator shall decide the manner in which the fees and expenses of the arbitration proceeding has to be paid by the parties.

(vii) The parties will appear before the learned Arbitrator on such date and place as decided by the learned Arbitrator.

(viii) As the seat of Arbitration is at Ernakulam, Kerala as per Annexure-A1, the seat and venue will be at Ernakulam, as per the convenience of the Arbitrator.

(ix) All contentions of the parties are left open to be raised before the learned Arbitrator.