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2008 (12) TMI 793 - SC - Companies LawAppointment of a sole Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 - interpretation of Article VI in the said agreement which according to the applicant contains the Arbitration Clause - existence of valid arbitration agreement between the parties or not - existence of live claim between the parties or not. Whether there exists a valid arbitration agreement between the parties? - HELD THAT:- In the present case the parties did not agree upon any particular procedure for the appointment of the arbitrator. Clause VI provides that disputes arising out of the agreement which could not be settled amicably shall be finally settled in accordance with the provisions of the Act. Whether the parties have agreed to resolve their disputes by arbitration or through conciliation? - HELD THAT:- What is required to be gathered is the intention of the parties from the surrounding circumstances including the conduct of the parties and the evidence such as exchange of correspondence between the parties. The respondent in none of its letters addressed to the applicant suggested that the dispute between the parties is required to be settled through conciliation and not by arbitration. In response to the applicant's letter invoking the arbitration clause the respondent merely objected to the names inter-alia contending the suggested arbitration would not be cost effective and the demand for arbitration itself was a premature one. Is there any material available on record suggesting that the parties intended to resolve their disputes through conciliation on failure to settle the disputes amicably among themselves? - HELD THAT:- The arbitration clause states that the disputes arising out of the agreement which cannot be settled amicably to be finally settled in accordance with the Arbitration and Conciliation Act, 1996. Therefore, the provisions of the said Act will govern the appointment of Arbitrator, the reference of disputes and the entire process and procedure of arbitration from the stage of appointment of arbitration till the award is made and executed/given effect to. The provisions of the said Act would meet the requirement of checklist of the matters enumerated in the treatise. Once the parties agree for resolution of dispute in accordance with the Arbitration and Conciliation Act, 1996 the said Act will take care of the entire processes and procedure. Be that as it may when the specific intention of the parties is clearly evident from the arbitration clause the same cannot be treated as vague on the ground that it does not satisfy the suggested checklist of all matters to be considered while drafting an arbitration agreement. Whether invocation of Article VI providing for arbitration is premature? - HELD THAT:- The exchange of letters between the parties undoubtedly discloses that attempts were made for an amicable settlement but without any result leaving no option but to invoke arbitration clause. Whether there is any live issue between the parties? - HELD THAT:- It is amply clear from the facts as pleaded and as well as from the exchange of correspondence between the parties that there has not been any satisfaction recorded by the parties with respect to their claims. There has been no mutual satisfaction arrived at between the parties as regards the dispute in hand. The claims are obviously not barred by any limitation. It is thus clear that there is a live issue subsisting between the parties requiring its resolution. Thus, a clear case is made out for appointment of an arbitrator to decide the disputes between the parties - application allowed.
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