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2019 (1) TMI 1810 - HC - Indian LawsAppointment of an arbitrator in view of the disputes and differences arisen between the parties - petitioner was required to supply one set of refractories for coke oven battery No. 6 consisting of silica bricks, fire clay bricks and mortars at a price of US$ 7,933,094/- only for the respondent and/or its nominated consignee - issue in the present case is that Despite the acceptance of the said materials, the respondent has failed, refused and neglected to pay a sum of ₹ 2,96,09,916/- to the petitioner out of the total sum due and payable to the petitioner from the respondent in terms of the purchase order dated 12th March, 2015. Whether the petitioner is entitled to appointment of an arbitrator in relation to the disputes and differences that have arisen between the parties in relation to the purchase order dated 12th March, 2015? HELD THAT:- In the instant case, there is no dispute with regard to the existence of an arbitration agreement - Even if an arbitrator is appointed in this proceeding, it would still be open for the respondent to contend before the arbitrator that by filing the written statement in the suit, the petitioner has forfeited its right to refer the dispute to arbitration - The purchase order contains an arbitration clause. The existence of the purchase order is not in dispute. What could be the reason or plausible defence for not releasing the price of the goods sold and delivered under the purchase order is not a relevant consideration at this stage to decide an application for appointment of an arbitrator. The plaintiff in their wisdom may frame a suit with multiple parties and multiple causes of action but such of the parties in the suit whose agreements with the plaintiffs contain arbitration clauses and are desirous of seeking independent reference of their dispute to arbitration cannot be prevented from seeking such reference, particularly in view of the language of Section 11(6A) of the Act. The considerations for Section 8 and Section 11 of the Act are entirely different. The reference to Section 8 of the Act and the decisions on the said Section have been referred to only for the limited purpose of understanding whether the considerations for referring the dispute of the parties to arbitration is the same as that of a proceeding under section 11 of the Act. The considerations are completely different - The objection to the appointment of an arbitrator in the present case, amongst others, appears to be the filing of written statement by the respondent in the suit. This is, in view of the aforesaid discussion, not a relevant consideration for appointment of an arbitrator under Section 11 of the Act. All the questions which could have been decided by the Court previously in an application under Section 11 of the Arbitration and Conciliation Act, 1996 have been taken away and the Court is now denuded of its jurisdiction to decide such questions which otherwise were available to the Court under the unamended Act - Even under the unamended provisions, the consistent view of the Court is to have minimum supervisory jurisdiction over the arbitral tribunal. This has now received a statutory recognition in various amended provisions carried out in 1996 Act, one of which is Section 11(6A). Application allowed.
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