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Judgment
Sandeep Sharma, J.
By way of instant petition filed under Section 11 of the Arbitration and Conciliation Act, 1996, a prayer has been made on behalf of the petitioner,
for appointment of an Arbitrator in terms of Clause 46 of the agreement, dated 16.02.2016 (Annexure PÂ2).
Briefly stated facts, as emerge from the record are that respondent No.1 published tender notice for outsourcing the Courier Services, wherein two
parties including the petitioner participated in the tender process. Petitioner being highest/successful bidder came to be allotted work of outsourcing of
the Courier Services on 16.2.2016. Petitioner made highest offer for an amount of Rs. 79,00,000/Â ( Rupees seventy nine lacs) per annum including
services tax. RespondentÂcorporation accepted the aforesaid offer and executed an agreement on 16.2.2016 (Annexure PÂ2), whereby both the
parties agreed that the petitioner Âcompany shall have the right to carry couriers in HRTC ordinary buses. As per the agreed terms inter se parties,
petitioner was under obligation to pay consideration amount from the date of signing the agreement and it had to deposit annual amount in four equal
quarterly installments in advance in the name of respondent No.2.
Though, in terms of the agreement (Annexure PÂ2), petitioner commenced its business of courier, but it appears that some dispute arose inter se
parties and as such, petitioner by way of communications, dated 6.12.2016, 16.4.2017,10.5.2017 and 12.6.2017 (Annexures PÂ3 to PÂ6), apprised the
Managing Director, HRTC, Shimla with regard to the dispute, enabling him to appoint an Arbitrator in terms of Clause 46 of the Agreement. But since
the respondent failed to take appropriate steps for appointment of an Arbitrator, petitioner was compelled to approach this Court by way of instant
proceedings, praying therein to appoint an impartial/ neutral Arbitrator for the adjudication of the dispute inter se parties.
Mr. Devender K. Sharma, learned counsel representing the petitioner, while inviting attention of this Court to clause 46 of the Agreement, argued
that in the event of dispute or differences, if any, on the terms and conditions of the agreement, petitioner is/ was only required to inform Managing
Director, HRTC, who was under obligation to appoint an Arbitrator to resolve the issue/ dispute arose inter se parties. He further invited attention of
this Court to Annexure PÂ3 to PÂ6, to demonstrate that since 6.12.2016 petitioner had been repeatedly requesting the Managing Director, HRTC
with regard to the dispute inter se parties, but since he failed to take appropriate action, petitioner was compelled to approach this Court instant
proceedings.
Ms. Subh Mahajan, learned counsel representing the respondents, while refuting the aforesaid submissions having been made by learned counsel for
the petitioner, contends that at no point of time prayer, if any, was made by the petitioner for appointment of an Arbitrator and as such, there is/was no
occasion for the Managing Director, HRTC to appoint an Arbitrator. She further states that bare perusal of the Annexures PÂ3 to PÂ6, nowhere
suggest that specific prayer, if any, was ever made by the petitioner to the Managing Director, HRTC, enabling him to appoint an Arbitrator under
Clause 46 of the agreement and as such, present application deserves to be dismissed being devoid of any merit. She further states that since the
petitioner failed to abide by the terms and conditions contained in the agreement and huge loss was being suffered by the respondentÂcorporation,
agreement, dated 16.2.2016 was cancelled on 25.10.2017, but even at that point of time no steps, whatsoever were ever taken by the petitioner to
approach this Court, seeking therein appointment of an Arbitrator and as such, present petition deserve to be dismissed on the ground of limitation also.
Ms. Subh Mahajan, leaned counsel for the respondents further contends that since the petitioner violated the terms and conditions of the agreement,
respondentÂcorporation rightly forfeited the security of the petitioner and at present there is no claim, if any, of the petitioner against the respondentÂ‐
corporation and as such, there is no dispute which is required to be referred to the Arbitrator.
I have heard learned counsel representing the parties and carefully gone through the record.
At this stage,it would be profitable to reproduce Clause 46 of the agreement herein below:Â
decide (or leave them to the decision of the Arbitral Tribunal) are:
(a) Whether the claim is a dead (longÂbarred) claim or a live claim.
(b) Whether the parties have concluded the contract/ transaction by recording satisfaction of their mutual rights and obligation or by receiving the final
payment without objection.
22.3. The issues (third category) which the Chief Justice/his designate should leave exclusively to the Arbitral Tribunal are:
(i) Whether a claim made falls within 43 the arbitration clause (as for example, a matter which is reserved for final decision of a departmental
authority and excepted or excluded from arbitration).
(ii) Merits or any claim involved in the arbitration.
The scope of the power under Section 11 (6) of the 1996 Act was considerably wide in view of the decisions in SBP and Co. (supra) and Boghara
Polyfab (supra). This position continued till the amendment brought about in 2015. After the amendment, all that the Courts need to see is whether an
arbitration agreement exists  nothing more, nothing less. The legislative policy and purpose is essentially to minimize the Court's intervention at the
stage of appointing the arbitrator and this intention as incorporated in Section 11 (6ÂA) ought to be respected.â€
It is quite apparent from the aforesaid provision of law and the law laid down by the Hon’ble apex Court supra, that after the amendment in
Section 11 (6) (A), whereby Section 11 (6) (A) came to be incorporated, Court is only required to see whether an agreement exists or not.
Necessarily, it is not required to take into consideration all other ancillary issues raised on behalf of the opposite party, who is opposing the
appointment of an Arbitrator.
This Court after having carefully perused material available on record finds substantial force in the argument of learned counsel representing the
petitioner that since in the case at hand, respondent despite having received communications Annexures PÂ3 to 6, failed to refer the matter to the
Arbitration in terms of Clause 46 of the agreement, petitioner rightly approached this Court in the instant proceedings for appointment of an Arbitrator.
Consequently, in view of aforesaid detailed discussion as well as law laid down by the Hon’ble Apex Court supra, petition is allowed and with
the consent of the learned counsel representing the parties, Shri B.S.Chauhan learned Senior Advocate, HP High Court, Shimla, is appointed as an
arbitrator to adjudicate the dispute inter se parties. His consent/declaration under Section 11(8) of the Arbitration & Conciliation Act has been
obtained. He has no objection to his appointment as an arbitrator in the present matter. He is requested to enter into reference within a period of two
weeks from the date of receipt of a copy of this order. It shall be open to the Arbitrator to determine his own procedure with the consent of the
parties. Otherwise also, entire procedure with regard to fixing of time limit for filing pleadings or passing of award stands prescribed under the Act.
Needless to say, award shall be made strictly as per the provisions contained in Arbitration & Conciliation Act. A copy of this order shall be made
available to the learned Arbitrator, named above, by the Registry of this Court, within a period of two weeks, enabling him to take steps for
commencement of the arbitration proceedings.The petition is disposed of alongwith pending applications, if any.