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Judgment
Sathish Ninan, J.
There is dispute between the parties in relation to the construction agreement entered into between them. The agreement contain an Arbitration Clause, which reads thus:
“Arbitration The arbitration shall be conducted by a sole arbitrator who shall be appointed on mutually agreeable basis by both parties (Client and the Contractor) within 15 (fifteen) days of giving written notice in case a mutual agreement on appointing such an arbitrator cannot be reached, both the Client and the Contractor shall appoint an Arbitrator of their choice and the two appointed Arbitrators shall further appoint a third arbitrator, who shall act as presiding Arbitrator. The proceedings of the arbitration shall follow the Indian Arbitration and Conciliation Act 1996 or any latest amendments, if any then in force.
The venue if the arbitration shall be at Kochi-India only and all proceedings shall be subject to the jurisdiction of the appropriate courts at Ernakulam only.”
Alleging that the parties were not able to arrive at consensus regarding the appointment of Arbitrator, this Arbitration Request has been filed.
The respondent has filed a counter affidavit opposing the prayer. Contentions have been urged regarding non-compliance with the procedures stipulated under the agreement for appointment of Arbitrator, maintainability of the Arbitration Request, and also on the arbitrability of the claim on various grounds.
Heard the learned counsel on either sides.
The Arbitration Clause relied on by the parties stipulate the following procedures:
(i) The parties may on consensus appoint a Sole Arbitrator.
(ii) On failure to arrive at a consensus in terms of clause (i) above, each of the parties can nominate there own Arbitrator and it is for the said Arbitrators to nominate the third Arbitrator.
The parties having failed to arrive at a consensus with regard to the nomination of a Sole Arbitrator it is for them to comply with the stipulation No.2 as above. The petitioner would contend that though he had suggested an Arbitrator, the same was not acceptable to the other side.
As noticed above, the second limb of the Arbitration Clause provides that both parties may appoint their own Arbitrators. It is for the parties to comply with the said procedure. The Arbitration Request is not liable to be entertained at this stage when the parties have not admittedly complied with the procedures stipulated in the agreement between them.
Thus, leaving open the contentions and rights of the parties, the Arbitration Request is closed.