Arb.P./6/2025
2025 Latest Caselaw 9494 Gua

Gauhati High Court

Arb.P./6/2025 on 16 December, 2025

Author: Soumitra Saikia

Bench: Soumitra Saikia

GAHC010010382025




                         IN THE GAUHATI HIGH COURT
          (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
                                        PRINCIPAL SEAT
                                    ARB. PET NO. 6/2025
                                  M/S NES Digboi Bogapani (177804),
                                  A proprietorship concern, represented by its Proprietor,
                                  Mrs. Ranjita Dhanowar, Aged about 41 years, wife of
                                  Sri Gautam Dhanowar, Lachit Nagar, P.O & P.S.-Digboi,
                                  District-Tinsukia, Assam, 786171
                                                                       ........Petitioner

                                               -Versus-

                                  Bharat Petroleum Corporation Limited,
                                  Represented by Territory Manager, Retail Bharat
                                  Petroleum Corporation Limited, First Floor, Nexia Park
                                  GMCH Road, Ananda Nagar, Christian Basti, Guwahati,
                                  Assam 781005
                                                                   ........Respondents

-BEFORE-

HON'BLE MR. JUSTICE SOUMITRA SAIKIA

Advocate for the petitioner :Mr. G.N Sahewalla, Sr Advocate Assisted by Mr. M Sahewala, Advocate

Advocate for the respondents :Mr. S.S Roy, CGC Mr. S Borthakur, Advocate

 Date on which Judgment was reserved : 16.09.2025

 Date of Pronouncement of Judgment : 16.12.2025

 Whether the pronouncement is of the Operative Part of the Judgment : No

 Whether the full Judgment has been Pronounced : Yes

JUDGMENT AND ORDER (CAV)

Heard Mr. GN Sahewalla, learned Senior Counsel

assisted by Mr. M Sahewalla, learned counsel for the

petitioner. Also heard Mr. S Borthakur, learned counsel and

Mr. SS Roy, learned CGC for the respondent.

2. The petitioner before this Court was awarded dealership

of Dispensing Pump and Selling License by respondent

company by execution of proper agreement dated 28.03.2023.

By the said agreement, the petitioner had been running a petrol

pump at Tingrai Gaon, Tinsukia since the year 2008. On the

basis of a dealership granted to the petitioner by Numaligarh

Refinery Limited (hereinafter referred to as "NRL"), the NRL

was taken over by BPCL in the year 2012 whereupon a fresh

agreement was entered by and between the petitioner and

BPCL for running the patrol pump. In the year 2023, there was

some persistent malfunctioning in the dispensing unit of the

petitioner's petrol pump. This dispensing unit was installed and

maintained by M/S Gilbarco Vedder Root (GVR) which was 3rd

Party vendor appointed by the BPCL and who supplied the

dispensing unit for the petrol pump. The internal parts of the

dispensing units were sent to GVR for testing wherein it was

found that the dispensing unit had been manipulated and

tampered with.

3. It is the petitioner's case that the Legal Metrology

Department, Government of Assam had inspected the

dispensing unit as a whole and issued a certificate ruling out

any irregularity or tampering in a dispensing unit. However, a

show-cause notice dated 22.01.2024 was issued to the BPCL

asking them to show cause as to why the dealership agreement

should not be cancelled. The petitioner although replied to the

show-cause notice, however, subsequently approached the

Court of Civil Judge (Senior Division)-cum-Commercial Court,

Kamrup (Metro) under Section 9 of the Arbitration and

Conciliation Act, 1996 praying for an interim protection

restraining the BPCL, namely, the respondent from terminating

the dealership agreement. The Commercial Court by order

dated 03.07.2024 granted an interim injunction to the petitioner

restraining the BPCL from taking any coercive action. The

agreement executed by and between the petitioner and the

respondent contained a clause being Clause- 19 which provided

for settling any disputes and differences arising between the

parties by appointment of an arbitrator. The petitioner

therefore issued a notice dated 15.07.2024 calling upon the

respondents to appoint an Arbitrator. However, the respondent

did not reply to the notice issued. Meanwhile, since the

respondent did not appear before the Commercial Court on

subsequent dates, the interim injunction granted by the

Commercial Court was made absolute by order dated

07.09.2024. The respondent authority thereafter filed an appeal

before the Appellate Court of the Commercial Courts Division,

namely, the Court of the Additional District Judge No. 2,

Kamrup (Metro) whereupon the appellate Court stayed the

order passed by the Commercial Court dated 07.09.2024 by

order dated 05.12.2024 on the ground that the order was

obtained without presenting the correct and true facts and

circumstances of the case. Being aggrieved, another second

appeal was filed before the Commercial Appellate Division

Gauhati High Court being Comm. App. Div. 1/2025. The

Division Bench of this Court from the question of maintainability

of the second appeal, dismissed the same on the grounds and

reasons mentioned in the order dated 23.04.2025. Meanwhile,

the online application filed before this Court seeking

appointment of an arbitrator having not been replied to, the

present application under 11(6) of the Arbitration and

Conciliation Act, 1996 has been filed by the petitioner. During

the pendency of this petition, the respondent authorities in view

of the suspension of the injunction order passed by the

Commercial Court's Division which was stayed by the Appellate

Court of the Commercial Courts Division, terminated the

contract of the agreement. Being aggrieved, the present

petitioner preferred an SLP being SLP No. 2235/2025 which

also came to be dismissed on 30.04.2025, whereby liberty was

granted to the petitioner to approach the concerned appellate

Court for expeditious disposal of the appeal filed. Being

aggrieved, the petitioner approached this Court by filing W.P(C)

No. 2369 of 2025. A Coordinate Bench of this Court by order

dated 09.05.2025 upon consideration of the matter, dismissed

the writ petition giving liberty to the petitioner to approach the

Commercial Appellate Division for early disposal of the appeal.

4. The learned Senior Counsel for the petitioner by referring

to the agreement submits that there is a specific clause being

clause No. 19 which categorically provides for appointment of

an arbitrator in the event any dispute arises between the

parties arising out of the said agreement.

5. It is the submission of the learned Senior Counsel for the

petitioner that when there is a specific clause for agreement,

the same ought to have been honored by the respondent and

the appointment ought to have been made by referring the

matter to be decided by an arbitrator.

6. The learned Senior Counsel for the petitioner, therefore,

submits that in terms of the agreement, the arbitrator ought to

have been appointed, however, failed, the present application

has been filed seeking appointment of an arbitrator under

Section 11(6) of the Arbitration and Conciliation Act, 1996. The

learned counsel for the petitioner has submitted that where

there is no dispute with regard to the existence of a valid

arbitration agreement, a referral Court is required to appoint an

arbitrator where the parties are failed to honor the procedure

prescribed under the provisions of the agreement executed by

and between them.

7. Per contra, Mr. S.S Roy, learned counsel for the

respondent strongly disputes the contention of the petitioner. It

is submitted that the contention of the petitioner is incorrect as

the Clause 19 of the Agreement itself clearly specifies that an

arbitration proceedings shall be conducted in accordance with

SCOPE Forum for Arbitration Rules for the time being in force

and as amended from time to time.

8. Referring to the counter affidavit filed, it is submitted that

the Rules of Conciliation and Arbitration, 2003 has been

formulated for the SCOPE forum which is standing Conference

of Public Enterprises. It is submitted that this is an institution

which provides for resolution of disputes by way of conciliation

and arbitration and certain rules have been framed, which are

required to be adhered to by the parties. He submits that for

arbitration, the procedure is clearly prescribed where it is

provided that the party initiating arbitration besides sending a

written invitation to arbitration should also approach the Scope

Forum for Conciliation Arbitration (SFCA) along with payment of

registration fee as prescribed under Clause 23. It is submitted

that under Clause 23, a non refundable registration fee of Rs.

15,000+Statutory taxes applicable in each case shall be payable

along with a request for arbitration through demand draft in

favor of SCOPE payable at Delhi. The schedule of fees and

administrative charges etc are all clearly prescribed under the

Rules. Learned counsel for the petitioner, therefore, submits

that where the procedure has been clearly prescribed, the

party initiating the arbitration is required to adhere to the

same; and having failed to follow the prescribed

procedure, they are not entitled to seek appointment by filing

an application under section 11(6) of the Arbitration and

Conciliation Act, 1996. In support of his contention, he has

referred to the Judgments rendered in D. Raja Reddy Vs.

Director General, National Institute of Agricultural Extension

Management, Hyderabad reported in 1999 Supreme (AP) 108;

Northern Railway Administration, Ministry of Railway, New Delhi

Vs. Patel Engineering Company Limited, reported in (2008) 10

SCC 240 and Iron & Steel Co. Ltd. Vs. Tiwari Road Lines,

reported in (2007) 5 SCC 703.

Referring to the judgments, the learned counsel for the

Respondent submits that the stage for invocation of powers

under Section 11(6) of the Arbitration and Conciliation Act,

1996 will be available only upon compliance of the procedure

prescribed by the procedure agreed in the contract/ agreement

by the party seeking arbitration. Where the party seeking

arbitration has failed to follow the procedure prescribed, the

power to appoint an arbitrator under section 11(6) ought not to

be invoked by this Court.

9. The petitioner has filed an affidavit in rejoinder reiterating

their statements and contentions raised in the petition and

disputing the contentions raised by the Respondent.

10. The learned counsel for the parties have been heard.

Pleadings available on record have been perused. Judgments

cited have also been carefully noted.

11. At the outset, it is necessary to note that the petitioner

having approached the Commercial Courts Division and had

obtained an injunction order which however subsequently came

to be suspended by the Appellate Court. The appeal

proceedings are presently pending. No materials have been

placed before the Court by either party to submit that the

appeal has come to a conclusion or any orders thereof have

been passed to that effect.

12. It is also seen that the challenge made to the Appellate

Division of the Commercial Courts Division to the order dated

05.12.2024 whereby the interim order passed by the

Commercial Courts Division dated 07.09.2024 was suspended

which came to be further assailed before the Commercial

Court's Division of the Gauhati High Court. The challenge made

came to be dismissed by judgment and order dated 23.04.2025

passed in Comm. App. Div. No. 1/2025. The SLP filed against

the said order by the petitioner also came to be dismissed by

order dated 30.04.2025 giving liberty to the petitioner to

request the Appellate Court of the Commercial Courts Division

to expedite the hearing of the appeal.

13. There is no dispute that there is a written agreement

between the parties which contains an arbitration clause. Since

no dispute is raised by either party with regard to the existence

or the legality of the arbitration clause in the agreement, it

must be held that the said arbitration clause is a valid

arbitration clause. The arbitration clause available in the

agreement being Clause 19 is required to be referred to at this

stage. The Clause 19 reads as under:

"19. Any dispute or difference whatsoever arising out of or in connection with this Agreement including any question regarding its existence, validity, construction, interpretation, application meaning, scope, operation or effect of this contract or termination thereof shall be referred to and finally resolved through arbitration as per the procedure mentioned herein below:

(a) The dispute or difference shall, in any event be referred only to a Sole Arbitrator.

(b) The appointment and arbitration proceedings shall be conducted in accordance with SCOPE forum of Arbitration Rules for the time being in force or as amended from time to time.

(c) The Seat of arbitration shall be at Kamrup Metropolitan

(d) The proceedings shall be conducted in English language.

(e) The cost of the proceedings shall be equally borne by the parties, unless otherwise directed by the Sole Arbitration."

14. A perusal of the Arbitration clause reflects that the

procedure for arbitration will be as per the procedure

prescribed under SCOPE. From the pleadings available it is seen

that SCOPE is the Standing Conference of Public Enterprises.

The main object of the SCOPE as prescribed under the Rules is

as under:

"The main object of SCOPE Forum of Conciliation and Arbitration (ADR) is to serve in settling disputes between Public Sector Enterprises and their Associates within shortest possible time at more economical and cheaper cost in comparison to other institutions. Forum has retired judges of Supreme Court, High Courts, retired Secretaries and Jt. Secretaries of Govt. of India, Chief Executives, Directors and senior officials of PSEs, besides Advocates, CAs and other professionals as Conciliators and Arbitrators on its panel.

The Forum has also its own infrastructure with a spacious Arbitration Hall, having sitting capacity of 15 persons and more with all the modern facilities such as projector for live projection of record of proceedings on a large screen with free service of mineral water, tea/coffee and biscuits.

High tea and lunch can also be arranged by the Forum on request in advance at the cost of the parties by authorized caterer of SCOPE."

15. The SCOPE forum comprises of two parts, one is the

forum for conciliation and the other is for arbitration. The

SCOPE forum for arbitration has a separate set of Rules which

is a part of the SFCA. The relevant clauses of the SCOPE

arbitration is extracted below:

3. ARBITRATION CLAUSE

The SCOPE Forum of Conciliation and Arbitration (SFCA) recommends to all parties desirous of making reference to Arbitration by this Forum shall provide the following Arbitration clause in their existing and future contracts if law applicable does not prohibit such reference.

"Any dispute or difference whatsoever arising between the parties 2 relating to construction, interpretation, application, meaning, scope, operation or effect of this contract or the validity or the breach thereof, shall be settled by arbitration in accordance with the Rules of Arbitration of the "SCOPE" and the award made in pursuance thereof shall be final and binding on the parties"

7. PANEL OF ARBITRATORS

i) The Secretary in consultation with two members of the Governing Body shall prepare and maintain a panel of arbitrators from amongst persons qualified and/or possessing knowledge/or experience in their respective field/or profession and arbitration law and procedure and persons of integrity and impartiality and willing to serve as Arbitrator.

ii) All the members of the panel will have equal status and parties will not have any right to challenge the appointment of the Arbitrator on the ground that its nominee Arbitrator has higher status than the other Arbitrator.

iii) The persons who have attained the age of 80 years will automatically cease to be on the panel of the Arbitrator of the Forum. The Secretary shall ensure that the Panel is 6 regularly reviewed and updated after removing those who have attained the age of 80.

In case where Arbitrator/Presiding arbitrator has been appointed and during the pendency of arbitration proceedings, he/she attains the age of 80 years, he/she will continue to be arbitrator/Presiding arbitrator till completion of arbitration proceedings upto passing of final award.

16. PROCEDURE FOR ARBITRATION PROCEEDINGS

The party initiating Arbitration shall send to the other party a written invitation to arbitration under these rules, briefly identifying the subject matter of the dispute. Thereafter the party would approach the SFCA for Arbitration alongwith payment of registration Fees as per clause 23

20. INITIATION OF ARBITRATION PROCEEDINGS

i) Unless there is provision(s) in the agreement between the parties for initiation of arbitration proceedings, a party wishing to have recourse to arbitration proceedings under these Rules shall submit its request for Arbitration to the Secretariat of the Forum with a copy to the other side. The Secretariat of the Forum shall notify in writing to the claimant and the respondent, the receipt of the request and the date of such receipt. The request shall, inter-alia, contain the following information;

a) the name in full description and address including e-mail of each of the parties with copy to other party.

b) Statement of claim and facts supporting the claim, points at issue and relief or remedies sought with relevant details of the claimant's case with copy to other party.

c) Copies of the Arbitration agreement, and the Contract and such other documents and information relevant or relied upon with copy to other party.

d) Deposit the Advance cost of Arbitration as determined by Secretary ofthe Forumwhich will be finally adjusted towards Arbitration cost and expenses.

ii) On receipt of an application alongwith the claim statement, the Secretariat of the Forum shall send to the other Party a copy of claim statement, if already not sent by the claimant and attached documents and ask such other party to furnish within thirty days or within an extended date, a defense statement and counter claim (if any) setting out his case accompanied by all

documents and relevant information in support of or bearing on the matter. If the respondent party fails to communicate their statement of defence within 12 the time frame agreed upon the parties or determined by the Secretariat or arbitral tribunal, the Secretariat or the tribunal shall have the discretion to treat the right of the respondent party to file such a statement of defence as having been forfeited.

iii) All statements replies and other documents and papers submitted by the parties and all appended documents must be supplied as indicated by the Secretariat. Where there is more than one arbitrator or more than one opposing party, the parties shall furnish to the Secretariat such number of additional copies as may be required by the Secretariat.

iv) After completion of the pleadings, the Secretary will forward the complete set of documents to the Arbitrator/ Arbitral Tribunal minus what has already been supplied by the parties for further arbitration proceedings.

v) If agreement between the parties contains provision regarding initiation of arbitration proceedings, the initiation will be done in terms of the said provisions.

vi) If the court passes any interim measure under Section 9 (for example, a party may seek interim protection of goods, amounts, property, etc. that is the subject matter of the arbitration before a court), the arbitral proceedings must commence within 90 days of the court order."

The said Rules also contain the fee payable to arbitrators

as well as charges for conference hall and secretarial services.

16. During the course of the hearing, the Respondent has

also placed before the Court the list of Empanelled Arbitrators,

which contains Empanelled Arbitrators for the Eastern region.

The Empanelled Arbitrators include several former High Court

judges as well as several retired district judges.

17. From a perusal of these provisions extracted, it is seen

that the party initiating the arbitration, besides issuing the

notice to the other contracting parties, must represent before

the SCOPE for appointment and initiation of arbitration. In the

Agreement also, as discussed above, there is a clear provision

that the arbitration shall be as per the procedure prescribed

under SCOPE proceedings. The petitioner, however, has

projected before this Court that the SCOPE Rules are not

applicable. According to the petitioner as per Clause 3 of the

SCOPE forum of conciliation and arbitration, every agreement is

mandatorily required to include the arbitration clause prescribed

at Clause No. 3 of the SCOPE Rules for Arbitration. It is the

contention of the learned counsel for the petitioner that such

clause not having been incorporated in the Agreement, the

SCOPE Rules are not applicable and therefore there is no need

for the petitioner to approach the SCOPE for initiation of

arbitration and that this Court under 11(6) of the Arbitration

and Conciliation Act, 1996 is empowered to appoint appropriate

arbitrator as the respondent has failed to respond to the

demand made for appointment.

18. Having noticed the provisions of the Agreement and

upon due consideration of the pleadings available as well as the

submissions made before the Court, it is clear that there was a

validly executed agreement between the parties which contain

an arbitration clause. The clause also specifically provides that

the procedure for arbitration shall be as per the procedures laid

down under SCOPE. This is not disputed by the petitioner. It is

well settled that a referral Court's power generally is to examine

the existence of a valid arbitration agreement. However, it is

equally well settled that the stage for exercising powers under

Section 11(6) of the Arbitration and Conciliation Act, 1996 is

only in the event where the parties cannot agree on

appointment of any arbitrator and/or where the parties have

failed to perform the functions as agreed to. Although it is

urged before this Court that the respondent did not reply to the

notice issued by the petitioner calling upon them to appoint an

arbitrator, it is to be equally noted that the petitioner had

executed the agreement dated 28.03.2023 which had the

Clause-19 incorporated specifying that the procedure for

arbitration shall be as per the SCOPE procedure. Such

execution of the agreement will amount to acceptance of all the

conditions mentioned in the Agreement which the petitioner

had accepted without any demur. At no stage had the

petitioner questioned the imposition of this clause specified

under Clause 19 that the arbitration has to be as per the

procedure prescribed under the SCOPE Rules. Even in the

litigation which had ensued before the Commercial Courts

Division and which were also examined by the Commercial

Court's Division of this High Court and which had finally

travelled to the Apex Court, the question of interpretation of

Clause 19 was never an issue. In writ petition also filed by the

petitioner being W.P(C) No. 2369/2025 which came to be

dismissed by order dated 09.05.2025, this issue was also never

raised. Therefore, it must be accepted that the petitioner all

along knew that arbitration has to be as per the procedure

prescribed under SCOPE as mentioned in the agreement. It is

no longer res-integra that arbitration is but a creature of an

agreement between the parties. Where the parties agree to

refer their disputes to arbitration, then the parties are required

to honor not only the said intention but also the intentions

expressed in the agreement to follow the procedure for

resolving the disputes by arbitration. In the facts of the present

case, the procedure agreed upon by the parties is the

procedure prescribed under SCOPE. Under the procedures

prescribed in SCOPE, the party initiating the arbitration is

required to approach the SCOPE for appointment of an

arbitrator. In Iron Steel Co. Ltd (Supra), the Apex Court, while

examining the scope of Section 11(6) of the Arbitration and

Conciliation Act, 1996 clearly held that the legislative scheme of

Section 11 is very clear. If the parties are agreed on a

procedure for appointing the arbitrator or arbitrators as

contemplated by sub-section 2 thereof, then dispute between

the parties has to be decided as per the same procedure

agreed upon and as specified in the agreement executed.

Recourse to the Chief Justice or as his designate cannot be

taken recourse to without first comparing with the procedure

prescribed. The agreed party can approach the Chief Justice or

as his designate, only if the parties to the contract/agreement

dated 28.03.2023 not agree on any procedure for appointing an

arbitrator as contemplated under sub-section 2 of Section 11 of

the Act. In Iron & Steel Co. Ltd (Supra), there was an

agreement between the parties which provided that in case of

any breach of contract or disputes arising, the same shall be

settled by arbitration in accordance with the Rules of Arbitration

of the Indian Council of Arbitration. There being an agreed

procedure for resolution of disputes by arbitration in

accordance with the Rules of Arbitration, it was held by the

Apex Court that Sections 11, (3), (4) and (5) of the Act of 1995

can have no application. It was also held that the stage for

invocation of the powers under 11(6) of the Arbitration and

Conciliation Act, 1996 had also not arrived. Relevant

paragraphs of the said Judgment are extracted below:

"7. Sub-section (2) of Section 11 of the Act provides that subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator. The opening part of sub-sections (3) and (5) of Section 11 of the Act use the expression "failing any agreement referred to in sub-section (2)". Therefore, sub-

sections (3) and (5) will come into play only when there is no agreement between the parties as is referred to in sub-section (2) of Section 11 of the Act viz. that the parties have not agreed on a procedure for appointing the arbitrator or arbitrators. If the parties have agreed on a procedure for appointing arbitrator or arbitrators, sub-sections (3) and (5) of Section 11 of the Act can have no application. Similarly, under sub-section (6) of Section 11 request to the Chief Justice or to an institution designated by him to take the necessary measures, can be made if the conditions enumerated in clause (a) or (b) or (c) of this sub- section are satisfied. Therefore, recourse to sub-section (6) can be had only where the parties have agreed on a procedure for appointment of an arbitrator but (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure. Therefore, a combined reading of the various sub-sections of Section 11 of the Act would show that the request to the Chief Justice for appointment of an arbitrator can be made under sub-sections (4) and (5) of Section 11 where parties have not agreed on a procedure for appointing the arbitrator as contemplated by sub-section (2) of Section 11. A request to the Chief Justice for appointment of an arbitrator can also be made under sub-section (6) where parties have agreed on a procedure for appointment of an arbitrator as contemplated

in sub-section (2) but certain consequential measures which are required to be taken as enumerated in clause (a) or (b) or (c) of sub-section (6) are not taken or performed.

8. In the present case the agreement executed between the parties contains an arbitration clause and clause 13.1 clearly provides that all disputes and differences whatsoever arising between the parties out of or relating to the construction, meaning and operation or effect of the contract or the breach thereof shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration and the award made in pursuance thereof shall be binding on the parties. This clause is in accordance with sub-section (2) of Section 11 of the Act. There being an agreed procedure for resolution of disputes by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration sub-sections (3), (4) and (5) of Section 11 can have no application. The stage for invoking sub-section (6) of Section 11 had also not arrived. In these circumstances, the application moved by the respondent before the City Civil Court, Hyderabad, which was a designated authority in accordance with the scheme framed by the Chief Justice of the Andhra Pradesh High Court, was not maintainable at all and the City Civil Court had no jurisdiction or authority to appoint an arbitrator. Thus the order dated 31-3-2004 passed by the Chief Judge, City Civil Courts, Hyderabad, appointing a retired judicial officer as arbitrator is clearly without jurisdiction and has to be set aside.

9. The legislative scheme of Section 11 is very clear. If the parties have agreed on a procedure for appointing the arbitrator or arbitrators as contemplated by sub-section (2) thereof, then the dispute between the parties has to be decided in accordance with the said procedure and recourse to the Chief Justice or his designate cannot be taken straightaway. A party can approach the Chief Justice or his designate only if the parties have not agreed on a procedure for appointing the arbitrator as contemplated by sub-section (2) of Section 11 of the Act or the various contingencies provided for in sub-section (6) have arisen. Since the parties here had agreed on a procedure for appointing an arbitrator for settling the dispute by arbitration as contemplated by sub-section (2) and there is no allegation that any one of the contingencies enumerated in clause (a) or (b) or

(c) of sub-section (6) had arisen, the application moved by the respondent herein to the City Civil Court, Hyderabad, was clearly

not maintainable and the said court had no jurisdiction to entertain such an application and pass any order. The order dated 27-12-2004, therefore, is not sustainable."

19. Coming to the facts of the present case, it is seen that

there is a clear provision prescribing arbitration to be initiated

following the Rules and the procedure prescribed under the

SCOPE Forum. The petitioner, having never disputed this aspect

of the contract, it will have to be considered that the petitioner

had accepted this contract without any complaint since its

execution, now cannot be allowed to turn around and dispute

the application of the procedure merely on the ground that the

contract Agreement dated 28.03.2023 does not contain the

"Arbitration Clause" as prescribed under Clause 3 of the of the

arbitration Rules under the SCOPE Forum. As per information

uploaded in the CIS, the Misc. Arbitration Appeal No. 9/2024 is

still pending and the next date fixed in the matter is

23.12.2025.

20. Under such circumstances, this Court is of the view that

the petitioner not having followed the procedure prescribe in

the agreement executed by and between the parties, the stage

for appointment of an arbitrator under Section 11(6) of the

Arbitration and Conciliation Act, 1996 has not come. The

petitioner is entitled to take recourse to the procedure

prescribed in terms of the agreement read with the SCOPE

procedure for commencement of the arbitration proceedings.

The petitioner will approach the SCOPE Forum as per the

procedure prescribed under the SCOPE Forum Arbitration Rules

and thereupon the SCOPE Forum will provide for appointment

of Arbitrator as per the procedure prescribed.

21. As such, in view of the discussions above, it is clear that

the prayer made for appointment of an Arbitrator under Section

11(6) of the Arbitration and Conciliation Act, 1996 by the

petitioner cannot be accepted as the petitioner itself did not

comply with the procedure prescribed which had agreed to in

terms of the agreement dated 28.03.2023 executed by and

between the petitioner and the respondent.

22. In terms of the above, the arbitration petition therefore

stands dismissed. Interim order, if any, stands vacated.

JUDGE

Comparing Assistant