Rekha Palli DECISION
Rekha Palli, J.
1. The present petition under Section 11 of the Arbitration and Conciliation Act, 1996 seeks appointment of an arbitrator for adjudication of disputes which have arisen between the parties in relation to the Agreement dated 14.12.2021.
2. In support of the petition, learned counsel for the petitioner draws my attention to Clause 76 of the General Conditions of Contract (hereinafter referred to as "GCC") as modified by Clause 19 of the Additional Contract dated 14.12.2021 whereby Clauses 76.1 to 76.3 were added to the original Clause 76 of the GCC. By placing reliance on Clause 76.1, he submits that the disputes between the parties which have arisen in the context of the Agreement dated 14.12.2021 are required to be referred to a sole arbitrator to be appointed mutually by the parties. However, upon the petitioner invoking arbitration, the respondent vide its communication dated 12.07.2022 proceeded to unilaterally appoint Shri Malu Ram Choudhary as the Sole Arbitrator thus compelling the petitioner to approach this Court.
3. On the other hand, learned counsel for the respondent, while not disputing that the parties are governed by the Agreement dated 14.12.2021 containing the arbitration clause, submits that since the agreement was executed on the basis of a forged experience certificate furnished by the petitioner, the agreement in itself stood vitiated by fraud. He submits that the respondent has, on 14.03.2023, lodged a complaint with Assistant Commissioner of Police, Economic Offence Wing against the petitioner for furnishing a fake experience certificate at the time of entering into the aforesaid agreement, which complaint has already been forwarded to the Deputy Commissioner of Police, South District, New Delhi on 13.06.2023. He, therefore, contends that the claims raised by the petitioner are based on violation of criminal law and are thus non-arbitrable. In support of his plea, he seeks to place reliance on a decision of the Apex Court in Rashid Raza vs. Sadaf Akhtar MANU/SC/1249/2019 : (2019) 8 SCC 710 as also on a decision of a Coordinate Bench in Avantha Holding Ltd. vs. CG Power and Industrial Solutions Ltd, MANU/DE/3352/2021.
4. Learned counsel for the respondent further submits that merely because the respondent had inadvertently, upon the request of the petitioner, proceeded to appoint Shri Malu Ram Chaudhary as the sole Arbitrator in July, 2022, that cannot be a ground to ignore the criminal complaint now filed by the respondent which shows that the agreement dated 14.12.2021 in itself was vitiated by fraud. Resultantly, when the fraud committed by the petitioner is going to be investigated, the disputes raised by the petitioner ought not to be referred to arbitration.
5. In response, learned counsel for the petitioner submits that the criminal complaint on which the respondent is seeking to rely is merely an afterthought and was admittedly lodged after the filing of the present petition. Furthermore, taking into account that the respondent had itself proceeded to appoint an Arbitrator in July, 2022, it cannot at this stage be said that the agreement is vitiated by fraud as is sought to be urged by the respondent.
6. He further contends, by placing reliance on a subsequent decision dated 18.04.2022 passed by a Coordinate Bench in Amrish Gupta v. Gurchait Singh Chima, MANU/DE/1277/2022, that the disputes between the parties, being purely private in nature, cannot be treated as a matter in rem and, therefore, ought not to be characterised as 'non-arbitrable'.
7. Having considere........