S. Muralidhar ORDER
Dr. S. Muralidhar, J.
1. This is a petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996 ('Act') filed by the Petitioner, M/s. R.B. Saxena & Sons, against the Respondent, Mahindra Logistics Limited, seeking the appointment of an Arbitrator to adjudicate the disputes between the parties arising out of the contract dated 29th November 2014 which contains an arbitration clause (Article 22). The said Clause of the contract reads thus:
"Article 22: Dispute resolution
In the event that any dispute arises between the parties in connection with this Agreement, the construction of any provision of this Agreement or the rights, duties or liabilities of the parties hereto either party may give to the other party written notice of the existence of a dispute or may call a meeting to resolve the same. Such meeting shall be held within (14) fourteen days of the date of such notice (unless otherwise agreed) and will be attended to by the senior management of both the parties (who have the authority to agree on action (s) to be taken) to resolve the dispute amicably.
If mutual resolution cannot be reached within 30 (thirty) days of such meeting, the parties shall be at liberty to refer the dispute for arbitration to be conducted as per the Arbitration and Conciliation Act, 1996 MLL shall appoint of a sole arbitrator. The venue of arbitration shall be MUMBAI only. The arbitration proceedings shall be conducted in English. Any award made in such arbitration will be final and binding on both parties.
The parties agree that all negotiations connected with the dispute shall be conducted in confidence and shall not be divulged to any unconnected third party."
2. It is submitted that the dispute between the parties led to the Petitioner invoking Article 22 by its letter dated 16th April 2016 to the Respondents, as follows:
"This is to inform you that we have been waiting for settlements of our payments or appointing of Arbitrator from your side as per contract.
As in spite of our best possible efforts to settle the matter amicably, you have failed in duties and we have waited long enough for you to do the needful but your opportunity of appointing Arbitrator as per the agreement, now stands forfeited.
Now we are left with no other option but to move to the courts for appointing an independent Arbitrator."
3. A preliminary objection has been raised by the Respondents to the maintainability of the present petition. Apart from pointing out that in view of Article 22 in terms whereof the place of arbitration is Mumbai, Article 23 of the Contract which talks of the Governing laws and reads thus:
"Article 23: Governing Laws
This Agreement shall be governed by and construed in accordance with the laws of India.
The Courts of Mumbai shall have exclusives jurisdiction in respect of matters arising out this agreement."
4. He accordingly submits that the parties have consciously decided to exclude the jurisdiction of Courts other than Mumbai Courts.
5. In countering the above preliminary objection learned counsel for the Petitioner sought to place reliance on the decision of the Supreme Court in Bharat Aluminium Inc. (BALCO) v. Kaiser Aluminium Technical Service Inc.