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"41. In the event of any dispute or different which may arise by and between the parties hereto, the same shall be resolved in accordance with the provisions of the Indian Arbitration & Conciliation Act, 1996 as also u/s. 91 of MCS Act, 1960 as amended up to date or by referring to the Sole Arbitrator as may be mutually agreeable by and between the parties hereto."

4. In such view of the matter, Mr. Shiralkar would be correct in his contention that clause 41 is an enabling clause which merely enables the parties to enter into a further agreement, and decide as to whether they would be inclined to take recourse to an arbitration or take recourse to Section 91 of the MCS Act namely to invoke the jurisdiction of the cooperative Court for adjudication of the disputes between the parties.

5. In the context of such enabling clause, it may be apposite to refer to a recent decision of this Court in Derivados Consulting Pvt. Ltd. vs. Pramara Promotions Pvt. Ltd.1 in which considering some what similar clause, this Court adverting to the well settled principles of law had observed that the endeavour of the Court in the Section 11 proceedings would be to examine, whether an arbitration agreement between the parties at all exists. This, more particularly considering the provisions of sub-section (1) of Section 7 of the Act which provides that the arbitration agreement means an agreement by the parties "to submit to arbitration". Thus, the basic requirement being that the parties need to subject themselves to refer the disputes to arbitration. Applying such requirement of law to the arbitration clause subject matter of such proceedings, which also contained the word "may", the Court came to a conclusion, that use of the word "may" indicated, that the parties agreed to a future possibility and/or a choice or a discretion as available to the parties to enter into an arbitration agreement, which would not mean 1 Arbitration Application No. 4 of 2022, decided on 08 June, 2022 Prajakta Vartak 3 6-carap 9-22@ carbp 17-22 that the parties have agreed to subject themselves to arbitration leading to a conclusion that there was no arbitration agreement between the parties. It may be appropriate to note the following observations of the Court which also become applicable in the facts of the present case:-