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5. The respondent raised certain claims against the petitioner and, on the dispute remaining unresolved, sought reference of the disputes to arbitration. On 21 June 2021, the respondent addressed a notice to the petitioner styled as "NOTICE OF INVOCATION OF ARBITRATION AGREMENET AS CONTAINED IN MEMORANDUM OF UNDERSTANDING DATED 20.12.2019 AND APPOINTMENT OF ARBITRATOR". Having set out the controversy in dispute, the notice concluded thus :

9. That the Ld. Counsel for the claimant has argued that their notice dated 21.06.2021 completed the requirements of invocation of arbitration under section 21 of the Arbitration and Conciliation Act, 1996, as in the said notice it is specifically mentioned that we have already appointed the sole arbitrator and non-response or silence shall be treated as a consent for appointment of sole arbitrator. It is also argued by the Ld. Counsel for the claimant that if the respondent was having any objection for the appointment of sole arbitrator or for invocation of arbitration, the respondent could have raised the objection in his reply dated 01.07.2021 to the effect that he has objection for the appointment of sole arbitrator or for invocation of arbitration. It is also argued that the respondent could have also raised objection at any other subsequent stage, when they have appeared before the arbitration tribunal or could have mentioned in his reply to the statement of claim. It is argued that the respondent has not raised any objection for invocation of arbitrator at any point of time and now when pleadings of both the parties are completed and evidence yet to be started, the instant O.M.P. (COMM) 297/2023 Digitally Signed By:AJIT Page 5 of 21 Digitally Signed KUMAR By:CHANDRASHEKHARAN HARI SHANKAR Signing Date:09.08.2024 Signing Date:09.08.2024 19:34:37 19:34:02 application under section 21 R/w section 32 of the Arbitration and Conciliation Act, 1996 has been filed for raising the objection for invocation of arbitration, which is completely without any justification and cause and reason.
10. The Ld. Counsel for the respondent has argued that whatever reasons are there but the claimant is failed to comply the mandatory requirement of provisions of sending a valid legal notice under section 21 of the Arbitration and Conciliation Act, 1996 for invocation of arbitration. The Ld. Counsel for the respondent also argued that there cannot be an unilateral appointment of the arbitrator and the present arbitration tribunal has no jurisdiction to try and adjudicate the claim amount. The Ld. counsel for respondent also relied upon the case laws Lt. Col. H. S. Bedi (Retd.) & Anr. Vs. STCI Finance Limited, OMP (Comm.) 427/2018 and Alupro Building System Pvt. Ltd. Vs. Ozone Overseas Pvt. Ltd., OMP 3/2015.

15. Had the petitioner succeeded in the arbitration, submits Mr. Uppal, tongue firmly in cheek, that such a contention would hardly have been raised.

16. Mr. Uppal places reliance on a judgment of a Division Bench of this Court in Arjun Mall Retail Holdings Pvt Ltd v. Gunocen Inc10, specifically on paras 32 to 35 of the report which read:

"32. It is observed that the respondent had sent several notices invoking the Arbitration clause, the first of which was a Notice dated 11.11.2017. Thereafter, vide legal notice dated 02.08.2018, the respondent had informed the appellants in respect of invocation of the arbitration clause and appointment of the learned Sole Arbitrator. Therefore, the Tribunal entered into reference on 02.08.2018. When the matter came up for hearing before the learned Arbitrator on 31.10.2018 as well as on 24.11.2018, none appeared on behalf of the appellants. Relevantly, there is a time gap of almost eight months from the date of issuance of first legal Notice of invocation of arbitration proceedings and its actual commencement. Yet, the appellants did not take any recourse to law for revocation of appointment of learned Arbitrator or in challenge of the arbitration clause.