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(11) The Non-applicant has filed counter affidavit to the said affidavit stating therein that the contents mentioned by the Applicant that representatives of the Applicant company, on several occasions also met the concerned officials to the respondent authority in person to sort out the dispute and to try and explore possibility for any amicable settlement are false and incorrect. It was further averred that the Applicant never took any interest for any amicable settlement. It was also stated therein that the without following the necessary provision of Articles 16.1 and 16.2 to amicably settle the dispute through conciliation of the Agreement, the Applicant has filed the present arbitration and now has further filed the present additional affidavit narrating the false facts. It has been further repeated that the Applicant never participated in any of the conciliation meetings for amicable settlement despite receiving number of letters sent by the JMC.

(12) The preliminary objection raised by the counsel for the JMC is that the Applicant never took any interest to participate in the conciliation meetings, therefore, the matter could not be referred for amicable settlement in accordance with the conciliation procedure set forth in Clause 16.2. Counsel for the JMC further submits that a bare reading of Clauses 16.1 and 16.2 of the Dispute Resolution would reveal that any dispute or difference or controversy of whatever nature, howsoever arising under or out of or in relation to this Agreement between the parties, and so notified in writing by either party to the other party shall in first instance attempted to resolved amicably in accordance with the Conciliation Procedure set forth in Clause 16.2. The said Clause 16.2 relates to reference to the Authority concerned and fixing of the time limit for resolution of the said dispute through conciliation and further, in case of not amicably settling the dispute within fifteen days of the meeting or thirty days of notice in writing referred to in Clause 16.1.1, either party may refer the dispute to arbitration in accordance with the provisions of Clause 16.3, therefore, the clause relating to amicable settlement in accordance with the conciliation procedure set forth in Clause 16.2 is a condition precedent which has not been followed in the present case and directly, the arbitration application has been filed on expiry of thirty days' notice for appointment of Arbitral Tribunal which is premature, therefore, the same is not maintainable.

16.1.2 The parties agree to see their best efforts for resolving all disputes arising under or in respect of this Agreement promptly, equitably and in good faith and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any dispute.

16.2 Conciliation In the event of any Dispute between the parties, either party may require such Dispute to be referred to the Chief Executive Officer and / or Mayor of the Authority and the Director of the Developer for the time being (in case of consortium / JV the director of th Lead Member), for amicable settlement. Upon such reference, the two shall meet at earliest and not later than seven (7) days from the date of reference to discuss and attempt to amicably resolve the dispute. If such meeting does not take place within the period of seven (7) days or Dispute is not amicably settled within fifteen (15) days of the meeting or the Dispute is not resolved as evidenced by signing the written terms of settlement within thirty (30) days of notice in writing referred to in clause 16.1.1 above or such longer period as may be mutually agreed by the parties, either party may refer the Dispute to arbitration in accordance with the provisions of clause 16.3.

(29) As regards the submission of Mr.Mahendra Singh that the dispute between the parties was incapable of being resolved by conciliation or reconciliation, or either of the parties may reject the invitation for commencement of the agreed conciliation proceedings within the meaning of Sec.62(3) of the Act of 1996, I refrain myself from giving the finding on the said issue as the same would touch the merit of the claim which is not permissible for me in view of Para 22.3 of National Insurance Co. (supra), while limiting the scope of Sec.11(6) which apply with equal force while considering the issue whether the agreed arbitral procedure has been followed or not and further, Sec.62(3) of the Act of 1996 is not applicable in the present case as the amicable settlement by way of conciliation procedure set forth in Clause 16.1 and 16.2 has been made the condition precedent for invoking clause 16.3 Arbitration with the opening words any dispute which is not resolved amicably shall be referred to a panel of three Arbitrators out of the panel of 5 Arbitrators made out by the Authority in terms of Arbitration and Conciliation Act, 1996. In a case where amicable settlement as per the conciliation procedure set forth has been made a condition precedent for invoking the arbitration clause, it is not open to an Applicant to reject the invitation for conciliation.