JUDGMENT This petition is filed under Section 11 of Arbitration & Conciliation Act, 1996 (hereinafter referred to as ‘the Arbitration Act’ for short) for appointment of a sole Arbitrator to adjudicate the disputes that have arisen between the petitioner and the respondents. 2. The case of the petitioner is that it is a company registered under the Companies Act, 1956. The main object of the petitioner-Company is to carry on international trade and business and is focusing mainly on the export of iron ore fines. According to the petitioner, it entered into a contract for sale and purchase of iron ore fines on 23.10.2005 on the assurance given by the 2nd respondent on behalf of the 1st respondent that they and acquired the land for the purpose of procuring Iron Ore Fines in Survey Nos.98/P1, 123. 115/1. 125/P3, 98/P2, 215, 125/P1. 125/2, 101/P5, 109/P3, 118/1P1, 111/P1 and 111/P2 at Hogarehalli Village of Birur Hobli, Kadur Taluk, Chikmagalur District. In turn, the petitioner intended to export the iron ore fines extracted from the aforementioned properties after blending with iron ore of lower Fe content to one M/s. Devi Trading Company, registered in Hongkong. The copy of the contract of sale and purchase of iron ore fines dated 23.10.2005 entered into between the petitioner and the 1st respondent, represented by the 2nd respondent, is produced at Annexure – ‘A’ to this petition. As per the said contract, the 1st respondent herein assured to supply 3,60,000 metric tones of iron ore fines by 30th of April 2006 and the delivery of iron ore fines was to commence from 1st November 2005. The mode and manner of payment was also specified in the said contract. As per Clause – 6 of the contract, the petitioner had agreed to pay a sum of Rs.1 crore at the time of signing the contract and additional sum of Rs.1 crore approximately within seven days from the date of signing the contract, provided that the petitioner was satisfied that the 1st respondent had procured enough iron ore fines for lifting and transporting. The said payment of Rs.2 crores made by the petitioner was to be adjusted against the delivery of the first 2 lakh metric tones at Rs.100/- per metric tonne. Further the petitioner was to pay a sum of Rs.5 crores immediately after the commencement of the lifting. The said payment of Rs.2 crores made by the petitioner was to be adjusted against the delivery of the first 2 lakh metric tones at Rs.100/- per metric tonne. Further the petitioner was to pay a sum of Rs.5 crores immediately after the commencement of the lifting. As per the terms of the contract, the petitioner made payment of Rs.50 lakhs to the 1st respondent on 19.10.2005. Thereafter, the petitioner made certain payments on different dates till 27.2.2006. According to the petitioner, the 2nd respondent informed the petitioner that the 1st respondent is the absolute owner of the ‘A’ schedule property and that the respondents 1 and 2 can carry on activities of picking up iron ore in patta lands as per the Government Order dated 27.9.2005. However, the agreement entered between the parties was violated by the respondents, inasmuch as, the iron ore fines were not delivered to the petitioner. According to the petitioner, it has totally paid a sum of Rs.10,13,50,000/- to the 1st respondent under the above contract on the assurance of the 2nd respondent, who is the Chairman and Managing Director of 1st respondent-Company. The agreement contains the arbitration clause i.e., Clause-13. Since the respondents did not agree for getting the disputes resolved through an Arbitrator as per the arbitration clause in spite of exchange of notices in that regard, this petition is filed praying for appointment of an Arbitrator. 3. The statement of objections are filed by the respondents. Respondent No.2 has denied his signature found in the agreement in question vide Annexure – ‘A’. According to the respondents, the signature of respondent No.2 found in the agreement is forged and fabricated by the petitioner to suit its convenience. However, respondent No.2 agreed that he has received over Rs.10,13,50,000/-. According to the respondents, the same is towards raising contract, in respect of which draft agreements were prepared. The respondents have produced the copies of the said drafts as per Annexures – ‘R-9’ and ‘R-10’. In effect, the respondents deny that they have entered into an agreement as per Annexure – ‘A’ and consequently, the petitioner cannot ask the respondents to comply with the conditions of the contract. 4. The respondents have produced the copies of the said drafts as per Annexures – ‘R-9’ and ‘R-10’. In effect, the respondents deny that they have entered into an agreement as per Annexure – ‘A’ and consequently, the petitioner cannot ask the respondents to comply with the conditions of the contract. 4. Since the respondents denied the signature of respondent No.2 found in the agreement in question, this Court thought it fit to record the evidence of the parties and their witnesses, if any, on the question of genuineness of the signatures found in the agreement in question. Accordingly, the petitioner, as well as respondents have adduced evidence. Two witnesses are examined on behalf of the petitioner and three witnesses are examined on behalf of the respondents. PW-1 is Mr. Niranjan Tolia, the Director of the petitioner-Company. PW-2 is Mr. Deepak Jain, a handwriting and finger print expert. DW-1 is Mr. Guruvaiah respondent No.2 herein. He is the Managing Director and Chairman of the 1st respondent-company. DW-2 is Mr. Naveen Kumar. He is the Manager of 1st respondent-company. DW-3 Mr. Rafeeulla Baig, is a handwriting expert. Both the parties have got marked their respective documents in support of their case. 5. As aforementioned, the respondent No.2 has denied his signature in Annexure – ‘A’ which is marked as Ex.P-1 during the course of evidence. In view of the same, the main question that arises for consideration by this Court is, “whether the agreement dated 23.10.2005 has been executed by Mr. Guruvaiah or not?” In this regard, it is relevant to note certain admitted facts. The petitioner has paid an advance amount of Rs.10,13,50,000/- which has been received by the contesting respondents. This has been admitted by RW-1 in his deposition. Initially, Rs.50 lakhs was paid to the respondents and on the date of the agreement, an additional amount of Rs.50 lakhs was paid. The balance amount was paid subsequent to the agreement. 6. The agreement dated 23.10.2005 (Annexure-‘A’) is marked at Ex.P-1. In the said agreement, the seal of respondent No.1-company is affixed. The signatures of Chairman/Managing Director is found in Ex.P-1. As aforementioned, respondent No.2 – Guruvaiah had denied his signatures. There are admitted signatures of Mr. Guruvaiah on record. The balance amount was paid subsequent to the agreement. 6. The agreement dated 23.10.2005 (Annexure-‘A’) is marked at Ex.P-1. In the said agreement, the seal of respondent No.1-company is affixed. The signatures of Chairman/Managing Director is found in Ex.P-1. As aforementioned, respondent No.2 – Guruvaiah had denied his signatures. There are admitted signatures of Mr. Guruvaiah on record. They are found in registered Sale Deed dated 10.3.2006 (Ex.P-2) and also in Ex.P-7 – the letter dated 3.3.2006 Guruvaiah has admitted the Sale Deed Ex.P.2 and the letter dated 3.3.2006 Ex.P-7. Consequently, he admits the signatures found on those two documents. 7. However, as aforementioned, both the parties have led the evidence of the experts i.e., PW-2 and DW-3. The competency of PW-2 as a handwriting expert is not challenged. PW-2 has given his detailed report which is marked at Ex.P-11. He has come to a definite conclusion that the signatures found in Ex.P1 are that of Guruvaiah. Though he was cross-examined extensively, he stood the test of cross examination. PW-2 has deposed that he did not observe any fundamental divergence between the admitted and disputed signatures. However, he has noticed natural variations in the admitted and disputed signatures. The person cannot write or sign in a mechanical manner. There are bound to be natural variations. Even if several writings are made at a given point of time, it would contain natural variations. Nothing is brought out in the cross-examination of PW-2 so as to disbelieve his evidence. However, the same cannot be said in respect of evidence of DW-3. The respondents have examined DW-3 – Rafeeulla Baig as an handwriting expert. The DW-3 opined that the signatures found in Ex.P-1 do not tally with the signatures found in the admitted documents. In other words, DW-3 has opined that Guruvaiah has not signed Ex.P-1. Extensive cross-examination of DW-3 is made to show that DW-3 – Rafeeulla Baig is not a hand writing expert, but is a Graphologist. It is admitted by DW-3 that graphology is the analysis and interpretation of handwriting as a means of indepth psychological and personality investment. In the cross-examination, he further admits that his handwriting institute is a Graphology Training Institute and has been so stated in his Web Site. It is admitted by DW-3 that graphology is the analysis and interpretation of handwriting as a means of indepth psychological and personality investment. In the cross-examination, he further admits that his handwriting institute is a Graphology Training Institute and has been so stated in his Web Site. He further deposes that he has done only home study course on handwriting analysis and grapho analysis and that the material for the study was sent to his house. It is curious to note here itself that DW-3 initially gave a report which is short one running to half a page. Only after PW-2 was examined and his report was filed, DW-3 gave a longer version of his report. These facts reveal that all is not well with the report of DW-3. If the evidence of PW-2 is looked into with the evidence of DW-3, one can conclude that the evidence of PW-2 is natural and his report is believable and acceptable, whereas, the report of DW-3 appears to be doubtful. DW-3 has deposed that the fundamental difference between two signatures of Guruvaiah was identified based on the dot below the underscoring and the slant with curve just above the signature. 8. Section 73 of the Indian Evidence Act, 1872, vests the power to compare the disputed handwriting/signature with the admitted handwriting/signature. But, the Court will exercise such power only in an exceptional circumstances. The Court can play the role of expert if neither party calls an expert or handwriting expert is not available. In such a case, the Court cannot, but, act under Section 73 of the Indian Evidence Act. Comparison by the Court is permissible to appreciate the evidence tendered to prove the handwriting/signature. The Supreme Court in the case of State vs. Pali Ram ( AIR 1979 SC 14 ) has observed thus: “The matter can be viewed from another angle also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefor, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other : and the prudent course is to obtain the opinion and assistance of an expert.” Almost the same observations are made by the Supreme Court in the case of Ajit Savant Majagvai – vs. state of Karnataka ( 1997 (7) SCC 110 ) and in the case of O. Bharathan vs. K. Sudhakaran ( 1996 (2) SCC 704 ). In the case of Thiruvengada Pillai vs. Navaneethammal & Another ( AIR 2008 SC 1541 ), the Apex Court has observed thus: “As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But his does not mean that the Court has not the power to compare the dispute signature with the admitted signature as this power is clearly available under Section 73 of the Act.” Keeping in mind the above mentioned observations of the Apex Court, earlier learned designated Judge seems to have directed the parties to lead evidence on the question relating to forgery/fabrication of the signature found in Ex.P-1. But two different versions, that too, conflicting are forthcoming from PW-2 and DW-3 who claim to be the experts in the field. In this view of the matter, this Court is constrained to compare the disputed signatures found in Ex.P-1 with the admitted signatures. Accordingly, I have carefully compared the disputed signatures with admitted signatures. On comparing, I find that there is no significant or marked difference between the admitted signatures and the disputed signatures. I find that the line quality in the disputed signature is clear cut and there is normal writing movement. I also find freedom, smoothness, fluency and rhythm in the disputed and also in the admitted signatures. I do not find any slow, speed or drawn movement in the disputed signature. I also do not find there is any lifting of pen, stopping of pen and hesitation in writing. Of course, the dot below the underscoring and the slant above the signature found in the admitted signatures are missing in disputed signature. I do not find any slow, speed or drawn movement in the disputed signature. I also do not find there is any lifting of pen, stopping of pen and hesitation in writing. Of course, the dot below the underscoring and the slant above the signature found in the admitted signatures are missing in disputed signature. Some of the signatures are having six arcades or seven arcades. These minor variations may be natural. They appear to be natural variations which have happened during the course of signature by the very person who has made the disputed signature. However there is no re-touching or overwriting or patch ups in the disputed signature. Hence, I hold the signatures found in Ex.P1 tally with the signatures of Guruvaiah found in Exs.P-2 to P-7. 9. This Court on considering the reports of both the witnesses, i.e. PW.2 and DW.3 prefers to accept the report of PW-2 for the aforementioned reasons. Even otherwise, this Court on comparison of the admitted and disputed signatures, has come to its own conclusion that the disputed signatures tally with admitted signatures in all material particulars. In view of the same, it cannot be said that the agreement between the parties does not exist and that the same is fabricated. 10. As aforementioned, it is further contention of the respondent No.2 that he has received Rs.10,13,50,000/- towards raising contract, in respect of which, the drafts were prepared. The copies of such drafts are produced at Annexures – ‘R-9’ and ‘R-10’. These drafts do not bar the signatures of either of the parties. Therefore, the drafts cannot be looked into for the purpose of this CMP. That apart, it is unthinkable that one would pay advance amount of Rs.10,13,50,000/- without signing the agreement. It would be against a normal human conduct to pay such a huge sum without any agreement. According to the respondents, Rs.10,13,50,000/- was paid by the petitioner towards raising contract and it was an advance paid by the petitioner. This plea on the face of it is untenable. If the story of respondent No.1 is to be believed, then, the respondents must have an iron ore mine, in respect of which the petitioner was to be the raising contractor. Admittedly, the respondent No.2 did not own mine and therefore, the question of petitioner being the raising contractor does not arise. If the story of respondent No.1 is to be believed, then, the respondents must have an iron ore mine, in respect of which the petitioner was to be the raising contractor. Admittedly, the respondent No.2 did not own mine and therefore, the question of petitioner being the raising contractor does not arise. The aforementioned amount of Rs.10,13,50,000/- was paid from October 2005 till March 2006 in several installments. The 1st respondent i.e., M/s. Srinivasa Minerals and Traders Ltd., neither owns a mining land or a patta land. Respondent No.2 – Guruvaiah became partner of M/s. Siddheswara International, which owned iron ore mines, only on 26.6.2006. Therefore, there could not have been the raising contract entered into between the parties in respect of the mine which did not belong to Guruvaiah and of which firm Guruvaiah became partner after three months after the entire payments were made. In the 2nd line of first paragraph of the draft of raising contract – Annexure – ‘R-10’, it is stated that Guruvaiah will honour all the commitments for supply which he had made prior to the said raising contract. Which means, that prior to the said draft relating to raising contract dated 10.3.2006, there was commitment on the part of the respondents to supply iron ore to the petitioner. This aspect of the mater has remained unanswered by the respondents. 11. The 2nd respondent-Guruvaiah has written a letter dated 3.3.2006 to the petitioner. The copy of the same is found in the paper book. The said letter reveals that respondents have issued transport permits for 20,000 tonnes and has promised to issue another permit for another 20,000 tonnes in the succeeding week. If the petitioner were to be the raising contractor and that there was no contract for supply of iron ore by the respondents to the petitioner, the said letter would not have been written and the transport permit would not have been given. This letter and the transport permit prima facie reveal that there was a commitment on the part of the respondents to supply iron ore which is as per the contract agreement Ex.P-1. The said letter also acknowledges the receipt of the money by the respondents. The respondents rely upon the drafts of the raising contracts. Even the draft agreements contain the arbitration clause. The said letter also acknowledges the receipt of the money by the respondents. The respondents rely upon the drafts of the raising contracts. Even the draft agreements contain the arbitration clause. Thus, it is clear that the agreement – Annexure – ‘A’, as well as, the draft agreements Annexures – ‘R-9’ and ‘R-10’ contain the arbitration clause. 12. It is further submitted by the learned counsel appearing for the respondents that the suit in O.S.No.17188/2006 is filed by the respondents before the jurisdictional Civil Court for declaration that the agreement dated 23.10.2005 (Annexure – ‘A’) is not genuine, but is fabricated and forged. In the said suit, the very issue relating to forgery/fabrication of the document is raised and that therefore, this Court may dismiss the Civil Miscellaneous Petition which is based on the forged document. Such contention cannot be accepted for the simple reason that the suit is filed after the issuance of notice by the petitioner under the provisions of the Arbitration and Conciliation Act. As is clear from Section 21 of the Arbitration Act, the arbitration proceedings will commence from the date of issuance of notice. The notice was issued by the petitioner invoking the arbitration clause on 31.10.2006 under Section 9 of the Arbitration Act. The suit is filed by the respondents on 13.11.2006 i.e., subsequent to the notice issued under Section 9 of the Arbitration Act by the petitioner. As aforementioned, this Court in order to satisfy about the validity of the agreement, proceeded to record the evidence. Both the parties adduced evidence, both oral and documentary. Both the parties have fully participated in the proceedings. As has been held by the Apex Court in the case of National Insurance Company Limited vs. Boghara Polyfab Private Limited ( 2009 (1) SCC 267 ), this Court exercising jurisdiction under Section 11 of the Arbitration Act, may choose to decide the question of forgery etc., In Paragraph-23 of the said judgment, it is observed thus: “Para-23: It is clear from the scheme of the Act as explained by this Court in SBP & Co., that in regard to issues falling under the second category, if raised in any application under Section 11 of the Act, the Chief Justice/his designate may decide them, if necessary, by taking evidence. Alternatively, he may leave those issues open with a direction to the Arbitral Tribunal to decide the same. Alternatively, he may leave those issues open with a direction to the Arbitral Tribunal to decide the same. If the Chief Justice or his designate chooses to examine the issue and decides it, the Arbitral Tribunal cannot re-examine the same issue. The Chief Justice/his designate will, in choosing whether he will decide such issue or leave it to the Arbitral Tribunal, be guided by the object of the Act (that is expediting the arbitration process with minimum judicial intervention). Where allegations of forgery/fabrication are made in regard to the document recording discharge of contract by full and final settlement, if would be appropriate if the Chief Justice/his designate decides the issue.” (Emphasis supplied) The evidence is let in by both the parties on the question of validity of the agreement and the genuineness of the signatures found in the agreement in question. Hence, it is not open for either of the parties to pray for staying the proceedings in CMP till the suit is disposed of. As the parties have adduced evidence on the aforementioned aspect, there is no embargo for this Court to entertain the CMP and decide the question relating to forgery/fabrication of the agreement in question. 13. In view of the aforementioned facts and circumstances of the case, this Court is of the opinion that agreement is entered into between the parties as per Annexure – ‘A’ on 23.10.2005. The said agreement contains the arbitration clause. The disputes have arisen between the parties which are not resolved. The notice is issued by the petitioner invoking the arbitration clause. The respondents have not agreed for appointment of an Arbitrator. Hence, this is a fit case to appoint an Arbitrator as per the arbitration clause found in the agreement. Accordingly, the following order is made: Justice R. Gururajan, “Sri Hari Krupa”, No.504, 5th Floor, Sri Chitrapur Housing Cooperative Society Ltd., 15th Cross, Malleshwaram, Bangalore-03, is appointed as a sole Arbitrator to decide the dispute between the parties. The learned Arbitrator on receipt of the copy of this order, shall enter upon reference, issue notice to the parties and then proceed to resolve the dispute in accordance with the provisions of Arbitration and Conciliation Act, 1996. Office is directed to send a copy of this order to the learned Arbitrator forthwith. The learned Arbitrator on receipt of the copy of this order, shall enter upon reference, issue notice to the parties and then proceed to resolve the dispute in accordance with the provisions of Arbitration and Conciliation Act, 1996. Office is directed to send a copy of this order to the learned Arbitrator forthwith. Office is directed to return all the original papers filed, if any, along with the petition to the petitioner to enable the petitioner to produce before the learned Arbitrator. Petition is allowed accordingly.