Judgment Sanjib Banerjee, J. 1. The primary objection of the respondent to the present request under Section 11 of the Arbitration and Conciliation Act, 1996 is that there is no arbitration agreement between the parties. The lesser challenge is that the invocation of the alleged arbitration agreement is premature since no attempt was made at reconciling the disputes. The arbitration clause that the petitioner relies on is contained in an agreement of August 25, 2009. The clause provides as follows: “8. Resolution of disputes: Any dispute arising out of this Agreement shall be settled by mutual discussions between the Managing Directors of the Companies whose decision shall be accepted by the Parties. If the dispute is not resolved by mutual discussion then the Agreement will be governed by the Arbitration Act, 1996.” The substance of the respondent’s submission is that the clause does not speak of any arbitration or of the finality of any decision in an arbitral reference. The respondent says that the relevant clause does not indicate the intention of the parties to have their disputes resolved by arbitration. The respondent also suggests that since the petitioner made no attempt to have the disputes reconciled by the managing directors of the two companies, the petitioner was not entitled to invoke the so-called arbitration agreement. The petitioner refers to the respondent’s contemporaneous conduct and submits that the case made out at the bar is at variance with the respondent’s understanding of the clause. The petitioner first refers to two letters issued by the respondent on November 22, 2011 and on January 11, 2012. In the first of the letters, there is a categorical admission of the existence of the arbitration agreement in the opening paragraph thereof: “We are in receipt of your letter under reference nominating Er. Arun Samanta as your nominee Arbitrator. Be it stated that your nomination as aforementioned is prematured and untenable in terms of the arbitration agreement between the parties.” In the other letter, the respondent repeated that the petitioner’s nomination of an arbitrator was premature. The petitioner also places paragraph 45 of the affidavit filed by the respondent in the present proceedings: “45. With reference to paragraph no.10 of the petition, the Respondent submits that the contents of this paragraph are matters of record. The petitioner also places paragraph 45 of the affidavit filed by the respondent in the present proceedings: “45. With reference to paragraph no.10 of the petition, the Respondent submits that the contents of this paragraph are matters of record. The Respondents further submits that Petitioner’s nomination of arbitrator was pre-matured, since the relevant provision of contract which is reproduced hereunder stipulates that any dispute arising out of the agreement should be settled by mutual discussions between the parties at the first instance and in the event the dispute is not resolved by such mutual discussions, the dispute can be resolved through arbitration governed by the Arbitration and Conciliation Act, 1996.” In view of the stand taken on affidavit by the respondent, the point should not have been urged at the bar. However, several authorities have been cited by the respondent in support of the contention that there is no arbitration agreement between the parties, notwithstanding the categorical acceptance of the arbitration agreement in the affidavit. Indeed, the respondent did not deny the existence of the arbitration agreement in course of the letters addressed to the petitioner prior to the petitioner carrying the present request to the Chief Justice of this court or his designate. Although it is unnecessary in such context to deal with the argument which runs contrary to the affidavit stand, the authorities cited by the respondent are noticed nonetheless. The petitioner refers to a judgment reported at (2009) 2 SCC 55 (Visa International Ltd v. Continental Resources (USA) Ltd); where the following clause, which runs on similar lines as the clause in the present case, fell for consideration: “Any dispute arising out of this agreement and which cannot be settled amicably shall be finally settled in accordance with the Arbitration and Conciliation Act, 1996.” The Supreme Court opined that if the intention of the parties to have their disputes resolved through arbitration was evident, the absence of the expressions “arbitration” and “arbitrator” would make little difference. The intention of the parties, according to the judgment, is to be gathered from the surrounding circumstances including the conduct of the parties and the evidence such as exchange of correspondence between them. Paragraph 34 of the report is relevant in the context: “34. The intention of the parties, according to the judgment, is to be gathered from the surrounding circumstances including the conduct of the parties and the evidence such as exchange of correspondence between them. Paragraph 34 of the report is relevant in the context: “34. In the present case the parties have agreed that the disputes arising out of the agreement which cannot be settled amicably to the finally settled in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The Act not only provides for the procedure involving appointment of an arbitrator but also comprehensively provides as to jurisdiction of the Arbitral Tribunal and conduct of arbitral proceedings such as determination of rules of procedure, place of arbitration, etc. and for making arbitral award and termination of proceedings. The arbitral award shall be final and binding on the parties and persons claiming under them respectively. The award is enforceable under the Code of Civil Procedure in the same manner as if it was a decree of the court. The parties have thus agreed for the resolution of the disputes making all the provisions of the Arbitration and Conciliation Act, 1996 applicable until the final termination of their disputes arising out of the agreement. The absence of word “reference” may not clinch the issue inasmuch as it is the whole clause providing for the resolution/settlement of the disputes arising out of the agreement and not a word or two is required to be interpreted in order to gather the intention of the parties. The respondent has first placed a judgment reported at (1998) 3 SCC 573 (K.K. Modi v. K.N. Modi) where the relevant clause read, “Implementation will be done in consultation with the financial institutions. For all disputes, clarifications etc. in respect of implementation of this agreement, the same shall be referred to the Chairman, IFCI or his nominees whose decision will be final and bindings on both the groups.” The Supreme Court did not regard the clause to be an arbitration agreement as it lacked the attributes of one. It is evident that more than deciding whether the relevant clause constituted an arbitration agreement, the Supreme Court considered whether the decision rendered by the Chairman, IFCI could be deemed to be an arbitral award. Paragraph 34 of the report makes the position clear: “34. It is evident that more than deciding whether the relevant clause constituted an arbitration agreement, the Supreme Court considered whether the decision rendered by the Chairman, IFCI could be deemed to be an arbitral award. Paragraph 34 of the report makes the position clear: “34. Undoubtedly, in course of correspondence exchanged by various members of groups A and B with the Chairman, IFCI, some of the members have used the words “arbitration” in connection with clause 9. That by itself, however, is not conclusive. The intention of the parties was not to have any judicial determination on the basis of evidence led before the Chairman, IFCI. Now was the Chairman, IFCI required to base his decision only on the material place before him by the parties and their submissions. He was free to make his own inquiries. He had to apply his own mind and used his own expertise for the purpose. He was free to take the help of other experts. He was required to decide the question of valuation and the division of assets as an expert and not as an arbitrator. He has been authorised to nominate another in his place. But the contract indicates that he has to nominate an expert. The fact that submissions were made before the Chairman, IFCI would not turned the decision-making process into an arbitration.” The next judgment cited on behalf of the respondent is one reported at (2003) 7 SCC 418 (Bihar State Mineral Development Corporation v. Encon Builders (I) (P) Ltd). In this case the relevant clause was as follows: “60. In case of any dispute arising out of the agreement, the matter shall be referred to the Managing Director, Bihar State Mineral Development Corporation Ltd, Ranchi, whose decision shall be final and binding.” The Supreme Court did not regard the clause as an arbitration agreement between the parties since it found that it did not incorporate the essential elements that ought to be contained in an arbitration agreement. In the judgment reported at (2007) 5 SCC 719 (Jagdish Chander v. Ramesh Chander) next cited by the respondent, the following clause was touted as an arbitration agreement: “(16). In the judgment reported at (2007) 5 SCC 719 (Jagdish Chander v. Ramesh Chander) next cited by the respondent, the following clause was touted as an arbitration agreement: “(16). If during the continuance of the partnership or at any time afterwards any dispute touching the partnership arises between the partners, the same shall be mutually decided by the partners or shall be referred for arbitration if the parties so determine.” It is clearly understandable why the Supreme Court did not accept the clause to be an arbitration agreement. The clause in that case required the parties to agree or determine whether they wanted to carry their disputes to arbitration. The clause did not indicate any concluded agreement between the parties to carry their disputes to an arbitral reference. None of the cases cited on behalf of the respondent furthers the unnecessary argument made, in the face of the respondent’s contrary stand in the affidavit, that there is no arbitration agreement between the parties. In K.K. Modi what weighed with the Supreme Court was whether there was an arbitral reference that was conducted in terms of the relevant clause. In Encon Builders, where the relevant clause was similar to the first sentence in clause 8 of the agreement between the parties herein, the Supreme Court did not find that the words conveyed any intention of the parties that the relevant managing director would arbitrate upon the disputes between the parties. In Jagdish Chander the clause contemplated a further agreement for the disputes between the parties to be carried to an arbitral reference. The second sentence in clause 8 of the agreement between the parties, undoubtedly, evidences the intention of the parties to carry their unresolved disputes to an arbitral reference to be conducted in accordance with the 1996 Act. Paragraph 45 of the respondent’s affidavit is unequivocal in its admission of the arbitration agreement and, for good measure, the statute has been correctly mentioned therein though the original clause carries a mistaken reference thereto. In none of the letters addressed by the respondent to the petitioner after the petitioner had invoked the arbitration agreement did the respondent deny the existence of the arbitration agreement. In at least two of the letters the respondent claimed that the invocation of the arbitration agreement was premature. Implicit in such assertion was the admission of the arbitration agreement. In none of the letters addressed by the respondent to the petitioner after the petitioner had invoked the arbitration agreement did the respondent deny the existence of the arbitration agreement. In at least two of the letters the respondent claimed that the invocation of the arbitration agreement was premature. Implicit in such assertion was the admission of the arbitration agreement. The first limb of clause 8 of the agreement between the parties herein requires the parties to attempt a reconciliation of the disputes. It is evident that the petitioner responded to the respondent’s offer of reconciliation, but since nothing came of it the petitioner insisted on the appointment of an arbitrator by its electronic mail message of January 9, 2012. It is also apparent from the tenor of the respondent’s letters that the respondent was not keen to go to an arbitral reference. Since the arbitration agreement stands admitted and there are live disputes between the parties, the petitioner is entitled to the reference that it seeks. Accordingly, AP No. 64 of 2012 is directed to be placed before the Hon’ble the Chief Justice for constituting an arbitral tribunal in accordance with the arbitration agreement between the parties to adjudicate upon the disputes covered thereby. The respondent will pay costs assessed at 600 GM for unnecessarily urging a point that is contrary to its affidavit stand.