JUDGMENT K.S. Jhaveri, J. 1. By way of this arbitration proceeding under Section 11 of the Arbitration and Conciliation Act, 1996, the petitioner has prayed for a direction to appoint an arbitrator to settle the dispute between the petitioner and the opposite party. 2. We have heard Mr. M. Panda, learned counsel for the petitioner and Mr. S.K. Pattnaik, learned Senior Counsel for the opposite party. 3. The fact of the case is that the petitioner has sought for a direction for appointment of arbitrator in view of Clause 16.3 of the agreement, entered into between the parties, which reads as under: "16.3 ARBITRATION (a) Arbitrators In the event the dispute or difference or claim, as the case may be, is not resolved as evidence by the signing of the written terms of settlement by the Parties, within 30 (thirty) days of reference for amicable settlement and/or settlement with the assistance of Expert, as the case may be, the same shall be finally settled by binding arbitration under the Arbitration and Conciliation Act, 1996. The arbitration shall be by a panel of three arbitrators, one each to be appointed by the Grantor and the Concessionaire and the third to be appointed by the two arbitrators so appointed, who shall act as chairperson of the arbitral tribunal" 4. The contention of learned counsel for the petitioner is that the Government of Odisha, in the Department of Transport, invited proposal on 14.12.2009 for development of Baramunda Bus Terminal along with commercial facilities at various locations in Odisha including Bhubaneswar on Private Partnership mode on BOT basis. In response to the said proposal, the petitioner-company submitted its bid of Rs. 56,00,00,000/- (Rupees Fifty-six Crores) towards concession fee as premium to be payable to the opposite party. After completion of all formalities, an agreement was entered into between the parties to execute the work. However, the same was the subject matter of the public interest litigation i.e. W.P.(c) No. 30961 of 2011, wherein the agreement was declared null and void by order dated 20.12.2012. However, in the meantime, the petitioner was already issued with letter of award dated 26th July, 2010 by the Department of Commerce and Transport and ultimately the litigation was ended, after the SLP was dismissed by the Hon'ble Supreme Court. 5. However, in the meantime, the petitioner was already issued with letter of award dated 26th July, 2010 by the Department of Commerce and Transport and ultimately the litigation was ended, after the SLP was dismissed by the Hon'ble Supreme Court. 5. Learned counsel for the petitioner has mainly relied upon the decision of the Hon'ble Supreme Court rendered in the case of Mayavati Trading Private Limited vs. Pradyuat Deb Burman, reported in (2019) 8 SCC 714 : 2019 (II) OLR (SC) 722, more particularly, Paras-10 and 11, whereof read as under: "10. This being the position, it is clear that the law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment as Section 11(6-A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment Duro Felguera, S.A. (supra) - see paras 48 & 59. 11. We, therefore, overrule the judgment in United India Insurance Company Limited (supra) as not having laid down the correct law but dismiss this appeal for the reason given in para 3 above." 5.1. Learned, counsel for the petitioner has also relied upon Section 11(6-A) of the Arbitration and Conciliation Act, 1996 which was amended w.e.f. 23.10.2015 and prayed for appointment of arbitrator. For better appreciation, Section 11 (6-A) is reproduced hereunder: "11. Appointment of arbitrators.-- XX XX XX (6-A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement." 6. Mr. S.K. Pattnaik, learned Senior Counsel for the opposite party has vehemently argued and stated that the petition is not maintainable in view of order dated 20.12.2012 passed by this Court in W.P.(C) No. 30961 of 2011, wherein the opposite party-OSTRC was a party, and ultimately the agreement in question was declared null and void. 6.1. Mr. S.K. Pattnaik, learned Senior Counsel for the opposite party has vehemently argued and stated that the petition is not maintainable in view of order dated 20.12.2012 passed by this Court in W.P.(C) No. 30961 of 2011, wherein the opposite party-OSTRC was a party, and ultimately the agreement in question was declared null and void. 6.1. He further submitted that in view of the judgments, of the Hon'ble Supreme Court the entire agreement under Annexure-1 is void ab initio as the authority signed in the agreement was not competent to sign the same inasmuch as the agreement is opposed to public policy within the meaning of Section 23 of the Contract Act. Therefore, the entire agreement is rendered non est in the eye of law and the arbitration clause also does not survive. Therefore, the present arbitration petition under Section 11(6) of the Act is not maintainable inasmuch as the agreement being declared void ab initio by this Hon'ble Court in judgment dated 20.12.2012 passed in W.P.(C) No. 30961 of 2011. Thus, the claim of the petitioner for arbitration, raised after three years, which was received on 15.03.2016 is barred by limitation. 7. It is submitted that Section 16 of the Act provides that the Arbitral Tribunal may rule on its own jurisdiction, including ruling on any objection with respect to existence and validity of the arbitration agreement and an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. This occasionally arises only when the parties refer to the dispute to arbitration or the Court will refer the dispute to arbitration under Section 11 of the Act. 7.1. But while referring the dispute to arbitration, it is the duty of the Court to see if there is a contract in existence An agreement enforceable in law is a contract. If an agreement is void ab initio, the High Court should refuse to refer to the arbitrator 7.2. In the present case, this Hon'ble Court by judgment dated 20.12.2012 under an Annexure-2 has declared the agreement as void ab initio on various grounds. That judgment has become final and binding on both the parties and on all concerned being a judgment in rem. In the present case, this Hon'ble Court by judgment dated 20.12.2012 under an Annexure-2 has declared the agreement as void ab initio on various grounds. That judgment has become final and binding on both the parties and on all concerned being a judgment in rem. No further exercise is required to be done by this Hon'ble Court to find out if the arbitration clause survives when the main agreement is ab initio void and there is no valid contract. 7.3. He also submitted that Section 11 (6-A) of the Act also mandates that the High Court has to decide if there is an arbitration agreement in existence before exercising the power under sub-section (6) of Section 11 of the Act. He, however, submitted that the decisions relied upon by the petitioner have been distinguished by the Hon'ble Supreme Court in different judgments. 8. It is further submitted that in the present case in hand, a Division Bench of this Court has decided that the agreement dated 16.03.2011 (Annexure-1) is void ab initio on the following grounds: (a) Lack of competence to execute the deed in view of Article 299 of the Constitution of India. (b) The agreement was contrary to the public policy and thus void in view of Section 23 of the Contract Act. (c) The agreement was not properly stamped, nor registered thereby violated the provisions of the Indian Stamp Act, Transfer of Property Act and the Registration Act. Therefore, the agreement is not a contract in the eye of law and thus, not enforceable in law. So, the arbitration clause does not survive and this application under Section 11(6) of the Act is liable to be rejected. 9. Mr. Pattnaik, learned Senior Counsel has further submitted that the law is well settled, if the main agreement is void ab initio, the arbitration clause does not survive. In support of the argument, he relied upon the following decisions: (i) In the case of Union of India vs. Kishorilal Gupta and Bros., reported in AIR 1959 SC 1362 , the Hon'ble Supreme Court, in paras-9 and 10, has-held as under: "9. In support of the argument, he relied upon the following decisions: (i) In the case of Union of India vs. Kishorilal Gupta and Bros., reported in AIR 1959 SC 1362 , the Hon'ble Supreme Court, in paras-9 and 10, has-held as under: "9. We shall now notice some of the authoritative statements in the text-books and a few of the cases bearing on the question raised: In Chitty on Contract, 21st Edn., the scope of an arbitration clause is stated thus, at p. 322: "So that the law must be now taken to be that when an arbitration clause is unqualified such a clause will apply even if the dispute involve an assertion that circumstances had arisen whether before or after the contract had been partly performed which have the effect of discharging one or both parties from liability, e.g., repudiation by one party accepted by the other, or frustration." In "Russel on Arbitration", 16th Edn., p. 63, the following test is laid down to ascertain whether an arbitration clause survives after the contract is determined: "The test in such cases has been said to be whether the contract is determined by something outside itself, in which case the arbitration clause is determined with it, or by something arising out of the contract, in which case the arbitration clause, remains effective and can be enforced." The Judicial Committee in Hirji Mulji v. Cheong Yue Steamship Company gives another test at p. 502. "That a person before whom a complaint is brought cannot invest himself with arbitral jurisdiction to decide it is plain. His authority depends on the existence of some submission to him by the parties of the subject matter of the complaint. For this purpose a contract that has determined is in the same position as one that has never been concluded at all. It founds no jurisdiction." A very interesting discussion on the scope of an arbitration clause in the context of a dispute arising on the question of repudiation of a contract is found in the decision of the House of Lords in Heyman v. Darwine Ltd. There a contract was repudiated by one party and accepted as such by the other. The dispute arose in regard to damages under a number of heads covered by the contract. The dispute arose in regard to damages under a number of heads covered by the contract. The arbitration clause provided that any dispute between the parties in respect of the agreement or any of the provisions contained therein or anything arising thereout should be referred to arbitration. The House of Lords held that the dispute was one within the arbitration clause. In the speeches of the Law Lords a wider question is discussed and some of the relevant principles have been succinctly stated. Viscount Simon L.C. observed at p. 343 thus: "An arbitration clause is a written submission, agreed to by the parties to the contract, and, like other written submissions to arbitration, must be construed according to its language and in the light of the circumstances in which it is made. If the dispute is as to whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for example, the making of such a contract is illegal), the arbitration clause cannot operate, for on this view the clause itself is also void. If, however, the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them as to whether there has been a breach by one side or the other, or as to whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen "in respect of", or" with regard to ", or" under" the contract, and an arbitration clause which uses these, or similar, expressions, should be construed accordingly. By the law of England (though not, as I understand, by the law of Scotland) such an arbitration clause would also confer authority to assess damages for breach even though it does not confer upon the arbitral body express power to do so. I do not agree that an arbitration clause expressed in such terms as above ceases to have any possible application merely because the contract has "come to an end", as, for example, by frustration. I do not agree that an arbitration clause expressed in such terms as above ceases to have any possible application merely because the contract has "come to an end", as, for example, by frustration. In such cases it is the performance of the contract that has come to an end." The learned Law Lord commented on the view expressed by Lord Dunedin at p. 344 thus. "The reasoning of Lord Dunedin applies equally to both cases. It is, in my opinion, fallacious to say that, because the contract has "come to an end" before performance begins, the situation, so far as the arbitration clause is concerned, is the same as though the contract had never been made. In such case a binding contract was entered into, with a valid submission to arbitration contained in its arbitration clause, and, unless-the language of the arbitration clause is such as to exclude its application until performance has begun, there seems no reason why, the arbitrator's jurisdiction should not cover the one case as much as the other." Lord Macmiilan made similar observations at p. 345: "If it appears that the dispute is as to whether, there has ever been a binding contract between the parties, such a dispute cannot be covered by an arbitration clause in the challenged contract. If there has, never been a contract at all, there has never been as part of it an agreement to arbitrate; the greater includes the less. Further, a claim to set aside a contract on such grounds as fraud, duress or essential error cannot be the subject matter of a reference under an arbitration clause in the contract sought to be set aside. Again, an admittedly binding contract containing a general arbitration clause may stipulate that in certain events the contract shall come to an end. If a question arises whether the contract has for any such reason come to an end, I can see no reason why the arbitrator should not decide that question. It is clear, too, that the parties to a contract may agree to bring it to an end to all intents and purposes and to treat it as if it had never existed. In such a case, if there be an arbitration clause in the contract, it perishes with the contract. It is clear, too, that the parties to a contract may agree to bring it to an end to all intents and purposes and to treat it as if it had never existed. In such a case, if there be an arbitration clause in the contract, it perishes with the contract. If the parties substitute a new contract for the contract which they have abrogated, the arbitration clause in the abrogated contract cannot be invoked for the determination of questions under the new agreement. All this is more or less elementary." These observations throw considerable light on the question whether an arbitration clause can be invoked in the case of a dispute under a superseded contract. The principle is obvious; if the contract is superseded by another, the arbitration clause, being a component part of the earlier contract, falls with it. The learned Law Lord pinpoints the principle underlying his conclusion at p. 347: "I am accordingly of opinion that what is commonly called repudiation or total breach of a contract, whether acquiesced in by the other party or not, does not abrogate a contract, though it may relieve the injured party of the duty of further fulfilling the obligations which he has by a contract undertaken to the repudiating party. The contract is not put out of existence, though all further performance of the obligations undertaken by each party in favour of the, other may cease It survives for the purpose of measuring the claims arising out of the breach, and the arbitration clause survives for determining the mode of their settlement. The purposes of the contract have failed, but the arbitration clause is not one of the purposes of the contract." Lord Wright, after explaining the scope of the word "repudiation" and the different meanings its bears, proceeded to state at p. 350: "In such a case, if the repudiation is wrongful and the rescission is rightful, the contract is ended by the rescission; but only as far as concerns future performance. It remains alive for the awarding of damages, either for previous breaches, or for the breach which constitutes the repudiation. It remains alive for the awarding of damages, either for previous breaches, or for the breach which constitutes the repudiation. That is only a particular form of contract breaking and would generally, under an ordinary arbitration clause, involve a dispute under the contract like any other breach of contract." This decision is not directly in point; but the principles laid down therein are of wider application than the actual decision involved. If an arbitration clause is couched in widest terms as in the present case, the dispute, whether there is frustration or repudiation of the contract, will be covered by it. It is not because the arbitration clause survives, but because, though such repudiation ends the liability of the parties to perform the contract, it does not put an end to their liability to pay damages for any breach of the contract. The contract is still in existence for certain purposes. But where the dispute is whether the said contract is void ab initio, the arbitration clause cannot operate on those disputes, for its operative force depends upon the existence of the contract and its validity. So too, if the dispute is whether the contract is wholly superseded or not by a new contract between the parties, such a dispute must fall outside the arbitration clause, for, if it is superseded, the arbitration clause falls with it. The argument, therefore, that the legal position is the same whether the dispute is in respect of repudiation or frustration or novation is not borne out by these decisions. An equally illuminating judgment of Das, J., as he then was, in Tolaram Nathmull v. Birla Jute Manufacturing Co. Ltd. is strongly relied upon by the learned Counsel for the appellant. There the question was whether an arbitration clause which was expressed in wide terms would take in a dispute raised in that case. It was contended on one side that the contract was void ab into and on the other side that, even on the allegations in the plaint, the contract was not ab initio void. The learned Judge, on the facts of that case, held that no case had been made out for staying the suit and therefore dismissed the application filed by the defendant for stay of the suit. The learned Judge exhaustively considered the case-law oil the subject and deduced the principles and enumerated them at p. 187. The learned Judge, on the facts of that case, held that no case had been made out for staying the suit and therefore dismissed the application filed by the defendant for stay of the suit. The learned Judge exhaustively considered the case-law oil the subject and deduced the principles and enumerated them at p. 187. The learned Judge was not called upon to decide the present question, namely, whether an arbitration clause survived in spite of substitution of the earlier contract containing the arbitration clause by a fresh one, and therefore we do not think that it is necessary to express our opinion on the principles culled out and enumerated in that decision. 10. The following principles relevant to the present case emerge from the aforesaid discussion: (1) An arbitration clause is a collateral term of a contract as distinguished from its substantive terms; but none the less it is an integral part of it; (2) however comprehensive the terms of an arbitration clause may be, the existence of the contract is a necessary condition for its operation; it perishes with the contract; (3) the contract may be non est in the sense that it never came legally into existence or it was void ab initio; (4) though the contract was validly executed, the parties may put an end to it as if it had never existed and substitute a new contract for it solely governing their rights and liabilities thereunder; (5) in the former case, if the original contract has no legal existence the arbitration clause also cannot operate, for along with the original contract, it is also void; in the latter case, as the original contract is extinguished by the substituted one, the arbitration clause of the original contract perishes with it; and (6) between the two falls many categories of disputes in connection with a contract, such as the question of repudiation, frustration, breach etc. In those cases it is the performance of the contract that has come to an end, but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. In those cases it is the performance of the contract that has come to an end, but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. As the contract subsists for certain purposes, the arbitration clause operates in respect of these purposes." (ii) In the case of Damodar Vally Corporation vs. K.K. Kar, reported in AIR 1974 SC 158 , Kishorilal Gupta (supra) has been followed by the Hon'ble Supreme Court. (iii) In the case of Branch Manager, M/s. Magma Leasing & Finance Ltd. & Anr. vs. Potlury Madhavilata & Anr., reported in AIR 2010 SC 488 : (2009) 10 SCC 103 , the Hon'ble Supreme Court has held as under: "10. xx xx xx This decision is not directly in point; but the principles laid down therein are of wider application than the actual decision involved. If an arbitration clause is couched in widest terms as in the present case, the dispute, whether there is frustration or repudiation of the contract, will be covered by it. It is not because the arbitration clause survives, but because, though such repudiation ends the liability of the parties to perform the contract, it does not put an end to their liability to pay damages for any breach of the contract. The contract is still in existence for certain purposes. But where the dispute is whether the said contract is void ab initio, the arbitration clause cannot operate on those disputes, for its operative force depends upon the existence of the contract and its validity. So too, if the dispute is whether the contract is wholly superseded or not by a new contract between the parties, such a dispute must fall outside the arbitration clause, for, if it is superseded, the arbitration clause falls with it." (iv) The Hon'ble Supreme Court in the case of Swiss Timing Ltd. vs. Organizing Committee, Commonwealth Games, 2010, Delhi, reported in AIR 2014 SC 3723 , in para-27, has held as under: "27. I am of the opinion that whenever a plea is taken to avoid arbitration on the ground that the underlying contract is void, the Court is required to ascertain the true nature of the defence. Often, the terms "void" and "voidable" are confused and used loosely and interchangeably with each other. I am of the opinion that whenever a plea is taken to avoid arbitration on the ground that the underlying contract is void, the Court is required to ascertain the true nature of the defence. Often, the terms "void" and "voidable" are confused and used loosely and interchangeably with each other. Therefore, the Court ought to examine the plea by keeping in mind the relevant statutory provisions in the Indian Contract Act, 1872, defining the terms "void" and "voidable". Section 2, the interpretation clause defines some of the relevant terms as follows:- "2(g) An agreement not enforceable by law is said to be void; 2(h) An agreement enforceable by law is a contract; 2(i) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract; 2(j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable." The aforesaid clauses clearly delineate and differentiate between term "void" and "voidable". Section 2(j) clearly provides as to when a voidable contract would reach the stage of being void. Undoubtedly, in cases, where the Court can come to a conclusion that the contract is void without receiving any evidence, it would be justified in declining reference to arbitration but such cases would be few and isolated. These would be cases where the Court can readily conclude that the contract is void upon a meaningful reading of the contract document itself. Some examples of where a contract may fall in this category would be :- (a) Where a contract is entered into by a person, who has not attained the age of majority (Section 11); (b) Where both the parties are under a mistake as to a matter of fact essential to the agreement (Section 19); (c) Where the consideration or object of the contract is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law or where the object of the contract is to indulge in any immoral activity or would be opposed to public policy. Glaring examples of this would be where a contract is entered into between the parties for running a prostitution racket, smuggling drugs, human trafficking and any other activities falling in that category. Glaring examples of this would be where a contract is entered into between the parties for running a prostitution racket, smuggling drugs, human trafficking and any other activities falling in that category. (d) Similarly, Section 30 renders wagering contracts as void. The only exception to this is betting on horse racing. In the circumstances noted above, it may not be necessary for the Court to take any further evidence apart from reading the contract document itself. Therefore, whilst exercising jurisdiction under Section 11(6) of the Arbitration Act, the Court could decline to make a reference to arbitration as the contract would be patently void." (v) Learned Senior Counsel for the opposite party relied upon para-16 of the judgment rendered in Wellington Associates Ltd. vs. Kirti Mehta, reported in AIR 2000 SC 1379 : (2000) 4 SCC 272 , which reads as under: "16. The interpretation put on section 16 by the petitioner's counsel that only the arbitral tribunal can decide about the "existence" of the arbitration clause is not acceptable for other reasons also apart from the result flowing from the use of the word 'may' in section 16. The acceptance of the said contention will, as I shall presently show, create serious problems in practice. As Saville L.J. stated in a speech at Middle Temple Hall on July 8, 1996: "Question of the jurisdiction of the tribunal cannot be left (unless the parties agreed) to the tribunal itself, for that would be a classic case of pulling oneself up by one's own bootstraps". (A practical approach to Arbitration Law, Keren Tweeddale & Andrew Tweeddale, (1999) Blackstone Press Ltd.) (P. 75). Let us take this very case. If indeed clause 5 does not amount to an 'arbitration agreement', it will, in my view, be anomalous to ask the arbitrator to decide the question whether clause 5 is at all an arbitration clause. It is well settled and has been repeatedly held that the source of the jurisdiction of the arbitrator is the arbitration clause, [see Waverly Jute Mills case ( AIR 1963 SC 90 ) above referred to) When that is the position, the arbitrator cannot, in all situations, be the sole authority to decide upon the "existence" of the arbitration clause. Supposing again, the contract between the parties which contained the arbitration clause remained at the stage of negotiation and there was no concluded contract at all. Supposing again, the contract between the parties which contained the arbitration clause remained at the stage of negotiation and there was no concluded contract at all. Then in such a case also, there is no point in appointing an arbitrator and asking him to decide the question as to the existence of the arbitration clause. But, I may point out that there can be some other situations where the question as to the "existence" of an arbitration clause can be decided by the arbitrator. Take a case where the matter has gone to the arbitrator without the intervention of an application under section 11. Obviously, if the question as to the existence of the arbitration clause is raised before the arbitral tribunal, it has power to decide the question. Again in a case where the initial existence of the arbitration clause is not in issue at the time of section 11 application but a point is raised before the arbitral tribunal that the said clause or the contract in which it is contained has ceased to be in force, then in such a case, the arbitrator can decide whether the arbitration clause has ceased to be in force. A question may be raised before the arbitrator that the whole contract including the arbitration clause is void. Now Section 16 of the new Act permits the arbitral tribunal to treat the arbitration clause as an independent clause and section 16 says that the arbitration clause does not perish even if the main contract is declared to be null and void. Keeping these latter and other similar situations apart, I am of the view that in cases where to start with - there is a dispute raised at the stage of the application under section 11 that there is no arbitration clause at all, then it will be absurd to refer the very issue to an arbitrator without deciding whether there is an arbitration clause at all between the parties to start with In my view, in the present situation, the jurisdiction of the Chief Justice of India or his designate to. decide the question as to the 'existence' of the arbitration clause cannot be doubted and cannot be said to be excluded by section 16." (vi) In the case of United India Insurance Co. Ltd. & Anr. vs. Hyundai Engineering and Construction Co. decide the question as to the 'existence' of the arbitration clause cannot be doubted and cannot be said to be excluded by section 16." (vi) In the case of United India Insurance Co. Ltd. & Anr. vs. Hyundai Engineering and Construction Co. Ltd. & Ors., reported in 2018 STPL 9668 SC, the Hon'ble Supreme Court, in para-11, has held as under: "11. The other decision heavily relied upon by the High Court and also by the respondents in Duro Felguera (supra), will be of no avail. Firstly, because it is a two-Judge Bench decision and also because the Court was not called upon to consider the question which arises in the present case, in reference to clause 7 of the subject Insurance Policy. The exposition in this decision is a general observation about the effect of the amended provision and not specific to the issue under consideration. The issue under consideration has been directly dealt with by a three-Judge Bench of this Court in Oriental Insurance Company Limited (supra), following the exposition in Vulcan Insurance Co. Ltd. Vs. Maharaj Singh and Anr., which, again, is a three-Judge Bench decision having construed clause similar to the subject clause 7 of the Insurance Policy. In paragraphs 11 & 12 of Vulcan Insurance Co. Ltd. (supra), the Court answered the issue thus: "11. Although the surveyors in their letter dated April 26, 1963 had raised a dispute as to the amount of any loss or damage alleged to have been suffered by Respondent 1, the appellant at no point of time raised any such dispute. The appellant company in its letter dated July 5 and 29, 1963 repudiated the claim altogether. Under clause 13 the company was not required to mention any reason of rejection of the claim nor did it mention any. But the repudiation of the claim could not amount to the raising of a dispute as to the amount of any loss or damage alleged to have been suffered by Respondent 1. If the rejection of the claim made by the insured be on the ground that he had suffered no loss as a result of the fire or the amount of loss was not to the extent claimed by him, then and then only, a difference could have arisen as to the amount of any loss or damage within the meaning of clause 18. In this case, however, the company repudiated its liability to pay any amount of loss or damage as claimed by Respondent 1. In other words, the dispute raised by the company appertained to its liability to pay any amount of damage whatsoever. In our opinion, therefore, the dispute raised by the appellant company was not covered by the arbitration clause. 12. As per clause 13 on rejection of the claim by the company an action or suit, meaning thereby a legal proceeding which almost invariably in India will be in the nature of a suit, has got to be commenced within three months from the date of such rejection; otherwise, all benefits under the policy stand forfeited. The rejection of the claim may be for the reasons indicated in the first part of clause 13, such as, false declaration, fraud or willful neglect of the claimant or on any other ground disclosed or undisclosed, But as soon as there is a rejection of the claim and not the raising of a dispute as to the amount of any loss or damage, the only remedy open to the claimant is to commence a legal proceeding, namely, a suit, for establishment of the company’s liability. It may well be that after the liability of the company is established in such a suit, for determination of the quantum of the loss or damage, reference to arbitration will have to be resorted to in accordance with clause 18. But the arbitration clause, restricted as it is by the use of the words 'if any difference arises as to the amount of any loss or damage', cannot take within its sweep a dispute as to the liability of the company when it refuses to pay any damage at ail." (emphasis supplied) Again in paragraph 22, after analysing the relevant judicial precedents, the Court concluded as follows: "22. The two lines of cases clearly bear out the two distinct situations in law. A clause like the one in Scott v. Avery bars any action or suit if commenced for determination of a dispute covered by the arbitration clause. The two lines of cases clearly bear out the two distinct situations in law. A clause like the one in Scott v. Avery bars any action or suit if commenced for determination of a dispute covered by the arbitration clause. But if on the other hand a dispute cropped up at the very outset which cannot be referred to arbitration as being not covered by the clause, then Scott v. Avery clause is rendered inoperative and cannot be pleaded as a bar to the maintainability of the legal action or suit for determination of the dispute which was outside the arbitration clause." (Emphasis supplied) (vii) In the case of United India Insurance Co. Ltd. vs. Antique Art Exports Pvt. Ltd. reported in 2019 (3) Arb. LR 51 (SC), the Hon'ble Supreme Court, in para-20, has held as under: "20. The submission of the learned counsel for the respondent that after insertion of sub-section (6A) to Section 11 of Amendment Act, 2015 the jurisdiction of this Court is denuded and the limited mandate of the Court is to examine the factum of existence of an arbitration and relied on the judgment in Duro Felguera S.A. Vs. Gangavaram Port Limited 2017 (9) SCC 729 . The exposition in this decision is a general observation about the effect of the amended provisions which came to be examined under reference to six arbitrable agreements (five agreements for works and one corporate guarantee) and each agreement contains a provision for arbitration and there was serious dispute between the parties in reference to constitution of Arbitral Tribunal whether there has to be Arbitral Tribunal pertaining to each agreement In the facts and circumstances, this Court took note of sub-section (6A) introduced by Amendment Act, 2015 to Section 11 of the Act and in that context observed that the preliminary disputes are to be examined by the arbitrator and are not for the Court to be examined within the limited scope available for appointment of arbitrator under Section 11(6) of the Act. Suffice it to say that appointment of an arbitrator is a judicial power and is not a mere administrative function leaving some degree of judicial intervention when it comes to the question to examine the existence of a prima facie arbitration agreement, it is always necessary to ensure that the dispute resolution process does not become unnecessarily protracted." (viii) The Hon'ble Supreme Court, in the case of Gareware Wall Ropes Ltd. vs. Coastal Marine Constructions & Engineering Ltd. (Civil Appeal No. 3631 of 2019 disposed of on April 10, 2019], in paras-19, 22, 23 and 24, has held as under: "19. When an arbitration clause is contained "in a contract", it is significant that the agreement only becomes a contract if it is enforceable by law. We have seen how, under the Indian Stamp Act, an agreement does not become a contract, namely, that it is not enforceable in law, unless it is duly stamped. Therefore, even a plain reading of Section 11(6A), when read with Section 7(2) of the 1996 Act and Section 2(h) of the Contract Act, would make it clear that an arbitration clause in an agreement would not exist when it is not enforceable by law. This is also an indicator that SMS Tea Estates (supra) has, in no manner, been touched by the amendment of Section 11(6A). XX XX XX 22. The other judgment strongly relied upon by the learned counsel for the respondent is Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729 ("Duro Felguera"], and in particular, paragraph 59 of the judgment of Kurian Joseph, J. Paragraph 59 reads as follows: "59. The scope of the power under Section 11(6) of the 1996 Act was considerably wide in view of the decisions in SBP and Co. (SBP and Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] and Boghara Polyfab [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117]. This position continued till the amendment brought about in 2015. After the amendment, all that the courts need to see is whether an arbitration agreement exists--nothing more, nothing less. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] and Boghara Polyfab [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117]. This position continued till the amendment brought about in 2015. After the amendment, all that the courts need to see is whether an arbitration agreement exists--nothing more, nothing less. The legislative policy and purpose is essentially to minimise the Court's intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11(6-A) ought to be respected." This judgment also makes it clear that the mischief that was sought to be remedied by the introduction of Section 11(6A) was contained in the judgments of SBP & Co. (supra) and Boghara Polyfab (supra) This judgment does not, in any manner, answer the precise issue that is before us. 23. Indeed, in United India Insurance Co. Ltd. and Ors. v. Hyundai Engineering and Construction Co Ltd. and Ors., ["United India Insurance Co."], a three-Judge Bench of this Court, while dealing with an arbitration clause that arose under an insurance policy, distinguished Duro Felguera (supra) as follows: "12. The other decision heavily relied upon by the High Court and also by the respondents in Duro Felguera [Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729 ], will be of no avail. Firstly, because it is a two-Judge Bench decision and also because the Court was not called upon to consider the question which arises in the present case, in reference to clause 7 of the subject Insurance Policy. The exposition in this decision is a general observation about the effect of the amended provision and not specific to the issue under consideration. The issue under consideration has been directly dealt with by a three-Judge Bench of this Court in Oriental Insurance Company Limited [Oriental Insurance Company Ltd. v. Narbheram Power and Steel (P) Ltd., (2018) 6 SCC 534 ], following the exposition in Vulcan Insurance Co. Ltd. v. Maharaj Singh [Vulcan Insurance Co. Ltd. v. Maharaj Singh, (1976) 1 SCC 943 ], which, again, is a three-Judge Bench decision having construed clause similar to the subject clause 7 of the Insurance Policy. In paragraphs 11 & 12 of Vulcan Insurance Co. Ltd. (supra), the Court answered the issue thus: "11. Ltd. v. Maharaj Singh [Vulcan Insurance Co. Ltd. v. Maharaj Singh, (1976) 1 SCC 943 ], which, again, is a three-Judge Bench decision having construed clause similar to the subject clause 7 of the Insurance Policy. In paragraphs 11 & 12 of Vulcan Insurance Co. Ltd. (supra), the Court answered the issue thus: "11. Although the surveyors in their letter dated April 26, 1963 had raised a dispute as to the amount of any loss or damage alleged to have been suffered by Respondent 1, the appellant at no point of time raised any such dispute. The appellant company in its letter dated July 5 and 29, 1963 repudiated the claim altogether. Under clause 13 the company was not required to mention any reason of rejection of the claim nor did it mention any. But the repudiation of the claim could not amount to the raising of a dispute as to the amount of any loss or damage alleged to have been suffered by Respondent 1. If the rejection of the claim made by the insured be on the ground that he had suffered no loss as a result of the fire or the amount of loss was not to the extent claimed by him, then and then only, a difference could have arisen as to the amount of any loss or damage within the meaning of clause 18. In this case, however, the company repudiated its liability to pay any amount of loss or damage as claimed by Respondent 1. In other words, the dispute raised by the company appertained to its liability to pay any amount of damage whatsoever. In our opinion, therefore, the dispute raised by the appellant company was not covered by the arbitration clause. 12. As per clause 13 on rejection of the claim by the company an action or suit, meaning thereby a legal proceeding which almost invariably in India will be in the nature of a suit, has got to be commenced within three months from the date of such rejection; otherwise, all benefits under the policy stand forfeited. The rejection of the claim may be for the reasons indicated in the first part of clause 13, such as, false declaration, fraud or willful neglect of the claimant or on any other ground disclosed or undisclosed. The rejection of the claim may be for the reasons indicated in the first part of clause 13, such as, false declaration, fraud or willful neglect of the claimant or on any other ground disclosed or undisclosed. But as soon as there is a rejection of the claim and not the raising of a dispute as to the amount of any loss or damage, the only remedy open to the claimant is to commence a legal proceeding, namely, a suit, for establishment of the company's liability. It may well be that after the liability of the company is established in such a suit, for determination of the quantum of the loss or damage reference to arbitration will have to be resorted to in accordance with clause 18. But the arbitration clause, restricted as it is by the use of the words 'if any difference arises as to the amount of any loss or damage', cannot take within its sweep a dispute as to the liability of the company when it refuses to pay any damage at all." xxx xxx xxx 14. From the line of authorities, it is clear that the arbitration clause has to be interpreted strictly. The subject clause 7 which is in pari materia to clause 13 of the policy considered by a three-Judge Bench in Oriental Insurance Company Limited (supra), is a conditional expression of intent. Such an arbitration clause will get activated or kindled only if the dispute between the parties is limited to the quantum to be paid under the policy. The liability should be unequivocally admitted by the insurer. That is the precondition and sine qua non for triggering the arbitration clause. To put it differently, an arbitration clause would enliven or invigorate only if the insurer admits or accepts its liability under or in respect of the concerned policy. That has been expressly predicated in the opening part of clause 7 as well as the second paragraph of the same clause In the opening part, it is stated that the "(liability being otherwise admitted)". This is reinforced and re-stated in the second paragraph in the following words; "It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as hereinbefore provided, if the Company has disputed or not accepted liability under or in respect of this Policy." 15. This is reinforced and re-stated in the second paragraph in the following words; "It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as hereinbefore provided, if the Company has disputed or not accepted liability under or in respect of this Policy." 15. Thus understood, there can be no arbitration in cases where the insurance company disputes or does not accept the liability under or in respect of the policy. 16. The core issue is whether the communication sent on 21st April, 2011 falls in the excepted category of repudiation and denial of liability in toto or has the effect of acceptance of liability by the insurer under or in respect of the policy and limited to disputation of quantum. The High Court has made no effort to examine this aspect at all. It only reproduced clause 7 of the policy and in reference to the dictum in Duro Felguera (supra) held that no other enquiry can be made by the Court in that regard. This is misreading of the said decision and the amended provision and, in particular, misapplication of the three-Judge Bench decisions of this Court in Vulcan Insurance Co. Ltd. (supra) and in Oriental Insurance Company Ltd. (supra). 17. Reverting to the communication dated 21st April, 2011, we have no hesitation in taking the view that the appellants completely denied their liability and repudiated the claim of the JV (respondent Nos. 1 & 2) for the reasons mentioned in the communication. The reasons are specific. No plea was raised by the respondents that the policy or the said clause 7 was void. The appellants repudiated the claim of the JV and denied their liability in toto under or in respect of the subject policy. It was not a plea to dispute the quantum to be paid under the policy, which alone could be referred to arbitration in terms of clause 7. Thus, the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if not non-existent. It is not actuated so as to make a reference to arbitration. Thus, the plea taken by the appellants is of denial of its liability to indemnify the loss as claimed by the JV, which falls in the excepted category, thereby making the arbitration clause ineffective and incapable of being enforced, if not non-existent. It is not actuated so as to make a reference to arbitration. In other words, the plea of the appellants is about falling in an excepted category and non-arbitrable matter within the meaning of the opening part of clause 7 and as re-stated in the second paragraph of the same clause. 18. In view of the above, it must be held that the dispute in question is non-arbitrable and respondent Nos. 1 & 2 ought to have resorted to the remedy of a suit. The plea of respondent Nos. 1 & 2 about the final repudiation expressed by the appellants vide communication dated 17th April, 2017 will be of no avail. However, whether that factum can be taken as the cause of action for institution of the suit is a matter which can be debated in those proceedings. We may not be understood to have expressed any opinion either way in that regard. (emphasis in original) 24. This judgment is important in that what was specifically under consideration was an arbitration clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration clause did "exist", so to speak, in the policy, it would not exist in law, as was held in that judgment, when one important fact is introduced, namely, that the insurer has not admitted or accepted liability. Likewise, in the facts of the present case, it is clear that the arbitration clause that is contained in the sub-contract would not "exist" as a matter of law until the sub-contract is duly stamped, as has been held by us above. The argument that Section 11(6A) deals with "existence", as opposed to Section 8, Section 16, and Section 45, which deal with "validity" of an arbitration agreement is answered by this Court's understanding of the expression "existence" in United India Insurance Co. The argument that Section 11(6A) deals with "existence", as opposed to Section 8, Section 16, and Section 45, which deal with "validity" of an arbitration agreement is answered by this Court's understanding of the expression "existence" in United India Insurance Co. (supra), as followed by us." (viv) Learned Senior Counsel for the opposite party also relied upon the decision of the Hon'ble Supreme Court in the case of Duro Felguera, S.A. vs. Gangavaram Port Limited, reported in (2017) 9 SCC 729 and referred to para-47 and 59, which read as under: "47. What is the effect of the change introduced by the Arbitration and Conciliation (Amendment) Act, 2015 (hereinafter referred to as "the 2015 Amendment") with particular reference to Section 11(6) and the newly added Section 11(6A) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the 1996 Act") is the crucial question arising for consideration in this case. xx xx xx 59. The scope of the power under Section 11 (6) of the 1996 Act was considerably wide in view of the decisions in SBP and Co. (supra) arid" Boghara Polyfab (supra). This position continued till the amendment brought about in 2015. After the amendment, all that the Courts need to see is whether an arbitration agreement exists - nothing more, nothing less. The legislative policy and purpose is essentially to minimize the Court's intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11(6A) ought to be respected." 10. Having heard learned counsel for the parties and taking into consideration the aforesaid judgments relied upon by them, I am of the view that the arbitration clause cannot be overruled as the existence of the agreement survives. The main contention of the opposite party is that in view of the agreement declared null and void by this Court in the public interest litigation petition referred to supra, however, taking into consideration the clause 16.3 of the agreement, the contention raised by learned counsel for the petitioner is accepted in view the observations made by the Hon'ble Supreme Court in Mayavati Trading Private Limited (supra). 11. 11. In that view of the matter and in view of scrutiny of judgments more particularly the decision of the Hon'ble Supreme Court in Mayavati Trading Private Limited (supra) in respect of Section 11 (6-A) of the Act, while referring the matter to the arbitrator, the court is not required to be influenced. Therefore, the claim is referred to the arbitrators for settlement of the disputes/differences between the parties. 12. Shri M. Panda, learned counsel for the petitioner has suggested the name of Shri Justice Basudev Panigrahi, Former Judge of this Court to be appointed as the Arbitrator on behalf of the petitioner and Shri S.K. Pattnaik, learned Senior Counsel for the opposite party has suggested the name of Dr. Justice A.K. Rath, Former Judge of this Court to be the Arbitrator for the opposite party. 13. Accordingly, this Court appoints Shri Justice Basudev Panigrahi and Dr. Justice A.K. Rath, Former Judges of this Court as the arbitrators for the parties. The said two Arbitrators shall nominate a third Arbitrator/Umpire and thereafter the arbitration proceedings may commence in terms of the Arbitration rules. The arbitration proceedings may take place either at the High Court Arbitration Centre or any other place at the choice of the Arbitrators/Umpire. 14. The fees of the learned Arbitrators shall be as per the Fourth Schedule of the Arbitration and Conciliation (Amendment) Act, 2015. It shall be open to the parties to raise all such pleas as are available to them in law before the learned Arbitrators, who shall consider the same on its own merit and in accordance with law. 15. The ARBP is, accordingly, disposed of. This order be communicated to Shri Justice Basudev Panigrahi and Dr. Justice A.K. Rath, Former Judges of this Court forthwith Certified copy of this order be granted on proper application.