ORDER 1. This is a petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996 ('Act'), seeking the appointment of an Arbitrator to adjudicate the disputes between the Petitioner Grasim Industries Limited (GIL) and the Opposite Party Jayashree Chemicals Limited (JCL) arising out of a Business Transfer Agreement (BTA) dated 8th September, 2014 along with its amendment. 2. The background facts are that in terms of the above BTA that stood amended on 8th September 2015, the predecessor in interest of GIL, Aditya Birla Chemicals (India) Limited (ABCIL) purchased the business undertaking of JCL on 'as is where is' basis, as a going concern by way of a slump sale. The agreements contained covenants, representations, warranties and indemnities. ABCIL was merged with GIL with effect from 4th January, 2016 by an order dated 24th November, 2015 passed by the High Court of Jharkhand.All assets, liabilities, interests, titles, claims, etc. including the above business undertaking are stated to have merged and become part of GIL. For all purposes, including the BTA, GIL stepped into the shoes of ABCIL. 3. ABCIL was merged with GIL with effect from 4th January, 2016 by an order dated 24th November, 2015 passed by the High Court of Jharkhand.All assets, liabilities, interests, titles, claims, etc. including the above business undertaking are stated to have merged and become part of GIL. For all purposes, including the BTA, GIL stepped into the shoes of ABCIL. 3. Clause 13 of the BTA, which provides for the seller JCL indemnifying the buyer, i.e. GIL, reads as under '13.1.1 The Seller hereby agrees indemnify and hold the Purchaser, its respective Affiliates and directors, officers, agents and representatives and any Person claiming by and through it harmless from and against any and all Losses arising out of or otherwise related to: a) Any defect in the title relating to Real Property pertaining to Business undertaking; or b) Any act, deed, omission or non-compliance with applicable Law on or before the Closing Date by the Seller, their agents, representatives, employee, officers, or directors; or c) Any breach or inaccuracy of any representation and warranty made by the seller in this Agreement or in any Related Agreement; or d) Any obligation, Loss or liability of the Seller or any Affiliate of the Seller (not otherwise provided for in any other Sub-clauses of this Clause 13.1.1) whether disclosed or not disclosed relating to matters or events arising at or prior to Closing; or e) Any non-fulfillment, non-observance, non-performance or breach of any covenant or agreement by the Seller contained in this Agreement or in any Related Agreements; or f) Any obligation, Loss or liability of the Seller or any Affiliate of the Seller arising with respect to any of the Excluded Liabilities; or g) Any claim from Southern Electricity Supply Company of Orissa Limited pursuant to the qualifying remarks in the electricity bill or the outcome of the WP(C) No.10955 of 2013 pending before the Hon'ble High Court of Odisha.' 4. According to GIL, due to non-compliance by JCL with environmental laws, a sum of Rs.2,11,36,662/- had to be deposited by the GIL with the Odisha State Pollution Control Board (OSPCB) towards preliminary study, investigation and remediation of the mercury contaminated site of the Ganjam unit of JCL. 5. According to GIL, due to non-compliance by JCL with environmental laws, a sum of Rs.2,11,36,662/- had to be deposited by the GIL with the Odisha State Pollution Control Board (OSPCB) towards preliminary study, investigation and remediation of the mercury contaminated site of the Ganjam unit of JCL. 5. According to GIL, further on account of violation and non- compliance of environmental laws, the OSPCB estimated the remediation cost to be Rs.28.70 crores including cost to be incurred for the various activities related to remediation of mercury contaminated soil, sediments and waste, surfaces water, ground water and shifting of mercury contaminated sludge from the unlined pit to constructed Secured Land Fill (SLF) within the premises as per existing rules. 6. GIL then issued a notice on 14th October, 2019 to JCL enforcing the aforementioned indemnity clause and seeking to be paid Rs.2,11,36,662/- and Rs.28.70 crores respectively in terms of Clause 13 of the BTA. By letter dated 8th November, 2019 and 20th December, 2019, JCL denied its liability. 7. In view of the dispute between the parties, GIL invoked Clause 16 of the BTA for resolution of the dispute through negotiation and arbitration. It must be noted here that this is a composite clause that provides for negotiations between the parties at two internal levels, failing which the parties can go in for arbitration. 8. On 23rd January 2020, GIL first sought resolution of the dispute by senior officers of the parties in terms of Clause 16.1.1 of the BTA. A meeting was held on 8th February, 2020 for this purpose, but the dispute remained unresolved. Thereafter, by letter dated 4th March, 2020, GIL, in terms of Clause 16.1.2 of the BTA, requested JCL for resolution of the dispute at the senior management level. The senior management officers of both GIL and JCL met on 26th June, 2020. The resolution of the dispute remained elusive. 9. Thereafter, GIL invoked Clause 16.2.1 of the BTA and issued a notice dated 10th September, 2020 to JCL proposing the name of the sole arbitrator, being a former judge of this Court. By letter dated 24th September, 2020, JCL conveyed its inability to accept GIL's nominee to be the sole arbitrator. Instead it suggested the names of two other arbitrators, for GIL to choose from. This was unacceptable to the GIL and this was conveyed to JCL by its letter dated 7th October, 2020. By letter dated 24th September, 2020, JCL conveyed its inability to accept GIL's nominee to be the sole arbitrator. Instead it suggested the names of two other arbitrators, for GIL to choose from. This was unacceptable to the GIL and this was conveyed to JCL by its letter dated 7th October, 2020. Thereafter the present petition was filed. 10. In response to the petition, JCL has filed a fairly detailed reply on 15th January, 2021. It is pointed out that, on 1st May, 2015 a notice under Section 5 of the Environment Protection Act, 1986 was issued to JCL by the OSPCB asking it to pay Rs.2,11,36,662/- for violation of the Hazardous Waste (Management, Handling & Transboundary) Rules, 2008. This demand was challenged by JCL in this Court by filing WP(C) No. 12713 of 2015 on 13th July, 2015. 11. In the said writ petition, which is pending, an interim order was passed by this Court to the effect that no coercive steps shall be taken against JCL. JCL has alleged that, GIL has suppressed material facts in the present petition by not adverting to the above pending writ petition. 12. Mr. L. Pangari, learned Senior counsel for GIL, submitted that the essential requisites for maintaining a petition under Section 11 (6) of the Act stood fulfilled in the present case. First, there was no denial that there was a dispute between the parties arising out of the BTA and secondly, that there was an arbitration clause in the BTA providing for a mechanism for the resolution of such dispute. He submitted that since GIL had already paid the sums demanded by OSPCB, its claim against JCL would be maintainable notwithstanding the outcome of JCL's petition against PSPCB questioning the demand. 13. In reply, Mr. Siddhartha Datta, learned counsel appearing for JCL, urged that since JCL's writ petition was not yet decided, the present petition seeking the appointment of an arbitrator should be stood over. According to him, the subject matter of W.P. (C) No.12713 of 2015 pending in this Court is no different from the core issue required to be adjudicated in the arbitration. Mr. Dutta submitted that the claims could be either in personam or in rem. He submitted that the claim of OSPCB against JCL was a claim in rem whereas the liability of the JCL to indemnify GIL was in personam. Mr. Dutta submitted that the claims could be either in personam or in rem. He submitted that the claim of OSPCB against JCL was a claim in rem whereas the liability of the JCL to indemnify GIL was in personam. However, the latter arose out of and was dependant on the former. He submitted that the arbitrator would be in no position to decide the issue of non-compliance by JCL with the Hazardous Waste (Management, Handing & Transboundary) Rules, 2008 and that issue could be decided only by this Court. Reliance was placed by Mr. Datta on the decision of the Supreme Court in Vidya Drolia v. Durga Trading Corprn. (2021) 3 SCC 103 . Mr. Datta submitted that while it was understandable that GIL had sent its notice to JCL before the expiry of five years from the date of the BTA, since the outcome of the pending writ petition by JCL against the OSPCB would have a direct bearing on the present claim of GIL, the hearing of the present petition should be deferred to await the result of the writ petition. 14. The Court has considered the above submissions. At the outset, it requires to be noticed that there are certain facts that are not in doubt. The first is that arising out of the BTA, there is an unresolved dispute between the parties to the BTA. The second is that, there is an arbitration clause in the BTA, which envisages the appointment of a sole arbitrator to adjudicate the disputes between the parties arising from the BTA. IN this connection it may be noted that GIL has exhausted the other mechanisms that were required to be invoked under Clause 16 of the BTA before resorting to arbitration. Therefore, the two key elements as far as Section 11(6) of the Act concerned viz., the existence of disputes, and the existence of an arbitration clause, stands fulfilled in the present case. 15. As regards the writ petition pending in this Court at the instance of the JCL against the OSPCB, it is seen that the GIL is not a party to that writ petition. Therefore, the interim order the JCL may have in its favour and against the OSPCB in the said writ petition could not have helped GIL to refuse to honour the demand raised against the unit by the OSPCB. Therefore, the interim order the JCL may have in its favour and against the OSPCB in the said writ petition could not have helped GIL to refuse to honour the demand raised against the unit by the OSPCB. In other words, even while JCL may have got an interim order that prevents OSPCB from recovering any amount from it, at no point of time was there any interim order in favour of GIL restraining OPSCB from proceeding against it for failure to honour the demand. 16. The Court is unable to accept the contention of JCL that since the subject matter of the dispute between the parties, notwithstanding being one to enforce contractual rights of indemnity under the BTA, should await the decision in the writ petition which involves an issue which partakes the character of an action in rem. There appears to be a conceptual confusion in this submission. If indeed the claim of GIL against JCL was directly dependant on the outcome of the litigation between JCL and OSPCB, then it would have been in JCL's interest to have made GCL a party to that litigation. For reasons kwon to it, JCL did not adopt that course of action. Moreover, factually, GIL did not await the outcome of the said writ petition, even assuming it knew of its pendency in this Court. It went ahead and paid OSPCB the dues and on that basis is today maintaining its claim against JCL. The latter dispute, based on the indemnity clause in the BTA, cannot be said to be an action in rem. It is undoubtedly an action in personam. Also, since GIL is not a party to the writ petition, coupled with the fact that it has already paid the demand of OSPCB, the outcome of the writ petition will not affect its claim against JCL. It is, therefore, not possible to accept JCL's contention that the in personam cause of action that gave rise to the claim of GIL against JCL arises out of and is dependent on the in rem cause of action giving rise to the writ petition by JCL against the OSPCB. 17. At this stage it would be useful to recapitulate what the scope of the present proceedings are. 17. At this stage it would be useful to recapitulate what the scope of the present proceedings are. In National Insurance Company Limited v. Boghara Polyfab Private Limited (2009) 1 SCC 267 , the Supreme Court identified and segregated the issues that arise for consideration in an application under Section 11 of the Act into three categories, viz. (i) issues which the Chief Justice or his designate is bound to decide; (ii) issues which he can also decide, that is, issues which he may choose to decide or leave it to the arbitral tribunal to decide; and (iii) issues which should be left to the arbitral tribunal to decide. The first category included the issues: (a) Whether the party making the application has approached the appropriate High Court. (b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement. 18. In Vidya Drolia v. Durga Trading Corporn. (supra), the Supreme Court was essentially dealing with the kind of disputes that could be said to be arbitrable and those that were not. In that context it further examined the aspect of actions in rem and actions in personam and observed: 'In view of the above discussion, we would like to propound a four- fold test for determining when the subject matter of a dispute in an arbitration agreement is not arbitrable: (1) when cause of action and subject matter of the dispute relates to actions in rem, that do not pertain to subordinate rights in personam that arise from rights in rem. (2) when cause of action and subject matter of the dispute affects third party rights; have erga omnes effect; require centralized adjudication, and mutual adjudication would not be appropriate and enforceable; (3) when cause of action and subject matter of the dispute relates to inalienable sovereign and public interest functions of the State and hence mutual adjudication would be unenforceable; and (4) when the subject-matter of the dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s). These tests are not watertight compartments; they dovetail and overlap, albeit when applied holistically and pragmatically will help and assist in determining and ascertaining with great degree of certainty when as per law in India, a dispute or subject matter is non-arbitrable. These tests are not watertight compartments; they dovetail and overlap, albeit when applied holistically and pragmatically will help and assist in determining and ascertaining with great degree of certainty when as per law in India, a dispute or subject matter is non-arbitrable. Only when the answer is affirmative that the subject matter of the dispute would be non-arbitrable.' 19. In Vidya Drolia (supra), the Supreme Court further decided to which of the three categories delineated in Boghara Polyfab (supra) the issue whether the cause of action relates to action in personam or in rem belonged, and answered it thus: 'The first category of issues, namely, whether the party has approached the appropriate High Court, whether there is an arbitration agreement and whether the party who has applied for reference is party to such agreement would be subject to more thorough examination in comparison to the second and third categories/issues which are presumptively, save in exceptional cases, for the arbitrator to decide. In the first category, we would add and include the question or issue relating to whether the cause of action relates to action in personam or rem; whether the subject matter of the dispute affects third party rights, have erga omnes effect, requires centralized adjudication; whether the subject matter relates to inalienable sovereign and public interest functions of the State; and whether the subject matter of dispute is expressly or by necessary implication non-arbitrable as per mandatory statue (s). Such questions arise rarely and, when they arise, are on most occasions questions of law. On the other hand, issues relating to contract formation, existence, validity and non-arbitrability would be connected and intertwined with the issues underlying the merits of the respective disputes/claims. They would be factual and disputed and for the arbitral tribunal to decide. We would not like be too prescriptive, albeit observe that the court may for legitimate reasons, to prevent wastage of public and private resources, can exercise judicial discretion to conduct an intense yet summary prima facie review while remaining conscious that it is to assist the arbitration procedure and not usurp jurisdiction of the arbitral tribunal. Undertaking a detailed full review or a long-drawn review at the referral stage would obstruct and cause delay undermining the integrity and efficacy of arbitration as a dispute resolution mechanism. Undertaking a detailed full review or a long-drawn review at the referral stage would obstruct and cause delay undermining the integrity and efficacy of arbitration as a dispute resolution mechanism. Conversely, if the court becomes too reluctant to intervene, it may undermine effectiveness of both the arbitration and the court. There are certain cases where the prima facie examination may require a deeper consideration. The court's challenge is to find the right amount of and the context when it would examine the prima facie case or exercise restraint. The legal order needs a right balance between avoiding arbitration obstructing tactics at referral stage and protecting parties from being forced to arbitrate when the matter is clearly non-arbitrable.' 20. On the above parameters, it is unmistakable that the dispute between GIL and JCL arising from the BTA and their claims vis-a- vis each other would be actions in personam. While the dispute between JCL and OSPCB might partake the character of an action in rem, in the facts and circumstances of the present case, the cause of action in the dispute between GIL and JCL has given rise to an action in personam and therefore there is no bar to its arbitrability at this stage. To repeat, with GIL not being a party to the writ petition by JCL against the OSPCB, the outcome of the said writ petition will not affect its claim against JCL. Having already paid the dues demanded by OSPCB, GIL is out-of-pocket, and can maintain a claim against JCL. The in personam cause of action that gives rise to GIL's claim against JCL is not dependent on the outcome of the in rem cause of action giving rise to the writ petition by JCL against the OSPCB. 21. This Court, in the present petition, is not called upon to adjudicate whether the claim of GIL against JCL is justified or not. For that matter, this Court is not even called upon to answer the question whether OPSCB is justified in proceeding against JCL or GIL. The scope of the arbitration proceedings is the claims and counter-claims of GIL and JCB vis-a-vis each other. OSPCB is not party to the BTA and, therefore, not a party to the arbitration. For that matter, this Court is not even called upon to answer the question whether OPSCB is justified in proceeding against JCL or GIL. The scope of the arbitration proceedings is the claims and counter-claims of GIL and JCB vis-a-vis each other. OSPCB is not party to the BTA and, therefore, not a party to the arbitration. There is merit in GIL's contention that having been out of pocket as far as the dues claimed by OSPCB are concerned, it cannot be prevented from proceeding with its claim against JCL, notwithstanding the outcome of the writ petition by JCL against the OSPCB. In any event, even this is an issue that is best left to be decided by the Arbitrator. This Court, therefore, expresses no opinion in that regard. Equally, it expresses no opinion on the principal contention of JCL that it is not liable to indemnify GIL for the amounts the latter had to ay to the OSPCB. All these are left to be urged before the Arbitrator for decision. 22. The Court nevertheless accepts the contention of GIL that the mere pendency of JCL's writ petition in this Court against the OSPCB should not prevent GIL from seeking to invoke the arbitration clause in the BTA for resolution of its disputes against JCL and incidental thereto to seek the appointment of an Arbitrator. he dispute inter se between GIL and JCL relates to an action in personam and is arbitrable. That indeed is the limited scope of the present petition. 23. Therefore, without commenting one way or the other on the merits of the respective contentions of the parties, the Court is of the view that with the two basic elements for the appointment of the arbitrator in terms of Section 11 of the Act standing fulfilled, there is no difficulty in proceeding to appoint a sole arbitrator to adjudicate their inter se disputes arising from the BTA. It is clarified that, all the contentions of the parties are left open to the urged before the learned Arbitrator in accordance with law. 24. This Court accordingly appoints Justice P.K. Mishra, the former Chief Justice of the High Court of Patna as the sole Arbitrator to adjudicate the disputes between the parties. The arbitration will take place under the aegis of the Orissa High Court Arbitration Centre. 25. The petition is disposed of in the above terms. 26. 24. This Court accordingly appoints Justice P.K. Mishra, the former Chief Justice of the High Court of Patna as the sole Arbitrator to adjudicate the disputes between the parties. The arbitration will take place under the aegis of the Orissa High Court Arbitration Centre. 25. The petition is disposed of in the above terms. 26. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of this order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No. 4587 dated 25th March, 2020 as modified by Court's Notice No. 4798 dated 15th April, 2021. A copy of the order be provided to the learned Arbitrator by the Registry orthwith.