JUDGMENT Passed on 14th October, 2022 The applicant has filed this application u/s. 11(6) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the Act of 1996)seeking the appointment of an independent Arbitrator in order to resolve the dispute between the parties. The facts of the case, as pleaded in this application are as under : 1. The applicant is a partnership firm engaged in the business of construction and development. Mr. Shailendra Agrawal is the partner of the applicant firm. The respondents are the owners of land bearing Survey No.108/3/3 area 0.405 Hect. and Survey No.108/8 area 0.177 Hect., total area 0.582 Hect. situated at Village Chitawad, Tehsil and District Indore. For the development of the above lands, the respondents engaged the applicant by way of an agreement dated 27.9.2010. As per the terms and conditions of the agreement, the respondents were required to provide the land diverted and to get the layout sanctioned. It was also agreed between the parties that after development and construction the developed areas would be divided between the parties in the ratio of 60:40, which means the applicant would get 60% of the area and the respondents would get 40% of it. The applicant was to do the entire development work at its own cost. The applicant also agreed to give a refundable security deposit of Rs.10,00,000/- and out of which Rs.5,00,000/- was paid at the time of execution of the agreement. Rs.2,00,000/- was to be spent on diversion and permission. Rs. 3,00,000/- was payable at the time of commencement of the construction work. 2. The applicant obtained a colonizer license and applied for sanctioning of site-plan on 30.11.2010 . The Joint Director, Town & Country Planning sanctioned the plan on 1.3.2014. According to the applicant, preliminary work i.e. boring, levelling, filling, etc. was done, but the respondents have failed to get the land diverted u/s. 172 of the M.P. Land Revenue Code. The applicant vide letter/notice dated 26.3.2015 called upon the respondents to get the said land diverted. 3. The applicant came to know that the respondents are intending to dispose of the said land, hence got published a public notice on 1.5.2015 followed by filing an objection before the Sub Registrar, Registration on 27.6.2015. Meanwhile, the applicant applied for modification of the sanctioned plan. 3. The applicant came to know that the respondents are intending to dispose of the said land, hence got published a public notice on 1.5.2015 followed by filing an objection before the Sub Registrar, Registration on 27.6.2015. Meanwhile, the applicant applied for modification of the sanctioned plan. On repeated requests when the land was not got diverted by the respondents, a legal notice was sent through an Advocate on 6.4.2016 calling upon them to perform their part of the contract and not to indulge in violation of the terms and conditions of the agreement. No reply was received from the respondents. Vide notice dated 30.9.2016, the applicant has called upon the respondents to appoint an Arbitrator in terms of Clause 23 of the agreement dated 27.9.2010. The applicant has filed the present application u/s. 11(6) of the Act of 1996 for the appointment of an independent Arbitrator. The respondents are the joint owner of the land in question, respondent No.4 - Nitin Hardia passed away during pendency of this AC, he is being represented by legal heirs The facts as pleaded in reply are as under : 4. Respondents No.1, 2 and 3 have denied each and every allegation made in the application, except the execution of the agreement dated 27.9.2010 and the arbitration clause contained therein. They specifically denied the receipt of Rs.5,00,000/-, hence according to them there was no valid agreement that came into force and as such this agreement is not enforceable. It is submitted that as per provisions of Section 7 of the Act of 1996, Clause 23 of the agreement does not constitute an arbitration agreement. It is also pleaded that the applicant is not a registered partnership firm, therefore, in view of Section 69 of the Indian Partnership Act, the present application u/s. 11(6) of the Act of 1996 is not maintainable and the same is liable to be dismissed. It is further submitted that the agreement was executed on 27.9.2010 and the same never came into force as no amount of 10 lakhs as refundable security has not been done by the applicant. On 11.11.2013, respondent No.4 - Nitin Hardia expired and after his death, on 26.12.2013 the applicant applied to the Joint Director, Town and Country Planning for a grant of site clearance in the name of a dead person. On 11.11.2013, respondent No.4 - Nitin Hardia expired and after his death, on 26.12.2013 the applicant applied to the Joint Director, Town and Country Planning for a grant of site clearance in the name of a dead person. It is further pleaded that the possession of the land was never handed over to the applicant. All the notices were duly replied to by the respondents, hence, the application is liable to be dismissed. 5. After the death of respondent No.4 - Nitin Hardia, his legal heirs have been brought on record and accordingly the cause title of memo of the applicant has been corrected. Respondents No.4 and 5 have adopted the reply filed by respondents No.1 to 3. Submissions of the learned senior counsel appearing for the applicant 6. Shri A.K. Sethi, learned senior counsel submitted that to decide this application filed u/s. 11(6) of the Act of 1996, the only requirement is to see whether there is an arbitration agreement between the parties and the rest of the issues are liable to be decided by the learned Arbitrator in view of amendment in Section 11(6)(a) of the Act of 1996. It is further submitted that the effect of Section 69 of the Indian Partnership Act is liable to be considered by the Arbitrator. In Section 69 of the Indian Partnership Act, the word 'suit' has been used, therefore, this proceeding under the Act of 1996 cannot be termed as a 'suit', hence the objection taken by the respondents is not tenable. In support of this contention, learned senior counsel has cited the judgment of the Apex Court in the case of 0.in which it is held that the arbitral proceedings do not come under the expression 'other proceedings' in Section 69 of the Indian Partnership Act, hence, the ban imposed under the said Section 69 can have no application to arbitral proceedings as well as the arbitration award. 7. Learned senior counsel further submitted that an arbitration clause in the agreement is immortal even if the agreement is expired or rescinded, the arbitration clause survives as held by the apex Court in the case of N. Srinivasa V/s. Kuttukaran Machine Tools Ltd. : 2009(4) MPLJ SC 321. 7. Learned senior counsel further submitted that an arbitration clause in the agreement is immortal even if the agreement is expired or rescinded, the arbitration clause survives as held by the apex Court in the case of N. Srinivasa V/s. Kuttukaran Machine Tools Ltd. : 2009(4) MPLJ SC 321. It is also submitted that u/s. 11(6) of the Act of 1996, this Court is only required to see whether there is an arbitration clause in the agreement executed between the parties and all other issues are liable to be decided by an Arbitrator. In support of his contention, he has placed reliance on the judgment of the Apex Court in the case of Uttarakhand Purv Sainik Kalyan Nigam Ltd. V/s. Northern Coal Field Ltd. : (2020) 2 SCC 455 . Submissions of the learned senior counsel appearing for the respondents 8. Per contra , Shri Vinay Saraf, learned senior counsel appearing for the respondents, has vehemently argued that the applicant has failed to perform his part as per the terms and conditions of the agreement. Since the amount of refundable security deposit of Rs.10,00,000/- has not been paid, therefore, the agreement is deemed to have been automatically cancelled. It is further submitted that Section 69 of the Indian Partnership Act prohibits an unregistered partnership firm to bring a suit. When the suit itself is not maintainable, then there is no need to refer the case to an Arbitrator. In support of his contention, he has placed reliance on the judgment of the Apex Court in the case of K.K. Modi V/s. K.N. Modi & others : (1998) 3 SCC 573 in which it is held that an arbitration agreement must contemplate that the decision of the tribunal will be binding on the parties to the agreement. Learned senior counsel has also placed reliance on the judgment of the Apex Court in the case of Jagdish Chander V/s. Ramesh Chander & others : (2007) 5 SCC 719 . Learned senior counsel has also placed reliance on the judgment of the Apex Court in the case of Jagdish Chander V/s. Ramesh Chander & others : (2007) 5 SCC 719 . On the issue of limitation, Shri Saraf, learned senior counsel for the respondents has placed reliance on the judgment of the Apex Court in the case of Secunderabad Cantonment Board V/s. B. Ramachandraiah & sons : (2021) 5 SCC 705 and in the case of Bharat Sanchar Nigam Ltd. V/s. Nortel Networks India Pvt. Ltd. : (2021) 5 SCC 738 , in which it is held that mere exchange of letters or mere settlement discussions will not extend the period of limitation. The period of limitation will begin to run from the date when there is a failure to appoint an Arbitrator. 9. By way of rejoinder, the applicant has filed a copy of the receipt of payment of Rs.5,00,000/- to the respondents which Shri Saraf, learned senior counsel, has denied and alleged that the document is a forged document, which disentitles the applicant to invoke the arbitration clause. Appreciations and conclusions ..... 10. So far as the issue of registration of the applicant's firm to file this application is concerned, it is submitted by the applicant by way of rejoinder that an application for registration had already been filed on 29.1.2011 in the office of Assistant Registrar, Firms & Societies, Indore along with a Challan of Rs.551/- how ever the registration will have a prospective operation. The execution of the agreement dated 27.9.2010 is not in dispute between the parties. The said agreement contains an arbitration clause i.e. Clause No.23 and the said Clause is also not in dispute. In exercise of powers conferred u/s. 11(6) of the Act of 1996, this Court is only required to examine the existence of an arbitration clause in the agreement. The rest of the issues are liable to be decided by an Arbitrator to be appointed by this Court. Hence the maintainability of the claims to be filed before the Arbitrator is liable to be decided by the learned Arbitrator 11. After the execution of the agreement, a dispute arose between the parties. The rest of the issues are liable to be decided by an Arbitrator to be appointed by this Court. Hence the maintainability of the claims to be filed before the Arbitrator is liable to be decided by the learned Arbitrator 11. After the execution of the agreement, a dispute arose between the parties. The applicant in view of Clause 23 of the agreement has called upon the respondents to appoint an Arbitrator but the respondents did not respond to the said notices, therefore, the applicant has rightly approached this Court by way of present application u/s. 11(6) of the Act of 1996. All the issues viz. whether Rs.5,00,000/- has been paid or not to the respondents; whether the applicant was willing and ready to perform its part of the contract; whether there was a non-performance on the part of the respondents; etc. are the issues required to be adjudicated by an Arbitrator and not in these proceedings which is only confined to appointment of an Arbitrator by virtue of the arbitration clause. It is also settled law that even if the agreement between the parties is expired or rescinded, the arbitration clause in the agreement survives. All these conditions are fulfilled in the present case and, therefore, this application is liable to be allowed. 12. In the case of M/s. Uttarakhand Purv Sainik Kalyan Nigam Limited Vs. Northern Coal Field Limited reported in (2020) 2 SCC 455 , the Apex Court has held that 2015 amendment act has brought a significant change in the appointment process under section 11 of the Arbitration and Conciliation Act. In view of this, under section 11 (6-a) of the Act of 1996 the Court is now required to only examine the existence of an arbitration agreement and all other preliminary or threshold issues are left to be decided by the Arbitrator under section 16. '7.10. In view of the legislative mandate contained in Section 11(6-A), the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issues are left to be decided by the arbitrator under Section 16, which enshrines the kompetenz- kompetenz principle. 7.11. '7.10. In view of the legislative mandate contained in Section 11(6-A), the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issues are left to be decided by the arbitrator under Section 16, which enshrines the kompetenz- kompetenz principle. 7.11. The doctrine of 'kompetenz-kompetenz', also referred to as 'compétence-compétence', or 'compétence de la recognized', implies that the Arbitral Tribunal is empowered and has the competence to rule on its own jurisdiction, including determining all jurisdictional issues, and the existence or validity of the arbitration agreement. This doctrine is intended to minimise judicial intervention, so that the arbitral process is not thwarted at the threshold, when a preliminary objection is raised by one of the parties. The doctrine of kompetenz-kompetenz is, however, subject to the exception i.e. when the arbitration agreement itself is impeached as being procured by fraud or deception. This exception would also apply to cases where the parties in the process of negotiation, may have entered into a draft agreement as an antecedent step prior to executing the final contract. The draft agreement would be a mere proposal to arbitrate, and not an unequivocal acceptance of the terms of the agreement. Section 7 of the Contract Act, 1872 requires the acceptance of a contract to be absolute and unqualified [Dresser Rand S.A. v. Bindal Agro Chem Ltd., (2006) 1 SCC 751 . See also BSNL v. Telephone Cables Ltd., (2010) 5 SCC 213 : (2010) 2 SCC (Civ) 352. Refer to PSA Mumbai Investments Pte. Ltd. v. Jawaharlal Nehru Port Trust, (2018) 10 SCC 525 : (2019) 1 SCC (Civ) 1] . If an arbitration agreement is not valid or non-existent, the Arbitral Tribunal cannot assume jurisdiction to adjudicate upon the disputes. Appointment of an arbitrator may be refused if the arbitration agreement is not in writing, or the disputes are beyond the scope of the arbitration agreement. Article V(1)(a) of the New York Convention states that recognition and enforcement of an award may be refused if the arbitration agreement 'is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made'. 7.12. The legislative intent underlying the 1996 Act is party autonomy and minimal judicial intervention in the arbitral process. 7.12. The legislative intent underlying the 1996 Act is party autonomy and minimal judicial intervention in the arbitral process. Under this regime, once the arbitrator is appointed, or the tribunal is constituted, all issues and objections are to be decided by the Arbitral Tribunal. 7.13. In view of the provisions of Section 16, and the legislative policy to restrict judicial intervention at the pre- reference stage, the issue of limitation would require to be decided by the arbitrator. Sub-section (1) of Section 16 provides that the Arbitral Tribunal may rule on its own jurisdiction, 'including any objections' with respect to the existence or validity of the arbitration agreement. Section 16 is as an inclusive provision, which would comprehend all preliminary issues touching upon the jurisdiction of the Arbitral Tribunal. The issue of limitation is a jurisdictional issue, which would be required to be decided by the arbitrator under Section 16, and not the High Court at the pre-reference stage under Section 11 of the Act. Once the existence of the arbitration agreement is not disputed, all issues, including jurisdictional objections are to be decided by the arbitrator.' 13. In view of the above discussion all the objections taken by respondents are hereby rejected., I hereby appoint Mr Justice (Retd.) , former Judge of this High Court, as the sole arbitrator, subject to the declarations being made under Section 12 of the 1996 Act (as amended) concerning the independence and impartiality of the arbitrator, and the ability to devote sufficient time to complete the arbitration within the period specified by Section 29-A of the 1996 Act. 14. The arbitration agreement states that the venue of the Arbitration shall be such place or places as may be fixed by the Arbitrator in his sole discretion. The arbitrator is, at liberty to conduct the proceedings at a convenient venue as per the convenience of the arbitrator and the parties if so required. The arbitrator will be paid fees in accordance with the Fourth Schedule of the 1996 Act. Both parties will share the costs of the arbitration equally. 15. The Registry is directed to dispatch a copy of this order to Mr Justice G.S Solanki (Retd.) , Former Judge, High Court at the following address: 'Mr Justice (Retd.) G. S. Solanki Former Judge, High Court of M.P. , Mob. No. : 9425323538 171, Rani Bag Main, Khandwa Road, Indore. 16. 15. The Registry is directed to dispatch a copy of this order to Mr Justice G.S Solanki (Retd.) , Former Judge, High Court at the following address: 'Mr Justice (Retd.) G. S. Solanki Former Judge, High Court of M.P. , Mob. No. : 9425323538 171, Rani Bag Main, Khandwa Road, Indore. 16. The parties are directed to appear before the learned arbitrator on 04.11.2022 at 2 pm. The matter is disposed of accordingly.