JUDGMENT : 1. This application has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act, 1996) seeking direction for appointment of sole Arbitrator so as to make reference of the dispute arisen between the parties for its adjudication. 2. The brief facts of the case, as has been enumerated in the instant arbitration application, read as under : The petitioner/applicant, namely, Shah Sponge & Power Limited having its office at 7-Grant Lane Ganapati Chambers, Room no. 310, Cabin no. 5, Kolkata-700012 (West Bengal), and Administrative office at Holding no. 18, 2nd Floor, Padmalaya Building, Ram Mandir Shop Area, P.O. & P.S. Bistupur, Jamshedpur-831001 (Jharkhand), made a proposal/request for premium quote in respect of IAR and Marine Open Policy to the opposite party-Insurance Company. It further appears from the pleadings made in the arbitration application that after receiving the policy the applicant/petitioner found that the sum assured against MLOP was Rs.5,10,00,000/- as against the proposal for Rs.15,10,00,000/-, as such, the applicant/petitioner immediately made an application on 26.07.2017 requesting therein to provide endorsement with the actual proposed amount at the earliest. But, the opposite party did not respond to the applicant/petitioner’s application and also no action has been taken. The applicant/petitioner since suffered machinery breakdown loss of Rs.1,66,65,264/- and business interruption loss of Rs.4,38,95,731/-. The applicant/petitioner in consequence of such loss, made claim of Rs.6,05,60,995/- as per the terms and conditions of the policy on 24.12.2019. It is the case of the applicant/petitioner that the opposite party had settled the machinery breakdown loss for an amount of Rs.1,09,65,000/- but, the claim for business interruption was rejected stating that the claim is falling under deductibles. The applicant/petitioner has disputed the aforesaid stand of the opposite party on the ground that the sum insured was wrongly captured in the policy and the loss assessment was not done as per the terms and conditions of the policy. The applicant/petitioner has also raised objection vide letter dated 22.02.2021 requesting therein to send break-up of admissible claim to understand the settlement amount. As such, request has again been made vide letter dated 09.04.2021 wherein the report of the surveyor has also been asked for. The applicant/petitioner has also raised objection vide letter dated 22.02.2021 requesting therein to send break-up of admissible claim to understand the settlement amount. As such, request has again been made vide letter dated 09.04.2021 wherein the report of the surveyor has also been asked for. According to the applicant/petitioner, Clause 12 of the policy contains the arbitration clause, as such, he has made a request by giving an application as contained in letter dated 20.05.2021 in terms of Section 21 of the Act, 1996. The applicant/petitioner, in the backdrop of the aforesaid fact has filed the instant arbitration application invoking the jurisdiction of this Court conferred under Section 11(6) of the Act, 1996. 3. This Court has heard the learned counsel for the applicant/petitioner and issued notice upon the opposite party as would appear from order dated 27.06.2022. In pursuance thereof, the opposite party has put its appearance through its counsel, namely, Mr. Manish Kumar. Counter affidavit has been filed in objection to the averment made in the application dated 05.09.2022 and 18.10.2022. The stand inter alia has been taken in both the affidavits that the claim which is the subject matter of the dispute is inconsistent with the admissibility of claim since the cause of loss and the extent of damage is covered by the policy issued by operating office. The internal accidental damage resulting in breakdown of Turbo Generator (TG Set) Make Toyao Denki Power Systems with capacity 1875 KVA (15MW) is the cause of loss due to which the Stator and Rotor of the Generator was found to have suffered major damage. The admissibility of the claim has been confirmed by the surveyor. It has further been stated that the sum insured under the policy is subject to underinsurance as detailed in the survey report. The opposite party has taken the stand that, however, the claim pertaining to sustaining business loss is also the subject matter of policy but as per the report of the surveyor since the aforesaid claim has been repudiated by the opposite party-Insurance Company and as such, there is no such basis of the claim pertaining to business loss which is being claimed to be sustained by the applicant/petitioner. 4. 4. The learned counsel for the applicant/petitioner, in response to the submission on repudiation, has raised objection by agitating the point that there is no such decision to that effect as is being submitted by the learned counsel for the opposite party. 5. This Court, on the last date of hearing, has adjourned the matter granting time to the opposite party to bring on record the order of repudiation, if any so far as it relates to business loss. 6. An affidavit to that effect has been filed on 18.10.2022 on behalf of the opposite party but no such order of repudiation has been filed, however, the claim as was submitted by the applicant/petitioner has been appended to the aforesaid affidavit in order to demonstrate that the claim which was made by the applicant/petitioner pertains in two parts, first for breakdown of machinery and second pertains to sustaining business loss. 7. It has orally been submitted by the learned counsel for the opposite party that there is no order of repudiation of the claim but the opposite party since has acted upon on the report of the surveyor who has denied the claim of the applicant/petitioner so far as it relates to sustaining business loss and as such, the same will be treated to be repudiation of the claim. 8. This Court has heard the learned counsel for the parties, considered the relevant documents appended in the instant application. The application since has been filed under Section 11(6) of the Act, 1996, therefore, this Court, before coming to the conclusion as to whether the instant application is maintainable on the ground of arbitrability of the dispute, deems it fit and proper to refer the condition of the policy which contains a condition to refer the dispute before the arbitrator for adjudication/settlement of the dispute. It appears from Clause -12 of the policy as contained in Annexure-2 to the application that if any difference shall arise as to the quantum to be paid under this policy (liability being otherwise admitted) such difference shall independently of all other questions be referred to the decision of an arbitrator to be appointed in writing by the parties in difference, of if they cannot agree upon a single arbitrator, to the decision of two dis-interested persons as arbitrators of whom one shall be appointed in writing by each of the parties within two calendar months after having been required so to do in writing by the other party in accordance with the provision of the Arbitration Act, 1940, as amended from time to time and for the time being in force. In case either party shall refuse or fail to appoint arbitrator within two calendar months after receipt of notice in writing requiring an appointment, the other party shall be at liberty to appoint sole arbitrator and in case of disagreement between the arbitrators, the difference shall be referred to the decision of an umpire who shall have been appointed by them in writing before entering on the reference and who shall sit with the arbitrators and preside at their meetings. For ready reference, the aforesaid condition is being referred as under: “12. If any difference shall arise as to the quantum to be paid under this policy (liability being otherwise admitted) such difference shall independently of all other questions be referred to the decision of an arbitrator to be appointed in writing by the parties in difference, of if they cannot agree upon a single arbitrator, to the decision of two dis-interested persons as arbitrators of whom one shall be appointed in writing by each of the parties within two calendar months after having been required so to do in writing by the other party in accordance with the provision of the Arbitration Act, 1940, as amended from time to time and for the time being in force. In case either party shall refuse or fail to appoint arbitrator within two calendar months after receipt of notice in writing requiring an appointment, the other party shall be at liberty to appoint sole arbitrator and in case of disagreement between the arbitrators, the difference shall be referred to the decision of an umpire who shall have been appointed by them in writing before entering on the reference and who shall sit with the arbitrators and preside at their meetings. It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as hereinabove provided, if the Company has disputed or not accepted liability under or in respect of this policy. It is hereby expressly stipulated and declared that it shall be a condition precedent to any right of action or suit upon this policy that the award by such arbitrator, arbitrators or umpire of the amount of the loss or damage shall be first obtained. 9. It is, thus, evident after going through the condition stipulated under Clause 12 of the policy that in case of any difference pertaining to quantum to be paid under the policy if the liability is not admitted, the parties have been given right to appoint arbitrator. Admittedly herein, the condition stipulates for appointment of arbitrator in case of any difference of quantum to be paid under the policy. The applicant/petitioner has raised the issue about his claim in two parts, first for breakdown of machinery and second pertains to sustaining business loss due to breakdown of machinery. 10. It has not been disputed by the opposite party as would appear from the pleadings made in the affidavit filed on its behalf that the policy is in two parts. Further, it has also not been disputed what is the meaning of quantum, whether quantum means only a part of loss sustained due to machinery breakdown or the quantum includes the loss sustained in business due to breakdown in machinery. It is also not in dispute that the terms and conditions of the policy has not been complied with by the applicant/petitioner and the entire machinery is governed under the aforesaid policy. The only dispute which is to be adjudicated is as to whether the applicant/petitioner is entitled for any claim leading to loss sustained in business due to machinery breakdown or not? 11. The only dispute which is to be adjudicated is as to whether the applicant/petitioner is entitled for any claim leading to loss sustained in business due to machinery breakdown or not? 11. The applicant/petitioner, on that cause, has raised the claim before the opposite party-Insurance Company. First claim pertaining to the breakdown in machinery has been settled and the amount has been paid and the said fact is admitted by both the parties but, the claim pertaining to loss in business due to machinery breakdown comes under the difference pertaining to quantum or not is the sole dispute to be adjudicated. 12. Learned counsel for the opposite party has not raised the issue that the claim which is the subject matter of adjudication is not arbitrable rather the argument has been advanced that the applicant/petitioner is not entitled for such claim, therefore, the matter not be referred before the arbitrator. 13. Position of law is well settled as has been settled in Vidya Drolia & Ors Vs. Durga Trading Corporation, (2021) 2 SCC 1 wherein at paragraph-77, the Hon'ble Apex Court had dealt with the arbitrability of the dispute which is to be adjudicated by the sole arbitrator has laid down the proposition that in case of institution of criminal case issue will be said to non-arbitrabale as they relate to sovereign functions of the State. Further, violation of criminal law is offences against the State not just against the victim. Further, matrimonial disputes relating to the dissolution of marriage, restitution of conjugal rights etc. are not arbitrable as they fall within the ambit of sovereign functions and do not have any commercial and economic value. For ready reference, paragraph 77 of the judgment is quoted hereunder as: “77. Applying the above principles to determine non-arbitrability, it is apparent that insolvency or intracompany disputes have to be addressed by a centralised forum, be the court or a special forum, which would be more efficient and has complete jurisdiction to efficaciously and fully dispose of the entire matter. They are also actions in rem. Similarly, grant and issue of patents and registration of trade marks are exclusive matters falling within the sovereign or government functions and have erga omnes effect. Such grants confer monopoly rights. They are non-arbitrable. Criminal cases again are not arbitrable as they relate to sovereign functions of the State. They are also actions in rem. Similarly, grant and issue of patents and registration of trade marks are exclusive matters falling within the sovereign or government functions and have erga omnes effect. Such grants confer monopoly rights. They are non-arbitrable. Criminal cases again are not arbitrable as they relate to sovereign functions of the State. Further, violations of criminal law are offences against the State and not just against the victim. Matrimonial disputes relating to the dissolution of marriage, restitution of conjugal rights, etc. are not arbitrable as they fall within the ambit of sovereign functions and do not have any commercial and economic value. The decisions have erga omnes effect. Matters relating to probate, testamentary matter, etc. are actions in rem and are a declaration to the world at large and hence are non-arbitrable.” Further, at paragraph 78, the effect of allegation of fraud has been taken into consideration and by doing so it has been laid down that the allegation of fraud can be made a subject matter of arbitration when they relate to a civil dispute. This is subject to the caveat that fraud, which would vitiate and invalidate the arbitration clause, is an aspect relating to non-arbitrability. For ready reference, paragraph 78 of the judgment is quoted hereunder as: “78. In view of the aforesaid discussions, we overrule the ratio in N. Radhakrishnan [N. Radhakrishnan v. Maestro Engineers, (2010) 1 SCC 72 : (2010) 1 SCC (Civ) 12] inter alia observing that allegations of fraud can (sic cannot) be made a subject-matter of arbitration when they relate to a civil dispute. This is subject to the caveat that fraud, which would vitiate and invalidate the arbitration clause, is an aspect relating to non-arbitrability. We have also set aside the Full Bench decision of the Delhi High Court in HDFC Bank Ltd. [HDFC Bank Ltd. v. Satpal Singh Bakshi, 2012 SCC OnLine Del 4815 : (2013) 134 DRJ 566 ] which holds that the disputes which are to be adjudicated by the DRT under the DRT Act are arbitrable. We have also set aside the Full Bench decision of the Delhi High Court in HDFC Bank Ltd. [HDFC Bank Ltd. v. Satpal Singh Bakshi, 2012 SCC OnLine Del 4815 : (2013) 134 DRJ 566 ] which holds that the disputes which are to be adjudicated by the DRT under the DRT Act are arbitrable. They are non-arbitrable.” Further, at paragraph 82 issue of non-arbitrability has been dealt with and it has been stated that issue of non-arbitrability can be raised at three stages; firstly before the court on an application for reference under Section 11 or for stay of the pending judicial proceedings and reference under Section 8 of the Arbitration Act; secondly, before the Arbitral Tribunal during the course of the arbitration proceedings; or thirdly, before the court at the stage of the challenge to the award or its enforcement. For ready reference, paragraph 82 of the judgment is quoted hereunder as: “82. Issue of non-arbitrability can be raised at three stages. First, before the court on an application for reference under Section 11 or for stay of pending judicial proceedings and reference under Section 8 of the Arbitration Act; secondly, before the Arbitral Tribunal during the course of the arbitration proceedings; or thirdly, before the court at the stage of the challenge to the award or its enforcement. Therefore, the question — “Who decides non-arbitrability?” and, in particular, the jurisdiction of the court at the first look stage, that is, the referral stage.” Again, the Hon’ble Supreme Court has laid down at paragraph 147.4 that most jurisdiction accept and require prima facie review by the court on non-arbitrability aspects at the referral stage. But, herein, no such reason is available and that is not the case of the opposite party, therefore, according to the considered view of this Court, it cannot be said to be proper that the dispute is not arbitrable since the stand of the opposite party all along is that the applicant/petitioner is not entitled for the claim pertaining to loss in business due to machinery breakdown. 14. Since the contract pertains to settlement of dispute in case the dispute is not resolved by the parties by appointing arbitrator in case of difference arisen on the ground of quantum to be paid under the policy, therefore, according to the considered view of this Court, the aforesaid quantum is required to be adjudicated. 15. 14. Since the contract pertains to settlement of dispute in case the dispute is not resolved by the parties by appointing arbitrator in case of difference arisen on the ground of quantum to be paid under the policy, therefore, according to the considered view of this Court, the aforesaid quantum is required to be adjudicated. 15. Admittedly, herein, the request to that effect has been made in view of the provision of Section 21 of the Act, 1996 but no such arbitrator has been appointed by the opposite party rather the claim shown to have been rejected by making a communication to the applicant/petitioner. Further, the applicant/petitioner has also sought for details of the break-up of the quantum but no such break-up has been furnished, therefore, the dispute pertaining to loss sustained in business due to machinery breakdown requires adjudication. 16. This Court, on the basis of the discussion made hereinabove and after taking into consideration the stand inter alia taken by the opposite party-Insurance Company, is of the view that whatever objection is being made is of merit and not the arbitrability of the dispute. 17. This Court, therefore, is of the considered view that since the issue of arbitrability is not an issue, as such, this application is required to be allowed. Accordingly, the instant application stands allowed. 18. This Court, has sought for suggestion from the learned counsel for the parties with respect to the name of the arbitrator to be appointed. Learned counsel for the parties have submitted that any former Hon’ble Judge of this Court may be appointed as arbitrator. 19. Accordingly, this Arbitration Application is being disposed of by appointing Hon’ble Mr. Justice (Retd.) N.N. Tiwari, Former Judge of the High Court of Jharkhand, presently residing at F/673, Tiwari Lane, J.C. Road, Burdwan Compound, Ranchi as Arbitrator for resolution of dispute. 20. Let photocopy of the entire pleadings along with copy of the entire order sheet be sent to the learned Arbitrator by the Registry. 21. Both the parties shall co-operate in the hearing before the learned Arbitrator and they shall not ask for any unnecessary adjournment. 22. The instant arbitration application is allowed, accordingly, disposed of.