JUDGMENT : A. Background Facts:- 1. The instant petition has been preferred under Section 11 (6) of the Arbitration and Conciliation Act, 1996 by the petitioner-company who is a member of a Consortium comprising of Pawanshree Foods International Pvt. Ltd. and Nanotrics Innovations Pvt. Ltd. The aforesaid two companies along with the present petitioner company had jointly made a bid for a contract floated by the Department of Medical Health and Family Welfare, Government of Uttar Pradesh, for implementation of Tele Medicine Services in the State of Uttar Pradesh. 2. Proposals were invited and a request for qualification (RFQ) cum (Request for proposal) (RFP) along with instructions to bidder (tender document) inviting bids from bidders for the implementation of telemedicine services in the State of Uttar Pradesh. The said tender document in Clause 2.1.1 permitted the bidder to submit only one technical proposal for video consultation services and/or Tele-Consultation Services and submit separate financial proposals for each cluster for video consultation services and tele-consultation services on E-tender portal. It permitted the bidder to bid as an individual or as a member of Consortium but they were not entitled to submit another bid for the same cluster either individually or as a member of any other Consortium, as the case may be. 3. Clause 2.1.10 instructed that the bidder should submit a power of attorney as per the format set forth in Annexure-C of Appendix-1 authorizing the Signatory to commit the bid. In case if the bidder is a Consortium, the members thereof should furnish a power of attorney in favour of the lead member as per the format set forth in Annexure-D of Appendix-1 duly supported with a chartered document or Board Resolution in favour of the executant. 4. Clause 2.1.14 states that a bidder shall not have a conflict of interest that affects the bidding process and thereafter certain stipulations are mentioned which would affect the bidding process and would be treated to be a conflict of interest. This particular clause also had an explanation which clearly stated that in case a bidder is a Consortium then the term ‘bidder’ as used in this Clause 2.1.14 shall include each member of such Consortium. 5. This particular clause also had an explanation which clearly stated that in case a bidder is a Consortium then the term ‘bidder’ as used in this Clause 2.1.14 shall include each member of such Consortium. 5. Clause 2.2 related to eligibility of bidders and in Clause 2.2.1 (a), it stated that a bidder may be a single entity or a group of entities (the Consortium) coming together to implement the project, however, no bidder applying individually or as a member of a Consortium, as the case may be, can be a member of another bidder. The term ‘bidder’ used herein would apply to both a single entity and a Consortium. 6. Clause (b) of Clause 2.2.1 also stated that a Consortium for being eligible for consideration would be subject to the conditions set out in Clause 2.2.3. which in the instant case, for clarity is being reproduced hereinafter :- “2.2.3 The Bidder (single entity or consortium of entities), may form an SPV. Alternatively, the Bidder (Lead Member in case of Consortium) may itself execute the Service Agreement and implement the Project. In case the Bidder is a Consortium, it should comply with the following additional requirements: (a) Bid should contain the information required for each Member of the Consortium provided number of members of Consortium should not exceed 3(three). (b) Members of the Consortium shall nominate 1 (one) member as the lead member ("Lead Member), who shall have capital investment share of at least 26 % (twenty six per cent) of the Project: (c) The nomination of the Lead Member shall be supported by a Power of Attorney, as per the format set forth in Annexure D of Appendix-l, signed by all the other members of the Consortium, (d) The parties to a Consortium may form an appropriate SPV or itself execute the Project through Lead Member shall sign the agreement with Authority, for and behalf of consortium and other members shall join in signing the agreement as confirming party. In this regard, its clarified that all member of the consortium shall be jointly and severally liable to execute the Project during the contract period, and (e) Members of the Consortium shall enter into a binding Joint Bidding Agreement (the -Joint Bidding Agreement") for the purpose of submitting the Bid. In this regard, its clarified that all member of the consortium shall be jointly and severally liable to execute the Project during the contract period, and (e) Members of the Consortium shall enter into a binding Joint Bidding Agreement (the -Joint Bidding Agreement") for the purpose of submitting the Bid. The Joint Bidding Agreement shall, inter alia: (i) convey the intent to form an SPV with capital investment commitment (s) execute through Lead Member in accordance with this RFP which would enter into the Service Agreement and subsequently carry out all the responsibilities as Service Provider in terms of the Service Agreement. in case the Contract to undertake the Project is awarded to the Consortium (ii) clearly outline the proposed roles and responsibilities of each Member at each stage. (iii) commit the minimum capital investment contribution by each Member, and (iv) include a statement to the effect that all Members of the Consortium shall, till the term of draft Service Agreement in accordance with the Service Agreements, be liable Jointly and severally for all obligations of the Service Providers in relation to the Project. (f) except as provided under this RFP and the Bidding Documents. There shall not be any amendment to the Joint Bidding Agreement without the prior written consent of the Authority. (Note: Joint Bidding Agreement should be submitted along with the Bid. The Joint Bidding Agreement entered into between the members of the Consortium should be specific to the Project and should fulfill the above requirements, failing which the Bid shall be considered non-responsive.” 7. From the perusal of the aforesaid Clause, it would indicate that a bidder either a single entity or consortium of entities may form a SPV (Special Purpose Vehicle). Alternatively, the lead member in case of a Consortium may itself execute the service agreement and implement the project. In case the bidder is a Consortium, it should comply with the additional requirements as provided in Clause 2.2.3 which has already been reproduced hereinabove. 8. Clause 2.2.6 stated that no change in the composition of the Consortium will be allowed subsequent to the submission of the bid during the bidding process. 9. The tender document also contained the prescribed formats in shape of Appendix. 8. Clause 2.2.6 stated that no change in the composition of the Consortium will be allowed subsequent to the submission of the bid during the bidding process. 9. The tender document also contained the prescribed formats in shape of Appendix. However, in the instant case Annexure-B relating to general information of bidder, Annexure-C, power of attorney for signing of bid, Annexure -D-Power of attorney for lead member of Consortium, Annexure-E-relating to the format of bid security (bank guarantee) and Annexure F-joint bidding agreement was also provided including Annexure G which related to the technical capacity of the bidder. 10. It is in the aforesaid backdrop that the petitioner along with Pawanshree Foods International Pvt. Ltd. and Nanotrics Innovations Pvt. Ltd., as a Consortium made a bid for the RFQ-cum-RFP for implementation of Tele-medicine services in the State of Uttar Pradesh. The bid of the Consortium comprising of the petitioner along with Pawanshree Foods International Pvt. Ltd. and Nanotrics Innovations Pvt. Ltd. (with Pawanshree Foods International Pvt. Ltd. being the lead member) was accepted and a service agreement was entered by the lead member of the Consortium with the State of Uttar Pradesh through the Director General, Medical and Health Services, Department of Medical Health and Family Welfare. 11. This agreement dated 30th January, 2019 clearly outlined that the Governor of the State of Uttar Pradesh through the Director General, Medical and Health Services, Department of Medical Health and Family Welfare was referred to as the ‘Authority’ and treated as a first party of the first part of the agreement and M/s Pawanshree Foods International Pvt. Ltd., being the lead member of the Consortium comprising of Consortium members (i) M/s Raster Images Pvt. Ltd. (ii) M/s Nanotrics Innovations Pvt. Ltd. were referred as the Service Provider and party of the second part. The agreement further clarified that for the purposes of the agreement both the Authority and the Service Provider are collectively referred to as the ‘parties’ and individually a ‘ party’. 12. The agreement amongst various conditions/obligations delineated therein also provided a complete Dispute Resolution Mechanism in Article 28. The agreement further clarified that for the purposes of the agreement both the Authority and the Service Provider are collectively referred to as the ‘parties’ and individually a ‘ party’. 12. The agreement amongst various conditions/obligations delineated therein also provided a complete Dispute Resolution Mechanism in Article 28. For the sake of convenience, the entire Article 28 relating to the Dispute Resolution Mechanism is being reproduced hereinafter:- “ARTICLE 28-DISPUTE RESOLUTION 28.1 Dispute resolution 28.1.1 Any dispute, difference or controversy of whatever nature howsoever ansing under or out of or in relation to this Agreement (including its interpretation) between the Parties, and so notified in writing by either Party to the other Party, (the "Dispute") shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 28:2 28.1.2 The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any Dispute. 28.2 Conciliation 28.2.1 In the event of any Dispute between the Parties, either Party may call upon the designated official of the Authority to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Authority, either Party may require such Dispute to be referred to the chairman or any designated official of the Authority and the chairman or any designated official of the board of directors or any equivalent official of the Service Provider for amicable settlement and upon such reference, the said persons shall meet no later than 7 days from the date of reference to discuss and attempt to amicably resolve the Dispute. If such meeting does not take place within the 7 days period or the Dispute is not amicably settled within 15 days of the meeting or the Dispute is not resolved as evidenced by the signing of written terms of settlement within 30 days of the notice in writing referred to in Clause 28.1.1 or such longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Clause 28.3. 28.3 Arbitration 28.3.1 Any Dispute which is not resolved amicably by conciliation, as provided in Clause 28.2, shall be finally decided by reference to arbitration in accordance with Clause 28.3.2. Such arbitration shall be held in accordance with the provisions of the Arbitration Act. The venue of such artistion shall be Lucknow, and the language of arbitration proceedings shall be English 28.3.2 Each Party shall appoint one arbitrange and the two appointed arbitrators shall appoint a third arbitrator, who will be the presiding arbitrator in accordance the Arbitration and Conciliation Act 1996 and any dment thereof, In the event of disagreement between the two arbitrators, the appointment shall be in accordance with the Arbitration and Conciliation Act, 1996 and any amendment thereof. 28.3.3 The arbitrators shall make a reasoned award (the "Award"). Any Award made in any arbitration held pursuant to this Article 28 shall be final and binding on the Parties as from the date it is made, and the Service Provider and the Authority agree and undertake to carry out such Award without delay. 28.3.4 The Service Provider and the Authority agree that an Award may be enforced against the Service Provider and/or the Authority, as the case may be, and their respective assets wherever situated. 28.3.5 This Agreement and the rights and obligations of the Parties shall remain in full force and effect, pending the Award in any arbitration proceeding hereunder.”… 13. From the perusal of the aforesaid Article 28, it would indicate that any dispute, difference or controversy of whatever nature, howsoever arising, under or out of or in relation to this agreement (including its interpretation) between the parties and so notified in writing by either party to the other party (the dispute) shall in the first instance be attempted to be resolved amicably in accordance with the conciliation procedure. 14. In the event of any dispute between the parties, either party is required to call upon the designated official of the Authority to mediate and assist the parties in arriving at an amicable settlement. Failing mediation by the Authority, either party could require such dispute to be referred to the Chairman or any designated official of the Authority and such designated official would enter into such reference and would meet the parties within seven days. Failing mediation by the Authority, either party could require such dispute to be referred to the Chairman or any designated official of the Authority and such designated official would enter into such reference and would meet the parties within seven days. In case if the meeting did not take place within seven days or the dispute is not amicably settled within 15 days of the meeting or the dispute is not resolved as evidenced by signing of the written terms in a settlement within 30 days of notice in writing or such longer period as may be mutually agreed by the parties, then either party may refer the disputes to Arbitration. 15. As per the arbitration clause contained in Clause 28.3.2 each party is entitled to appoint one Arbitrator and the two appointed Arbitrators shall appoint a third Arbitrator who would be the Presiding Arbitrator and the proceedings will be held in accordance with the Arbitration and Conciliation Act, 1996. 16. It is in the aforesaid factual background that M/s Raster Images Pvt. Ltd., the petitioner has approached this Court under Section 11 (6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator on behalf of the respondents with an alternate prayer that the Arbitrator appointed by the petitioner may be permitted to continue as a sole Arbitrator or any other person may be appointed as an Arbitrator. B- Pleadings and Cause of Action:- 17. The petitioner has referred to the Tele-Medicine Service Agreement which has been brought on record as Annexure No. 1 with the petition. In paragraph 9 of the petition, it has been stated that the petitioner had written a letter dated 17.06.2019 informing that the lead member of the Consortium in the agreement had surpassed all conditions and is taking charge of every sector which he is not competent to do and he has unilaterally made a breach of Consortium Agreement as referred to as Annexure -F of the bid document read along with Annexure-B. 18. It is also stated that on account of gross violation, made by the lead member of the Consortium namely M/s Pawanshree Foods International Pvt. Ltd. which could give rise to medico legal cases and since the liability amongst the Consortium members was joint and several, hence, it was in the fitness of things that the respondent would take note of such issues flagged by the petitioner-company as enumerated in its letter dated 17.06.2019 which has been brought on record as Annexure No. 4. 19. The petitioner further requested the respondents to settle the claims and issues which were enumerated by the petitioner in its letter dated 17.06.2019 which was followed by another letter dated 18.09.2019 but the respondent did not refer the matter to the designated authority for resolution of disputes amicably. 20. Since the conciliation as contemplation in Article 28.2 did not materialize, consequently, the petitioner by means of its letter dated 21st of October, 2019 nominated its Arbitrator Mr. Rakesh Kumar. A copy of the said letter has been brought on record as Annexure No. 2. Since there was no response from the side of the respondents, accordingly, the petitioner filed the instant petition claiming the reliefs which have been referred to hereinabove in para 15 above. 21. This Court by means of order dated 31.01.2020 had passed the following order which reads as under:- “Learned counsel for the petitioner has preferred this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996. It has been averred that an agreement was entered between Pawan Shree International Pvt. Ltd. and the respondents dated 13.01.2019. The aforesaid agreement contains a dispute resolution mechanism in Clause-28. It has also been averred that in furtherance of the aforesaid clause, the present petitioner, who is a part of the consortium invoked the conciliation mechanism by means of the letter dated 18.09.2019. Since, the same remained unresolved, therefore, the petitioner again invoked the arbitration clause by means of his notice dated 21.10.2019. Prima-facie, it appears that the dispute is between the consortium members inter-se and not so between the SPV and the respondents. A specific query was put to the learned counsel for the petitioner to explain the aforesaid position for which he seeks time. Accordingly, put up this matter on 12.02.2020. Prima-facie, it appears that the dispute is between the consortium members inter-se and not so between the SPV and the respondents. A specific query was put to the learned counsel for the petitioner to explain the aforesaid position for which he seeks time. Accordingly, put up this matter on 12.02.2020. In the meantime, learned counsel for the petitioner shall also bring on record the agreement entered between the consortium members for creating the SPV as well as the tender documents by which SPV Le. Pawan Shree International Pvt. Ltd., was granted the tender. The aforesaid documents shall be filed by means of a supplementary affidavit prior to the next date as fixed by this Court.” 22. From the pleadings as made in the petition, it would indicate that the petitioner is a consortium member along with Pawan Shree International Pvt. Ltd. and Nanotrics Innovations Pvt. Ltd. and that there are disputes amongst the consortium members inasmuch as certain specific duties/obligations were assigned to each consortium member, however, the same has been usurped by the lead member to detriment of the other members. 23. Noticing the pleadings, this Court at the first blush, noticed that the disputes which have been raised by the petitioner somehow gave a flavour of disputes between the Consortium members inter-se and not so much between the Consortium on one hand and the respondent-Authority on the other. 24. In order to clarify, the Court vide its order dated 31.01.2020 directed the petitioner to bring on record the agreement entered between the Consortium members. Significantly, the said documents were filed by the petitioner only by means of the supplementary affidavit dated 12th August, 2023. 25. In the meantime, the record indicates that no counter affidavit was filed on behalf of the State, though, it was duly represented. There is a clear indication in the order passed by this Court dated 16.11.2021 that despite time having been granted to the learned counsel for the State yet neither any counter affidavit nor any instructions were available with them. 26. There is a clear indication in the order passed by this Court dated 16.11.2021 that despite time having been granted to the learned counsel for the State yet neither any counter affidavit nor any instructions were available with them. 26. In the aforesaid background, in absence of any counter affidavit filed by the State and since the petitioner had also not filed the requisite documents as required of the petition and stated in the order of the Court dated 31.01.2020, accordingly, a coordinate Bench of this Court found that since the Arbitration clause was subsisting and a request for appointment of an Arbitrator has been made which has not been responded, hence, the Court proposed the name of Hon’ble Mr. Justice Brijesh Kumar Srivastava II, a retired Judge of this Court, as a proposed Arbitrator and sought his consent vide order dated 16.11.2021. On 06.12.2021, as the consent from the proposed Arbitrator had been received, consequently, the Court appointed Hon’ble Mr. Justice Brijesh Kumar Srivastava-II a retired Judge of this Court as an Arbitrator on behalf of the respondent. 27. It is at this stage, the lead member of the Consortium M/s Pawanshree Foods International Pvt. Ltd. filed a Review-Application bearing No. 120 of 2022 in the Arbitration Application No. 10 of 2020 seeking recall of the order dated 16.11.2021 and 06.12.2021. 28. After hearing the learned counsel for the parties in the Review-Application, the Court by means of order dated 13.12.2022 allowed the Review-Application and recalled the order dated 16.11.2021 and 06.12.2021 and further provided that the application under Section 11(6) of the Act of 1996 shall now be placed before the appropriate Court. The order in review, dated 13.12.2022, is being re-produced hereinafter for ready reference.. “Heard Sri Mahendra Pratap Singh, learned counsel for the applicant, Sri Vivek Shukla, learned Addl. C.S.C. and Sri Debashish Moitra, learned counsel for the opposite parties. On 14.10.2022, this Court had passed the following order:- "Heard Mr. Mahendra Pratap Singh, learned counsel for the review-applicant and Mr. Debashish Moitra, Ms. Viha Shankar and Mr. Pravin Kumar Verma, learned counsel for the opposite parties. C.S.C. and Sri Debashish Moitra, learned counsel for the opposite parties. On 14.10.2022, this Court had passed the following order:- "Heard Mr. Mahendra Pratap Singh, learned counsel for the review-applicant and Mr. Debashish Moitra, Ms. Viha Shankar and Mr. Pravin Kumar Verma, learned counsel for the opposite parties. After hearing counsel for the parties, what comes out is firstly that the Review Application seeking review of an order passed in the proceedings under Section 11 (6) of the Arbitration and Conciliation Act, 1996 is maintainable in view of Para 12 of the judgment dated 05.04.2021 rendered by Hon'ble the Supreme Court in Special Leave Petition (C) No. 4820 of 2021; Mohd. Anwar and Ors. Vs. Pushplata Jain and Ors., Jain Studios Ltd. v. Shin Satellite Public Co. Ltd.; (2006) 5 SCC 501 and Municipal Corporation of Greater Mumbai and Anr. Vs. Pratibha Industries Limited and Ors.; (2019) 3 SCC 203 and, secondly while filing the application under Section 11 (6) of the Act, the applicant did not implead the other two Members of the Consortium i.e. the lead Member who has filed the Review Application and other Member, namely, M/s Nanotricks Innovations Private Limited. This would also have not affected the order, but for the arbitration clause according to which a three member Arbitral Tribunal is to hold arbitration proceedings. As the Government had not appointed its Arbitrator in spite of a notice by the applicant, therefore, this Court appointed an Arbitrator under Section 11 (6) of the Act, leaving it open for the Arbitrator appointed by the applicant and the Arbitrator appointed by this Court to appoint the third Arbitrator. Now, in this scenario, the counsel appearing for the applicant seeking review says that what about his client's right to appoint an Arbitrator. Likewise the third Member of the Consortium referred hereinabove, therefore, this has resulted in a complication on account of non impleadment of two Members of the Consortium by the applicant and passing of an order behind their back in the proceedings under Section 11 (6) of the Act, which renders the order under Review apparently erroneous, especially as there appears difference between the Consortium Members. However, at this stage, counsel for the original applicant who is respondent in the review application, M/s Raster Images Private Limited says that the third Member would also appear before the Court on the next date and accordingly the Arbitrator be appointed replacing its Arbitrator. Let the applicant implead the third Member of the Consortium i.e. M/s Nanotricks Innovations Private Limited as a party in the review application, even if it was not a party in the original application so as to facilitate the aforesaid exercise. Mr. D. Moitra, learned counsel who has appeared on behalf of the original applicant does not have any objection to such impleadment. Issue notice to newly impleaded opposite party. Let this matter come up on 16.11.2022. The interim arrangement made earlier shall continue till next date of listing." The Court had categorically held that review application even in a proceedings under Section 11(6) of the Arbitration and Conciliation Act, 1996 is maintainable in view of decisions of Hon'ble the Supreme Court, thereafter, this Court had pointed out error which had occurred while passing the final order in the proceedings. The Court would have disposed of the review application on the earlier date itself but one of the necessary parties had not been impleaded. In the review application, the third member of the consortium, lead member being the applicant seeking review, and the other member being the respondent herein who was original applicant in the proceedings under Section 11(6) of the Act, 1996, is present today. The third member of the consortium is represented by Sri Vivek Kumar, Advocate who has filed his Vakalatnama. Considering the error already pointed out in the earlier order dated 14.10.2022, especially as, necessary parties were not impleaded and they were not heard and there is difference of opinion between the consortium members themselves, this Court is of the opinion that the order dated 06.12.2021 passed in Arbitration Application No.10 of 2020 [Raster Images Pvt. Ltd. vs. State of U.P. & Anr.] needs to be recalled. It is hereby recalled. Consequences shall follow accordingly. The proceedings are restored to its original number. The application under Section 11(6) of the Act, 1996 shall now be placed before the appropriate Court which has been assigned such matters, on 19.12.2022. Accordingly, the application for review is allowed in the aforesaid terms.” 29. It is hereby recalled. Consequences shall follow accordingly. The proceedings are restored to its original number. The application under Section 11(6) of the Act, 1996 shall now be placed before the appropriate Court which has been assigned such matters, on 19.12.2022. Accordingly, the application for review is allowed in the aforesaid terms.” 29. It is in this background that the matter came up before this Court and once again the Court by means of order dated 09.08.2023 had required the learned counsel for the petitioner to address the Court on the maintainability of the present petition. It is thereafter that the petitioner filed a supplementary affidavit dated 12th August, 2023 and 23rd August, 2023 by which it brought on record the joint bidding agreement, the tender document and certain other letters which will be referred to at a later stage. The petitioner brought on record the orders which were passed by the Arbitral Tribunal which was constituted in furtherance of the order dated 06.12.2021. 30. This Court further notices that despite adequate time was given to the State to respond, unfortunately, neither any counter affidavit was filed nor there was any assistance on part of the State. On one occasion i.e. on 21.08.2023 the Director of the respondent was also called to assist the Court, however, even that attempt was futile as neither the Director nor the Standing Counsel could answer the query of the Court and in the aforesaid backdrop mere cosmetic submissions were made by the State which were of no help and it is disappointing to note how the State conducts its case as it is practically a case of no contest from the side of the respondent. C: Submissions on behalf of the petitioner:- 31. Mr. Debasish Moitra along with Mr. Vibhu Shankar, learned counsel, for the petitioner has made the following submissions:- (a) The RFQ-cum-RFP permitted a Consortium to participate in the tender and make its bid. The Consortium members comprising of M/s Pawanshree Foods International Pvt. Ltd., M/s Raster Images Pvt. Ltd. (the petitioner herein) and M/s Nanotrics Innovations Pvt. Ltd. had entered into an agreement with the respondent on 30th January, 2019. The Consortium members comprising of M/s Pawanshree Foods International Pvt. Ltd., M/s Raster Images Pvt. Ltd. (the petitioner herein) and M/s Nanotrics Innovations Pvt. Ltd. had entered into an agreement with the respondent on 30th January, 2019. It is urged that since the Consortium was required to make a SPV (Special Purpose Vehicle) for the purpose of implementing the project and each Consortium member had been assigned specific roles but in violation thereof the lead member M/s Pawanshree Foods International Pvt. Ltd. was unilaterally executing the projects and was also involved in certain undesirable practices which would harm the project as a whole, coupled with the fact that the petitioner being a member of Consortium, though, had no role or involvement in such undesirable practices yet would be unnecessarily implicated as the agreement provided for joint and several liabilities of Consortium members. This was an issue of concern to the petitioner and it was appropriately flagged with the respondent-Authority but it did not meet any favourable response. (b) It is further contended that instead of remedying the situation, the respondent were perhaps were in cahoots with the lead member and turned a nelson’s eye. It was necessary for the respondent-authority to have discharged its obligations by settling the disputes and the issues which were flagged by the petitioner rather than to let the situation go out of control. (c) It is thus, submitted that on one hand, the petitioner had amplified the gross violations made by the lead member of the terms and conditions, as agreed, and had requested for an amicable settlement which was ignored by the Authority but on the other hand, a letter was issued, by the respondent Authority cautioning the members of the Consortium including the petitioner that since the work was not being done in accordance with the agreement, the Authority would take action which would be against the Consortium Members both jointly and severally. (d) In the aforesaid backdrop, the petitioner had invoked the arbitration clause and nominated its arbitrator and requested the Authority to appoint its own which was not acceeded, hence, the petition. (e) It is also submitted that in the RFQ-cum-RFP tender document in Clause 2.1.14 and the explanation appended thereto, clearly stated that in case a bidder is a consortium then the term ‘bidder’ as used in Clause 2.1.14 shall include each member of such Consortium. (e) It is also submitted that in the RFQ-cum-RFP tender document in Clause 2.1.14 and the explanation appended thereto, clearly stated that in case a bidder is a consortium then the term ‘bidder’ as used in Clause 2.1.14 shall include each member of such Consortium. It is sought to be emphasized by Mr. Moitra, that from the perusal of the entire document as well as the tele-medicine service agreement, it would indicate that each and every member of the Consortium had a right to call upon the other party, i.e. the Authority to resolve any dispute which was arising out of and of whatever nature from the Tele-medicine Service Agreement, as the arbitration clause was widely worded. (f) It is urged that the issues which were brought to the notice of the respondent-authority were all such issues which arose from the Service Agreement dated 30th January, 2019 and consequently since each party had a right to invoke the Dispute Resolution Mechanism which included the petitioner as well, consequently, the petitioner invoked the Dispute Resolution Mechanism, which failed and now the said Company is before the Court in terms of Section 11(6) of the Act of 1996. (g) Mr. Moitra, has further referred to the supplementary affidavit dated 23rd August, 2023 and has referred to the order which was passed by the Arbitral Tribunal dated 02.06.2022 whereby on an application moved by M/s Pawanshree Foods International Pvt. Ltd. the lead member had sought its impleadment before the Arbitral Tribunal. Reference was also made to an order dated 24.05.2022 whereby this Court while entertaining the Review-Application of the lead member M/s Pawanshree Foods International Pvt. Ltd. had granted time to the respondents to file their response to the review-application. It was urged that the Arbitral Tribunal on 02.06.2022 allowed the application for impleadment of M/s Pawanshree Foods International Pvt. Ltd. and it was directed to be impleaded as respondent no. It was urged that the Arbitral Tribunal on 02.06.2022 allowed the application for impleadment of M/s Pawanshree Foods International Pvt. Ltd. and it was directed to be impleaded as respondent no. 2 and later by the order dated 06.07.2022 the Tribunal further kept for consideration the application for impleadment moved by M/s Nanotrics Innovations Pvt. Ltd. (h) The learned counsel for the petitioner has also drawn the attention of the Court to certain letters which were written by the petitioner dated 23rd August, 2019 addressed to the respondents as well as letter dated 22.06.2021 written by M/s Nanotrics Innovations Pvt. Ltd. addressed to the respondents also flagging concerns regarding violation of the conditions by the lead member which was similar to the ones raised by the petitioner-company. With the aid of the Clauses in the agreement and the documents as referred in the petition and in the two supplementary affidavits, the thrust of the submission is that apparently disputes had emerged between the parties (which collectively meant the members of the Consortium and the respondent) and according to Article 28 each party had a right to invoke the Dispute Resolution Mechanism and since the same did not bear any fruitful result, consequently, the Arbitrator appointed by the petitioner may proceed as a sole Arbitrator or in the alternate an Arbitral Tribunal be constituted in accordance with the provisions contained in the agreement. In support of his submissions, Mr. Moitra, has relied upon the decision of the Apex Court in Bharat Sanchar Nigam Ltd. and Another Vs. Nortail India Pvt. Ltd.; (2021) 5 SCC 738 ; State of Kerala Vs. Zoom Developers Pvt. Ltd.; (2009) 4 SCC 563 and a decision of the Telangana High Court in Tecpro Systems Ltd. Vs. Telangana State Power Generation Power Ltd. ; 2019 SCC Online TS 1658. (i) Relying upon the aforesaid decisions, it is urged by Mr. Moitra, that Section 11 (6-B) of the Arbitration and Conciliation Act, 1996 has not been amended by the 2019 amendment as introduced in the Act, accordingly, the High Court does not exercise any judicial power that may determine the maintainability of the petition, existence or validity of the arbitration agreement which is to be left to be decided by the Arbitral Tribunal as held in para 37.1 of Nortal India Pvt. Ltd. (supra). (j) While referring to the decisions in Zoom Developers Pvt. Ltd. (supra), it is urged that since responsibilities and work stood demarcated between the members of the Consortium, it would entitle each member of the Consortium to raise the grievance and so also in the instant case, as indicated in the joint bidding agreement dated 17th August, 2018, each Consortium member had separate responsibilities assigned, hence, any aggrieved member could raise the issue. (k) While relying upon the decision of Tecpro System Ltd. (supra), it is urged that it has been held in the said case that any member of a Consortium can invoke the Arbitration Clause and thus the petitioner being a member of Consortium is entitled to invoke the Arbitration Clause and any disputed or contentious matter can be left for adjudication before the Tribunal. (l) The petitioner has been able to establish that the Arbitration Clause, its due invocation as envisaged in the agreement and that the petitioner is a party to the said agreement and practically there is no opposition from the other side, in all the aforesaid circumstances, the petition deserves to be allowed and the Arbitral Tribunal be constituted. D- Discussions and Analysis:- 32. The Court has given its thoughtful consideration to the submissions made by the learned counsel for the appellant and also perused the record. 33. At the outset, it may be noticed RFQ-cum-RFP document permits a bidder who may be a single entity or a group of entities which is referred to as the Consortium therein for coming together to implement the project. The reference made by Mr. Moitra, learned counsel for the petitioner to the explanation appended to Clause 2.1.14, if seen, would reveal that is confined to the word ‘bidder’ in context with the said Clause 2.1.14 only and it relates to the stipulations for a bidder to not have a conflict of interest and certain enumerations have been made in the said clause which would be treated as conflict of interest and thus in order to clarify the same, the explanation has been appended to mean that a bidder would include each and every member of such Consortium. 34. The Tele-medicine Service Agreement, if seen, would reveal that it envisages two party regime. 34. The Tele-medicine Service Agreement, if seen, would reveal that it envisages two party regime. One is the State of Uttar Pradesh who has been referred to in the said agreement as the Authority and the other is the Service Provider i.e. M/s Pawanshree Foods International Pvt. Ltd. as the lead member of the Consortium comprising of the members namely the petitioner and M/s Nanotrics Innovations Pvt. Ltd. are referred to as the Service Provider and a party of the second part. The said agreement clarifies that the word ‘Authority’ and the ‘Service Provider’ are collectively referred to as the parties and individually as a party. 35. The Court has also taken note of the letters which have been brought on record along with the petition as Annexure No. 4 which cumulatively refers to letters dated 17th June, 2019 and 29th June, 2019. Considering the letter dated 17th June, 2019 which is addressed to the respondent, the petitioner in paragraph 3, 4, 5, 6 and 7 has raised disputes stating that Mr. Anoop Bardia who has signed the Service Agreement as an authorized person holding power of attorney for and on behalf of all the Consortium members is not authorized since the petitioner and the other Consortium member had granted the power of attorney to Mr. Shashank Jain, the C.O.O. of M/s Pawanshree Foods International Pvt. Ltd. and not to the person who has signed the agreement for the Consortium. It was also alleged that the respondent was granting undue favours to M/s Pawanshree Foods International Pvt. Ltd. to the exclusion of the other Consortium members. 36. It was also alleged that the diagnostic kits which were supplied were not from a reliable vendor and was against the role and responsibilities assigned to the Consortium members. It was requested that the Telemedicine Service Agreement signed by Anoop Bardia representing himself on behalf of the other Consortium members was being violated, hence, the service contract be cancelled. The lead member be required to form the SPV and get a revised service agreement signed with the SPV only. It was requested that the Telemedicine Service Agreement signed by Anoop Bardia representing himself on behalf of the other Consortium members was being violated, hence, the service contract be cancelled. The lead member be required to form the SPV and get a revised service agreement signed with the SPV only. It was also requested that the bank guarantees may be accepted from each member of the Consortium in ratio of the stake held by such Consortium Member in the project and the respondent should not permit the project to be executed by an entity who is not a party to the agreement and that no money should be released in favour of M/s Pawanshree Foods International Pvt. Ltd. as they had breached the service agreement. 37. It is in context that the disputes have been raised and it was in the aforesaid background that the Court had required the learned counsel for the petitioner to address on the maintainability of the petition, as the disputes prima facie were amongst the members of the Consortium inter-se. 38. Article 28 of the service agreement would also be relevant to be read and the same has already been reproduced hereinabove in the previous paragraphs. The said article would reveal that it refers to the word “parties” and “party” which has been clarified in the beginning of the service agreement itself. If the two i.e. ‘Parties’ and ‘party’ are read in context with Article 28 and also for the appointment of an Arbitrator, it would reveal that as per the agreement each party is required to appoint its own nominee Arbitrator. This further indicates that in the two party regime the respondent-Authority is taken as a one party and the members of the Consortium on the other hand are taken collectively as the other party. It is for the said reason that the Arbitration Clause provides that the Authority would nominate its own Arbitrator while the Consortium members, being one entity collectively, would appoint one Arbitrator and the two such party nominated Arbitrators would appoint a Presiding Arbitrator. 39. It is for the said reason that the Arbitration Clause provides that the Authority would nominate its own Arbitrator while the Consortium members, being one entity collectively, would appoint one Arbitrator and the two such party nominated Arbitrators would appoint a Presiding Arbitrator. 39. At this stage, it will also be relevant to notice the joint bidding agreement which has been brought on record as Annexure-7 to the supplementary affidavit dated 12th August, 2023 and a conjoint reading of the same would indicate that the members of the Consortium amongst themselves are treated as one party and the Authority is treated as the other party. 40. Thus, putting things together, it clearly indicates that, though, the Consortium members are three separate entities who have come together, willingly, to bid as a single entity is to be treated as one bidder. The Consortium comprising of three entities in so far as its jural relations with the Authority (as referred to in the agreement) is concerned is that of collective, one entity. It is for the said reason that the liability of the Consortium members is joint and several qua the Authority. 41. The Authority had invited the bids from an individual or a firm or a Consortium and the idea behind is clear that even more than one entity can get together a form a Consortium and bid as one collective bidder treated as a single entity. It further provides that the Consortium on being declared a successful bidder may form a SPV and alternatively the lead member in the case of Consortium may itself execute the service agreement and implement the project which does gives credence to the fact that the members of the Consortium may be separate entities but in so far as the contract is concerned, it still remains a two party regime between the Authority and the Service Provider. 42. Thus, all the relevant Clauses as noticed above in the agreement as well as in the joint bidding agreement signed between the members of the Consortium and submitted to the Authority as part of the bid unequivocally indicates that as far as the Authority is concerned, it treats the Consortium as one entity and a single bidder. On being successful, it is at the discretion of the members of the Consortium to form a SPV, alternatively, the lead member would be entitled to sign the service agreement. On being successful, it is at the discretion of the members of the Consortium to form a SPV, alternatively, the lead member would be entitled to sign the service agreement. 43. Admittedly, in the instant case M/s Pawanshree Foods International Pvt. Ltd. is the lead member of the Consortium who signed the agreement. The respondent-authority is not obliged to deal with the members of the Consortium separately nor such a situation is contemplated from the meaningful reading of the bidding document alongwith the Appendix and annexure. 44. At this stage, this Court gainfully refers to a decision of the Delhi High Court in ITD Cementation India Ltd. Vs. SSJV-Joint Venture and Others; 2023 (2) SCC Online Delhi 1391 wherein the various facets of joint venture and the like such as a Consortium has been discussed in detail and it also strengthens the view taken by this Court. The relevant portion of the said decision read as under:- “6. Dr George while explaining the concept of a joint venture firstly relied upon a judgment rendered by the Division Bench of the Gujarat High Court in Asia Foundations & Constructions Ltd. v. State of Gujarat, 1985 SCC OnLine Guj 93]. While rendered in the context of a tendering process that was assailed, the said High Court described the essential attributes of a joint venture in the following terms— 47. The different Forms ‘A’ to ‘G’ which have been referred to in the facts narrated hereinabove containing requisite particulars to be furnished by the applicants seeking prequalification, inter alia, relate to joint venture also. The particulars which are to be furnished in Form ‘C’ relating to joint venture consist of: (1) name and address of joint venture; (2) name and address of all the partners of joint, venture; (3) the responsibility of the firm leading the joint venture and the responsibility of the other joint venture partners; (4) the name of bankers; and (5) the financial participation of each firm in the joint venture. Thus, it is clear that in case of a group of firms, the applicant has to give, more particulars which have been set out above, namely, which firm will be responsible for applying for and submission of tender and for completion of the contract document, and also the responsibility of the lead firm as well as other member—firms is to be clearly stated. The effect of the conjoint reading of the memorandum of instructions and information as well as the forms in which the particulars were to be furnished clearly indicates that the authorities had visualised and envisaged the group of firms as well as the joint venture consortia as different entities which could seek pre-qualification. It appears from the particulars which are required to be furnished in Form ‘C’ that the authorities envisaged that there may be cases of joint venture consortia where one of the partner firms may have a leading role to play, and the responsibility of their joint venture partners may not be so leading and important. It is in respect of such cases that the particulars are to be furnished about the responsibility of the firm leading the joint venture, and the responsibility of the other partners thereof. The legal concept of the joint venture is very well recognised, and we do not think that the authorities in these High Powered Committees can be oblivious of this recognised legal concept. If they are, they have completely misdirected themselves. The common law did not recognise the relationship of co-adventures but with the passage of time, the judicial decisions recognised what is known as ‘joint adventure’ of two or more persons undertaking to combine, their property or labour in conduct of particular line of trade or a general business for joint profits. The courts do not treat a joint adventure as identical with a partnership though it is so similar in nature, and in the contractual relationship created by such adventurers that the rights as between them are governed practically by the same rules that govern the partnership. This relationship has been defined to be a special combination of persons undertaking jointly some specific adventure for profit without any actual partnership. It is also described as a commercial or a maritime enterprise undertaking by several persons jointly; a limited partnership not limited in the statutory sense as to the liabilities of partners but as to its scope and duration. It is also described as a commercial or a maritime enterprise undertaking by several persons jointly; a limited partnership not limited in the statutory sense as to the liabilities of partners but as to its scope and duration. Generally speaking the distinction between a joint adventure and a partnership is that former relates to a single transaction ‘though it may comprehend a business to be continued over several years' while the later relates to a joint business of a particular kind (see: 48 American Law Reports at p. 1055 under the caption ‘what amounts to a joint adventure’ at pp. 1056-57 and 1060). It is generally agreed that in order to constitute a joint venture, there must be community of interest and right to joint control. It is recognised on authority that each of the parties must have an equal voice in the matter of its performance and control over the agencies used therein, though one authority may entrust the performance, to another. There, is also an authority to the effect that a joint venture may exist although the parties have unequal control of operations. The rights, duties and liabilities of joint venturers are similar or analogous to those which govern the corresponding rights, duties and liabilities of the partners. As in the case of partners, joint venturers may be jointly and severally liable to third parties for the debts of the venture (see: American Jurisprudence, 2nd Edn., Vol. 46, para 12 at pp. 33-34 and para 57 to p. 76). Joint venture groups are internationally recognised in form of cooperation in the joint fulfilment of the construction contract obligations. Joint venture groups in the construction, industry come about through agreements for combination of legally independent contractors for the joint rendering of construction services limited in both time and content. Typically they are restricted to a single project in which case the members of the group act jointly at both the tendering and award stages. Joint venture groups are generally unincorporated associations. The legal systems in general have not kept pace with the growing economic means of joint venture groups and there is no special legal form for this type of cooperation which has come to stay in construction industry. However, in Australia and Germany, joint venture groups as also unincorporated civil law partnerships are subjected to law of partnership. The legal systems in general have not kept pace with the growing economic means of joint venture groups and there is no special legal form for this type of cooperation which has come to stay in construction industry. However, in Australia and Germany, joint venture groups as also unincorporated civil law partnerships are subjected to law of partnership. In United States also the law of partnership is applied to joint venture consortia. It is only in France that a special legal form has been created in this behalf. The joint venture groups have got, inter alia, the characteristics of joint organisation, joint action through cooperation of all members of all individual persons acting on the instructions of the members, and joint liability for rendition of services to third parties, and the relation between the partners inter se to be governed according to the joint venture group agreements. The economic importance of joint venture consortia on the one hand, and absence of specific legal provisions on the other has raised a host of problems of interpretation in individual cases since a wide variety of model contracts and preprinted contract forms are adopted to suit the needs and convenience of a particular construction project. These problems have direct effect on the partners inter se and indirect effect on the third parties, such as customers. If several construction enterprises tender jointly and have been jointly awarded the construction contract, they are obliged to perform the contract jointly as joint venture group. One of the difficult problems which is likely to arise when a construction contract is about to be entered into since the customer when concluding the contract with a joint venture is dealing with all the members of the group, who are jointly committed to rendering the services. The contract has, therefore, to be concluded by an authorised representative of all the members of such a group en-bloc for the simple reason that joint venture groups are unincorporated associations. The services to be rendered by the group are to be allocated amongst the members of the same by internal agreement, and consequently the rights and duties of the members inter se are also regulated by the group agreement. These internal agreements are not effective vis-à-vis the third parties, and they operate amongst the members inter se. The services to be rendered by the group are to be allocated amongst the members of the same by internal agreement, and consequently the rights and duties of the members inter se are also regulated by the group agreement. These internal agreements are not effective vis-à-vis the third parties, and they operate amongst the members inter se. Thus, all the members are jointly and severally liable for performance of the construction work jointly undertaken irrespective of internal division of the work. If one member of the joint venture group does not fulfil his commitments, the others are under joint and several obligation to carry out such obligations vis-à-vis the customer. Such a situation may arise when a member of a joint venture group drops out prematurely because of the liquidation or insolvency. When a contract is concluded with a joint venture group all members are made jointly and severally liable even if only one is capable of rendering the service in question. The joint and several liabilities of the members of a joint venture group may cover the marginal areas of the contract performance such as late performance, faults, deficiency of goods and services, etc. It is, therefore, very necessary while entering into such contracts with joint venture group that the construction contracts are carefully drafted, and the members of such group must also enter into detailed agreements amongst themselves, (see: Article on Joint Venture Groups — Effects of Construction Contract: Dr Manfred Straube, Professor of Commercial Law, Technical University, Vienna in ‘International Business Lawyer’, March 1985, a monthly published by a section of Business Law of International Bar Association, London). 48. In India, a person can become a partner with another person in a particular adventure or undertaking (see: Section 8 of the Partnership Act, 1932). This is described as a particular partnership also since it is confined to a particular adventure or undertaking, or it may be one limited even to a particular advantage or undertaking or an isolated transaction in course of trade or business. However, the three elements of partnership, namely, agreement, business and mutual agency must exist as a matter of course. This is described as a particular partnership also since it is confined to a particular adventure or undertaking, or it may be one limited even to a particular advantage or undertaking or an isolated transaction in course of trade or business. However, the three elements of partnership, namely, agreement, business and mutual agency must exist as a matter of course. The only difference between such partnership in nature of joint venture and an ordinary partnership is that in joint venture partners incur no responsibility beyond the limits of the particular adventure or business or undertaking and the rights and obligations are, therefore, less extensive than those of partners in ordinary partnership (see: Karmali Abdulla Allarakhia v. Vora Karimji Jiwanji, 1914 SCC OnLine PC 75 : ILR (1915) 39 Bom 261 : AIR 1914 PC 132 ]).” 7. The views as expressed in Asia Foundations were reiterated again by the Gujarat High Court in Continental Construction Ltd. v. State of Gujarat, 1986 SCC OnLine Guj 16 as would be evident from the following observations as appearing in para 14 of the report: “14. It should not be lost sight of that internal agreements between the members of a joint venture group are not generally effective vis-à-vis the third parties, and they merely constitute the basis for mutual services and entitlements within the joint venture group. The members of joint venture are jointly and severally liable for performance of the construction work jointly undertaken irrespective of the internal division of work. If a member of a joint venture group does not fulfil his commitments, the other members thereof are under obligation to provide the missing services to the customer. If the customer enters into a contract with a joint venture group, it increases the liability of the members of the joint venture for due performance of the construction work. As noted above, when a contract is concluded with a joint venture group, all members are made jointly and severally liable, even if only one is capable of rendering the services in question. The justification for such liability is the possibility of bringing pressure to bear on a member of the group in order to induce him to render his share of the services or, if necessary, to arrange for a substitute. The justification for such liability is the possibility of bringing pressure to bear on a member of the group in order to induce him to render his share of the services or, if necessary, to arrange for a substitute. Of course, members of a joint venture group who do not fulfil their commitments remain liable to co-share to indemnify their co-venturers (see: Articles on Join Venture Groups). The joint and several liability of co-venturers is not only for the execution of the works but also in respect of any claims for damages by the customer and in respect of all joint financial commitments to suppliers, planners and architects and also in respect of fees, dues, penalties or other payments to public authorities. In any case the internal agreements regarding liability have no force vis-à-vis third parties.” 8. Dr George also drew the attention of the court to the decision of the Supreme Court in New Horizons Ltd. v. Union of India, (1995) 1 SCC 478 which explained the concept of a joint venture in the following terms: (SCC pp. 493-495, paras 24 to 26) “24. The expression ‘joint venture.’ is more frequently used in the United States. It connotes a legal entity in the nature of a partnership engaged in the joint undertaking of a particular transaction for mutual profit or an association of persons or companies jointly undertaking some commercial enterprise wherein all contribute assets and share risks. It requires a community of interest in the performance of the subject-matter, a right to direct and govern the policy in connection therewith, and duty, which may be altered by agreement, to share both in profit and losses. (Black's Law Dictionary, 6th edn., p. 839). According to Words and Phrases, Permanent edn., a joint venture is an association of two or more persons to carry out a single business enterprise for profit (p. 117, Vol. 23). A joint venture can take the form of a corporation wherein two or more persons or companies may join together. A joint venture corporation has been defined as a corporation which has joined with other individuals or corporations within the corporate framework in some specific undertaking commonly found in oil, chemicals, electronic, atomic fields. 23). A joint venture can take the form of a corporation wherein two or more persons or companies may join together. A joint venture corporation has been defined as a corporation which has joined with other individuals or corporations within the corporate framework in some specific undertaking commonly found in oil, chemicals, electronic, atomic fields. (Black's Law Dictionary, 6th edn., p. 342.) Joint venture companies are now being increasingly formed in relation to projects requiring inflow of foreign capital or technical expertise in the fast developing countries in East Asia viz. Japan, South Korea, Taiwan, China, etc. [see Jacques Buhart: Joint Ventures in East Asia — Legal Issues (1991).] There has been similar growth of joint ventures in our country wherein foreign companies join with Indian counterparts and contribute towards capital and technical knowhow for the success of the venture. The High Court has taken note of this connotation of the expression ‘joint venture’. But the High Court has held that NHL is not a joint venture and that there is only a certain amount of equity participation by a foreign company in it. We are unable to agree with the said view of the High Court. 25. As noticed earlier, in its tender NHL had stated that it is a joint venture company established by TPI, LMI and WML and IIPL wherein TPI, LMI and WML and other companies in the same group as well as Mr Aroon Purie own 60% shares and IIPL owns 40% shares. It was also stated that the joint venture has received approval of the Government of India and is currently in operation and that the promoter will increase their capital/contribution to commensurate with the project need and that the company has been established as an information and database management company with expertise in database processing, publishing, sales/marketing and the dissemination of related information. In the tender it is also stated that as a joint venture in the true sense of the phrase, the company will have access to expertise in database management, sales and publishing of its parent group companies. In the tender it is also stated that as a joint venture in the true sense of the phrase, the company will have access to expertise in database management, sales and publishing of its parent group companies. It would thus appear that the Indian group of companies (TPI, LMI and WML) and the Singapore-based company (IIPL) have pooled together their resources in the sense that TPI, LMI and WML have made available their equipment and organisation at various places in the country while IIPL has made available its wide experience in the field as well as the expertise of its managerial staff. All the constituents of NHL have thus contributed to the resources of the Company (NHL). This shows that NHL is an association of companies jointly undertaking a commercial enterprise wherein they will all contribute assets and will share risks and have a community of interest. We are, therefore, of the view that NHL has been constituted as a joint venture by the group of Indian companies and IIPL, the Singapore-based company and it would not be correct to say that IIPL which has a substantial stake in the success of the venture, having 40% of shareholding, is a mere shareholder in NHL. 26. Once it is held that NHL is a joint venture, as claimed by it in the tender, the experience of its various constituents, namely, TPI, LMI and WML as well as IIPL had to be taken into consideration if the Tender Evaluation Committee had adopted the approach of a prudent businessman.” 9. A more detailed exposition on the concept of a joint venture is found in corpus juris secundum, which defines the nature of such enterprises in the following terms: “A. Definition and Nature of Joint Ventures Research References A.L.R. Library A.L.R. Index, Joint Ventures West's A.L.R. Digest, Joint Adventures — 1, 1.1, 1.13 § 1 Generally Research References West's Key Number Digest, Joint Adventures — 1, 1.1, 1.13 A joint venture is a legal relation created by the American courts and is generally described as an association of two or more persons to carry on a single business enterprise for profit. ‘Joint venture’ a term used interchangeably and synonymous with ‘joint adventure’ or coventure, has been defined as a special combination of two or more persons wherein some specific venture for profit is jointly sought without any actual partnership or corporate designation. ‘Joint venture’ a term used interchangeably and synonymous with ‘joint adventure’ or coventure, has been defined as a special combination of two or more persons wherein some specific venture for profit is jointly sought without any actual partnership or corporate designation. It features an association of two or more persons to carry out a single business enterprise for profit or a special combination of persons undertaking jointly some specific adventure for profit, for which purpose they combine their property, money, effects, skill, and knowledge. A joint venture or enterprise has also been defined as being in the nature of a partnership and existing when two or more persons contribute cash, labor, or property to a common fund with the intention of entering into some business or transaction for the purpose of making a profit to be shared in proportion to the respective contributions. Under yet another definition, a joint venture is created when parties contribute money, property, knowledge, skill, or other assets to a common undertaking; the parties have a joint property interest in the subject-matter of the venture and a right of mutual control over management; the parties have expectations of profits or presence of venture; the parties are given the right to participate in profits; and the objective of the parties is limited to a single undertaking. In fact, no exact definition can be given of a joint venture, and the decisions have not established any fixed or certain boundaries to the legal concept of joint venture. Rather, the answer in each case depends largely upon the intent of the alleged parties as manifested from the facts and circumstances involved in each particular case, the terms of the agreement, the acts of the parties, the nature of the undertaking, and other facts. Among the acts or conduct which are indicative of a joint venture, no single one of which is controlling in determining whether a joint venture exists, are: (1) joint ownership and control of property; (2) sharing of expenses, profits and losses, and having and exercising some voice in determining division of net earnings; (3) community of control over, and active participation in, management and direction of business enterprise; (4) intention of parties, express or implied; and (5) fixing of salaries by joint agreement. A joint venture or joint adventure is not based on any statute and is purely a creature of American courts. Participants. A joint venture or joint adventure is not based on any statute and is purely a creature of American courts. Participants. The participants in a joint venture or adventure are coventurers, co-adventurers, or, more commonly, joint adventures. § 2 Joint enterprise Research references West's Key Number Digest, Joint Adventures —1, 1.1, 1.13 The term ‘joint enterprise’ may be used interchangeably with joint venture although a distinction often is made in that joint ventures apply to business ventures while joint enterprises do not. A joint enterprise has been defined as an informal association of two or more persons, partaking of the nature of a partnership, usually, but not always, limited to a single transaction in which the participants combine their money, efforts, skill, and knowledge for gain, with each sharing in the expenses and profits or losses. ‘Joint enterprise’ is not a status created by law but is a contractual relationship of mutual agency employed to represent unity between persons in pursuit of common purpose as the result of which negligence of one member of the unity may be imputed to another. A joint enterprise is created when the following factors are established: (1) an agreement, express or implied, among members of a group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose among the members; and (4) an equal right to a voice in the enterprise's direction, which gives an equal right of control. The term ‘joint enterprise’ is often used interchangeably with ‘joint venture’ and it has been stated that when the term ‘joint enterprise’ is used to describe a business or commercial undertaking, no significant differences between the terms may be drawn. The terms are often distinguished, however, in that a joint venture, unlike a joint enterprise, necessarily involves the factor of a common commercial purpose. Stated another way, the basic difference between a joint venture and a joint enterprise is that a business relationship is needed for a joint venture but not for a joint enterprise; that is, there is no business motive underlying the parties' efforts in a joint enterprise. Stated another way, the basic difference between a joint venture and a joint enterprise is that a business relationship is needed for a joint venture but not for a joint enterprise; that is, there is no business motive underlying the parties' efforts in a joint enterprise. Further, although it has been said that the elements of joint ventures and joint enterprises are essentially the same, with the distinction that joint ventures apply to business ventures while joint enterprises do not, there is authority indicating that another distinction between a joint enterprise and a joint venture is that the latter requires an express or implied agreement to share profits, as well as an express or implied contract demonstrating the existence of the joint relationship. ******----------*******--------******--------.. 13. As would be manifest from the aforesaid principles which stand enunciated, a joint venture may be recognised as a quasi partnership where two or more entities jointly undertake a particular transaction or contract for mutual profit. It essentially represents a concept where two or more persons jointly take on the obligation to implement a contract or undertake an enterprise for gain and profit. While not strictly understood in law to be a legal person, a joint venture by virtue of entering into a contract binds itself to the various obligations that stands placed thereunder and to exercise all rights conferred therein. It could also be a consortium where either two or more persons or companies come together to discharge obligations. 14. Undisputedly, the contract in the present case was executed by the joint venture itself acting for and on behalf of all its constituents. It was an enterprise in which Respondents 2 and 3 came together and agreed to share profits from the venture. Insofar as the enforcement petitioner is concerned, it is clearly entitled in law to proceed against the respondents jointly and severally. The court further holds that the enforcement petitioner was neither obliged nor placed under a duty to array the individual members of the joint venture as party respondents. As long as the joint venture itself was before the Arbitral Tribunal, the same was clearly sufficient for the purposes of adjudication of claims that came to be laid by the petitioner. The individual members of a joint venture cannot seek the trial of such disputes based upon their own agreed upon or perceived individual responsibilities and obligations. As long as the joint venture itself was before the Arbitral Tribunal, the same was clearly sufficient for the purposes of adjudication of claims that came to be laid by the petitioner. The individual members of a joint venture cannot seek the trial of such disputes based upon their own agreed upon or perceived individual responsibilities and obligations. Those would clearly not bind third parties. When a contract is executed in favour of the joint venture, the person awarding the same is clearly entitled to proceed on the basis that each of the members of the consortium shall be jointly and severally liable. This subject of course to any contract or agreement to the contrary. In any case, a constituent of the joint venture cannot escape from the liability which stands raised or arises from that venture. It would remain, as noted above, jointly and severally liable.” 45. Another significant feature that this Court notices is the fact that by means of order dated 16.11.2021 and 06.12.2021, the Court had initially appointed Hon’ble Mr. Justice Brijesh Kumar Srivastava-II (retd.) as a member of the Arbitral Tribunal for the Authority. Thereafter, the two appointed Arbitrators (one nominated by the petitioner and the other appointed by the Court for the respondent) had appointed a Presiding Arbitrator and the proceedings commenced before the Arbitral Tribunal. During the proceedings, at the behest of the lead member of the Consortium, a review-application bearing No. 120 of 2022 was filed before the Court which was allowed by the Court on 13.12.2022 and the said order has already been reproduced hereinabove. 46. Despite the fact that the petitioner who has all through been aware of the fact that once the Arbitrator was appointed by this Court, and a review-application came to be filed at the behest of the lead member and even before the Arbitral Tribunal, the other two members of the Consortium had made separate applications seeking their impleadment and the application of M/s Pawanshree Foods International Pvt. Ltd. was allowed (the said order passed by the Tribunal has already been brought on record by the petitioner), however, there has been no explanation given by Mr. Moitra, learned counsel as to why the other consortium members were not impleaded as a party in the instant arbitration petition. 47. Moitra, learned counsel as to why the other consortium members were not impleaded as a party in the instant arbitration petition. 47. It is one thing to say that any one member of the Consortium is entitled to invoke the arbitration but at the same time it does not mean that the other members of the Consortium are to be excluded altogether and even though the Consortium members may be at variance with each other but they ought to be impleaded as a party more so when the allegations in the petition are against the lead member and an arbitration proceedings are sought to be commenced between the Consortium on one hand and the Authority on the other and that too without notice to the other Consortium members as they have not been impleaded as a party in the petition and after the decision in the review-application, they are neither represented nor impleaded. 48. For the very same reason, the earlier order passed by this Court dated 06.12.2021 was recalled by means of order dated 13.12.2022 and yet the petitioner did not take any corrective measures to rectify this patent defect in its petition. Even certain letters have been brought on record with the supplementary affidavit dated 23rd August, 2023 written by M/s Nanotrics Innovations Pvt. Ltd. to indicate that they were also having grievances with the lead member and had sought the invocation of the conciliatory process but even then no effort was made by the petitioner to implead M/s Nanotrics, who is also a member of the Consortium, as a party to the instant petition. 49. It is in the aforesaid circumstances, this Court finds that apparently, the petition suffers from the vice of non-joinder of necessary parties. 50. In light of the discussions made in the factual backdrop of the instant case, this Court finds, that the reliance placed by the learned counsel for the petitioner on the decision of Telangana High Court in Tecpro System Pvt. Ltd. (supra) has no applicability to the instant case. The issue before the Telangana High Court was whether a member of a Consortium can invoke the arbitration clause. This was answered by the Telangana High Court on the basis of the decision of the Apex Court in Chloro Controls India Pvt. Ltd. Vs. Severn Trent Water Purification Inc. The issue before the Telangana High Court was whether a member of a Consortium can invoke the arbitration clause. This was answered by the Telangana High Court on the basis of the decision of the Apex Court in Chloro Controls India Pvt. Ltd. Vs. Severn Trent Water Purification Inc. and others; (2013) 1 SCC 641 where the issue was in respect of binding a non-signatory to an Arbitration and the effect of the arbitral award on such non-signatory. The facts at hand are clearly quite different as in terms of the agreement, there is a clear demarcation of the Authority as one party and the Consortium as the other. The disputes which are referrable is in context with the dispute between the Consortium on one hand as a part and the Authority on the other as a party and not merely an inter-se dispute between the Consortium members. 51. If the intent of the Arbitration Clause was to refer every disputes inter-se the Consortium members then it would have been worded differently. As per the Arbitration Clause one Arbitrator is to be appointed by each party that is to say one by the Authority and the other by the Consortium. Any other meaning, if ascribed, to the said Clause would do violence to the language of the clauses as elucidated in the terms of the contract and the bidding document, which binds the parties. 52. The intent of the Arbitration Clause would stand frustrated if each member is allowed to raise its grievance inter-se. In such a case, then each member of the Consortium would have a right to appoint its own Arbitrator and then three Arbitrators would be appointed in a given situation on behalf of each member of Consortium and one by the Authority and these four Arbitrators would then go on to appoint a Presiding Arbitrator that would make the numbers of Arbitrators constituting the Tribunal as five which is not envisaged in the agreement and in law the Court cannot by relying on implications, re-write the terms of the contract. 53. 53. There is another way to look at this situation and to illustrate the fallacy it will be seen that, in case, as per the Section 10 of Arbitration of Conciliation Act, 1996, the number of Arbitrators cannot be in even number and in case of a Tribunal of more than two members the award of the majority Arbitrators is to prevail. Then in a case of a dispute where each of the Consortium member (as 3 in the instant case) appoint its 3 separate Arbitrators and the Authority appoints its own nominee Arbitrator and the four nominated Arbitrators appoint the fifth as Presiding Arbitrator, it would give rise to an unequal constitution, inasmuch as, all the three Arbitrators appointed by the Consortium members would be in a position to always prevail, being the majority. The Authority who would have has nominated its one Arbitrator and even if the Presiding Arbitrator rules with the Arbitrator nominated by the Authority, still the award would be 3:2 and this is definitely not the intent as borne out from the agreement. 54. Thus, for the aforesaid reasons, the Court is not inclined to accept the submissions made by Mr. Moitra that each member would be entitled to invoke the arbitration Clause separately in exclusion to the other members of the Consortium. 55. There is another fallacy that even assuming that each of the aggrieved member of the Consortium has a separate right of nominating an arbitrator in exclusion to the other members of the same Consortium then the situation would arise that there would be multiple arbitrations, inasmuch as, each member may raises his certain grievances with the department, therefore the department would be contesting separate arbitrations in respect of the disputes raised by the Consortium members separately which would result in absurd results and for the said reason too, this Court is unable to subscribe to the view as suggested by the learned counsel for the petitioner. This Court is of the clear view that the contention set forth by Mr. Moitra is not what is envisaged in the agreement and therefore the same are turned down by this Court. 56. In so far as the submission regarding the jurisdiction of this Court is concerned for which Mr. This Court is of the clear view that the contention set forth by Mr. Moitra is not what is envisaged in the agreement and therefore the same are turned down by this Court. 56. In so far as the submission regarding the jurisdiction of this Court is concerned for which Mr. Moitra, had relied upon the decision of the Apex court in Nortail India Pvt. Ltd. (Supra), suffice to state that the issue before the Apex Court in the said decision was regarding the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 and whether the Court can refuse to make a reference under Section 11 of the Act of 1996 where the claims are ex-facie time barred. 57. It is in this context that in paragraph 37 and 37.1, the Apex Court held that Section 11 (6-B) has not been amended by the 2019 Act and Sub Section 11 (6-B) which provides that the designation of any person or institution by the Court shall not be regarded as delegation of judicial power, consequently, it would not be open for the person or institution designated by the Court to exercise any judicial power and adjudicate on any dispute issued relating to the validity of the agreement or the arbitrability of the dispute. 58. This issue has no applicability in the instant case. Apparently, neither there is any dispute regarding the validity of the agreement or the existence of the dispute or the arbitration clause. Rather the core issue is whether a single member of the Consortium can file a petition without impleading the other members and raise disputes which prima facie are inter-se the Consortium members and roping in the Authority with whom the agreement has been entered into and for the reasons which has been already recorded by this Court in the previous paragraphs, this Court finds that the decision in Nortail India Pvt. Ltd. (supra) does not help or come to the aid of the petitioner. 59. 59. Even the decisions of Zoom Developers (supra), though, relates to the rights and liabilities of the Consortium members but is in a different context altogether as would be seen that before the Apex Court in Zoom Developers (supra), the issue was whether the decision of the Bid Evaluation Committee in rejecting the bid proposal made by a Consortium as non-admissible since there was a change in the compositions of members of the Consortium which is not the issue at hand. Thus, on account of different factual matrix before the Apex Court than the issue involved in the instant case, the said decision also does not salvage the situation for the petitioner. 60. Importantly, it will be pertinent to notice the Constitution Bench decision of the Apex Court in Vidya Drolia and Others Vs. Durga Tradi Corporation; 2021 (2) SCC 1 wherein the Apex Court has considered the issue regarding the scope and issues which are to be considered by the Referral Court under Section 11 of the Arbitration and Conciliation Act, 1996 and the relevant paragraphs no. 96, 97, 98, 99, 100, 101, 138, 139, 140, 143, 144 and 145 are being reproduced hereinafter for ease of reference:- “96. In National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117, a two-Judge Bench of this Court, elucidating on Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ], had identified and segregated the issues that arise for consideration in an application under Section 11 of the Arbitration 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, and thereafter had enumerated them as under : (Boghara Polyfab case [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117], SCC pp. 283-84, paras 22-24) “22.1. The issues (first category) which the Chief Justice/his designate will have to decide are: (a) Whether the party making the application has approached the appropriate High Court. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117], SCC pp. 283-84, paras 22-24) “22.1. The issues (first category) which the Chief Justice/his designate will have to decide are: (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. 22.2. The issues (second category) which the Chief Justice/his designate may choose to decide (or leave them to the decision of the Arbitral Tribunal) are: (a) Whether the claim is a dead (long-barred) claim or a live claim. (b) Whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection. 22.3. The issues (third category) which the Chief Justice/his designate should leave exclusively to the Arbitral Tribunal are: (i) Whether a claim made falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration). (ii) Merits or any claim involved in the arbitration. 23. It is clear from the scheme of the Act as explained by this Court in SBP & Co. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ], that in regard to issues falling under the second category, if raised in any application under Section 11 of the Act, the Chief Justice/his designate may decide them, if necessary, by taking evidence. Alternatively, he may leave those issues open with a direction to the Arbitral Tribunal to decide the same. If the Chief Justice or his designate chooses to examine the issue and decides it, the Arbitral Tribunal cannot re-examine the same issue. The Chief Justice/his designate will, in choosing whether he will decide such issue or leave it to the Arbitral Tribunal, be guided by the object of the Act (that is expediting the arbitration process with minimum judicial intervention). Where allegations of forgery/fabrication are made in regard to the document recording discharge of contract by full and final settlement, it would be appropriate if the Chief Justice/his designate decides the issue. 24. Where allegations of forgery/fabrication are made in regard to the document recording discharge of contract by full and final settlement, it would be appropriate if the Chief Justice/his designate decides the issue. 24. What is however clear is when a respondent contends that the dispute is not arbitrable on account of discharge of the contract under a settlement agreement or discharge voucher or no-claim certificate, and the claimant contends that it was obtained by fraud, coercion or undue influence, the issue will have to be decided either by the Chief Justice/his designate in the proceedings under Section 11 of the Act or by the Arbitral Tribunal as directed by the order under Section 11 of the Act. A claim for arbitration cannot be rejected merely or solely on the ground that a settlement agreement or discharge voucher had been executed by the claimant, if its validity is disputed by the claimant.” 97. The issues included in the first category were : whether the party making the application had approached the appropriate High Court, that is, the jurisdictional High Court; whether there is an arbitration agreement and whether the person who had applied under Section 11 is a party to such agreement. This would include the question whether the defendant or the opposite party is a party to the arbitration agreement or bound by the arbitration agreement in terms of Section 7 of the Arbitration Act. With respect to the second category, the Court observed that the Chief Justice or his designate may decide the issue, if necessary, by taking evidence or in the alternative may leave the issues open with the direction to the Arbitral Tribunal to decide the same. Where the Chief Justice or his designate examines the issue and decides it, the Arbitral Tribunal cannot re-examine the issue. The Chief Justice or his designate would exercise this choice being guided by the object of the Arbitration Act, that is, expediting the arbitration process with minimum judicial intervention. Where dispute arises on account of settlement agreement, discharge voucher, no-claim certificate amounting to discharge or accord and satisfaction, and the other side contends that such certificates were obtained by fraud, coercion or undue influence, the issue will have to be decided either by the Chief Justice or his designate in proceedings under Section 11 or by the Arbitral Tribunal as directed by the order under Section 11 of the Act. A claim for arbitration cannot be rejected merely or solely on the ground that the settlement agreement or discharge voucher had been executed if its validity is disputed. The third category would cover all other questions within the arbitration clause, which the court believed are within the exclusive jurisdiction of the Arbitral Tribunal at the first stage. This was explained by giving an example of a matter purportedly reserved for the final determination of the departmental authority or excepted or excluded matters. It would also include merits of any claim involved in arbitration. 98. Para 22 of Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117], if read carefully, states that the factors to be considered while deciding an application under Sections 8 and 11 of the Arbitration Act would require an examination of whether there exists an arbitration agreement, that is, the agreement provides for arbitration proceedings in respect of disputes which have arisen between the parties to the agreement. The latter portion requires the court to apply its mind whether the disputes which have arisen can be settled by the arbitration agreement. The aforesaid observations, in our opinion, would be in conformity with the majority decision of the Constitution Bench in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] wherein it was observed that Sections 8 and 11 of the Arbitration Act are complementary in nature and the Court, while exercising powers under the two sections on whether the matter should be referred to arbitration, enjoys equal powers, otherwise, it would lead to an anomalous situation in that a judicial authority has wider power under Section 8 but lesser power of examination under Section 11. 99. In Arasmeta Captive Power Co. (P) Ltd. v. Lafarge (India) (P) Ltd., (2013) 15 SCC 414 : (2014) 5 SCC (Civ) 302, this Court had examined whether there is any conflict between Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] and Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] on the question of the scope of inquiry while deciding an application under Section 11(6) of the Arbitration Act. The Division Bench in Arasmeta Captive Power Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] and Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] on the question of the scope of inquiry while deciding an application under Section 11(6) of the Arbitration Act. The Division Bench in Arasmeta Captive Power Co. (P) Ltd. [Arasmeta Captive Power Co. (P) Ltd. v. Lafarge (India) (P) Ltd., (2013) 15 SCC 414 : (2014) 5 SCC (Civ) 302] had referred to para 39 and sub-para (iv) of para 47 in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ], to observe : [Arasmeta Captive Power Co. (P) Ltd. case [Arasmeta Captive Power Co. (P) Ltd. v. Lafarge (India) (P) Ltd., (2013) 15 SCC 414 : (2014) 5 SCC (Civ) 302], SCC pp. 423-24, para 18] “18. On a careful reading of para 39 and Conclusion (iv), as set out in para 47 of SBP case [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ], it is limpid that for the purpose of setting into motion the arbitral procedure the Chief Justice or his designate is required to decide the issues, namely, (i) territorial jurisdiction, (ii) existence of an arbitration agreement between the parties, (iii) existence or otherwise of a live claim, and (iv) existence of the conditions for exercise of power and further satisfaction as regards the qualification of the arbitrator. That apart, under certain circumstances the Chief Justice or his designate is also required to see whether a long-barred claim is sought to be restricted and whether the parties had concluded the transaction by recording satisfaction of the mutual rights and obligations or by receiving the final payment without objection.” 100. Thereafter, reference was made to the opinion expressed in judgment in Shree Ram Mills Ltd. v. Utility Premises (P) Ltd., (2007) 4 SCC 599 , which it was contended had taken a different view from one in Boghara Polyfab (P) Ltd. [National Insurance Co. Thereafter, reference was made to the opinion expressed in judgment in Shree Ram Mills Ltd. v. Utility Premises (P) Ltd., (2007) 4 SCC 599 , which it was contended had taken a different view from one in Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] Disagreeing, the Court referred to the three-Judge Bench decision in Chloro Controls (India) (P) Ltd. [Chloro Controls (India) (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689] which had considered the issue whether there was any variance between Shree Ram Mills Ltd. [Shree Ram Mills Ltd. v. Utility Premises (P) Ltd., (2007) 4 SCC 599 ] and Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117], to hold that there was none and both the judgments are capable of being read in harmony to bring in line with the law declared in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] In particular, a reference was made to the following portion of the para 27 of Shree Ram Mills Ltd. [Shree Ram Mills Ltd. v. Utility Premises (P) Ltd., (2007) 4 SCC 599 ] and para 119 of Chloro Controls (India) (P) Ltd. [Chloro Controls (India) (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689] which read as under : [Arasmeta Captive Power Co. (P) Ltd. case [Arasmeta Captive Power Co. (P) Ltd. v. Lafarge (India) (P) Ltd., (2013) 15 SCC 414 : (2014) 5 SCC (Civ) 302], SCC pp. 426-27, paras 24-25] “24. … ‘27. … If the Chief Justice does not, in the strict sense, decide the issue, in that event it is for him to locate such issue and record his satisfaction that such issue exists between the parties. It is only in that sense that the finding on a live issue is given. Even at the cost of repetition we must state that it is only for the purpose of finding out whether the arbitral procedure has to be started that the Chief Justice has to record satisfaction that there remains a live issue in between the parties. It is only in that sense that the finding on a live issue is given. Even at the cost of repetition we must state that it is only for the purpose of finding out whether the arbitral procedure has to be started that the Chief Justice has to record satisfaction that there remains a live issue in between the parties. The same thing is about the limitation which is always a mixed question of law and fact. The Chief Justice only has to record his satisfaction that prima facie the issue has not become dead by the lapse of time or that any party to the agreement has not slept over its rights beyond the time permitted by law to agitate those issues covered by the agreement. It is for this reason that it was pointed out in the above paragraph that it would be appropriate sometimes to leave the question regarding the live claim to be decided by the Arbitral Tribunal. All that he has to do is to record his satisfaction that the parties have not closed their rights and the matter has not been barred by limitation. Thus, where the Chief Justice comes to a finding that there exists a live issue, then naturally this finding would include a finding that the respective claims of the parties have not become barred by limitation.’ (Shree Ram Mills Ltd. case [Shree Ram Mills Ltd. v. Utility Premises (P) Ltd., (2007) 4 SCC 599 ], SCC p. 608, para 27) 25. … ‘119. … Thus, the Bench while explaining the judgment of this Court in SBP [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] has stated that the Chief Justice may not decide certain issues finally and upon recording satisfaction that prima facie the issue has not become dead even leave it for the Arbitral Tribunal to decide.’ [Chloro Controls (India) (P) Ltd. case [Chloro Controls (India) (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689], SCC p. 700, para 119]” 101. In Arasmeta Captive Power Co. (P) Ltd. [Arasmeta Captive Power Co. In Arasmeta Captive Power Co. (P) Ltd. [Arasmeta Captive Power Co. (P) Ltd. v. Lafarge (India) (P) Ltd., (2013) 15 SCC 414 : (2014) 5 SCC (Civ) 302], elucidating on the question whether the dispute was arbitrable within the scope of the arbitration clause should be decided by the Chief Justice/designate Judge or by the arbitrator, this Court has observed : (SCC pp. 432-33, para 40) “40. … The stress laid thereon may be innovative but when the learned Judges themselves have culled out the ratio decidendi in para 39, it is extremely difficult to state that the principle stated in SBP [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] requires the Chief Justice or his designate to decide the controversy when raised pertaining to arbitrability of the disputes. Or to express an opinion on excepted matters. Such an inference by syllogistic process is likely to usher in catastrophe in jurisprudence developed in this field. We are disposed to think so as it is not apposite to pick up a line from here and there from the judgment or to choose one observation from here or there for raising it to the status of “the ratio decidendi”. That is most likely to pave one on the path of danger and it is to be scrupulously avoided. The propositions set out in SBP [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ], in our opinion, have been correctly understood by the two-Judge Bench in Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] and the same have been appositely approved by the three-Judge Bench in Chloro Controls (India) (P) Ltd. [Chloro Controls (India) (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 SCC 641 : (2013) 1 SCC (Civ) 689] and we respectfully concur with the same. We find no substance in the submission that the said decisions require reconsideration, for certain observations made in SBP [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ], were not noticed. We may hasten to add that the three-Judge Bench has been satisfied that the ratio decidendi of the judgment in SBP [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] is really inhered in para 39 of the judgment.” ******----------*******--------******-------- ..........138. v. Patel Engg. Ltd., (2005) 8 SCC 618 ], were not noticed. We may hasten to add that the three-Judge Bench has been satisfied that the ratio decidendi of the judgment in SBP [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] is really inhered in para 39 of the judgment.” ******----------*******--------******-------- ..........138. In the Indian context, we would respectfully adopt the three categories in Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] 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 centralised 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 statute(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. [Ed. : The Boghara categories are set out in para 96, at pp. 86-87, hereinabove. Given that Boghara case was decided before the 2015 Amendment, it is worthwhile juxtaposing the observations of Ramana, J. in his supplementing opinion hereinbelow, on this issue in paras 225.1, 225.2 and 227:“Post the 2015 Amendment, judicial interference at the reference stage has been substantially curtailed… post the 2015 Amendment, the structure of the Act was changed to bring it in tune with the pro-arbitration approach. Under the amended provision, the court can only give prima facie opinion on the existence of a valid arbitration agreement.” This would only appear to emphasise the limited and restricted nature of review by the court at the referral stage even while having resort to the Boghara categories, which must be read in light of the observations made in para 138, modifying and limiting them in light of the 2015 Amendment and the fourfold test of non-arbitrability postulated herein. 139. We would not like to 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. 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. [Ozlem Susler, “The English Approach to Competence-Competence” Pepperdine Dispute Resolution Law Journal, 2013, Vol. 13.] 140. Accordingly, when it appears that prima facie review would be inconclusive, or on consideration inadequate as it requires detailed examination, the matter should be left for final determination by the Arbitral Tribunal selected by the parties by consent. The underlying rationale being not to delay or defer and to discourage parties from using referral proceeding as a ruse to delay and obstruct. In such cases a full review by the courts at this stage would encroach on the jurisdiction of the Arbitral Tribunal and violate the legislative scheme allocating jurisdiction between the courts and the Arbitral Tribunal. Centralisation of litigation with the Arbitral Tribunal as the primary and first adjudicator is beneficent as it helps in quicker and efficient resolution of disputes. ......143. Centralisation of litigation with the Arbitral Tribunal as the primary and first adjudicator is beneficent as it helps in quicker and efficient resolution of disputes. ......143. We would now examine Section 11 of the Arbitration Act. As noticed above sub-section (6-A) was inserted by Act 3 of 2016 with retrospective effect from 23-10-2015 and omitted by Act 33 of 2019. Section 11(6) requires the court to appoint an arbitrator on an application made by a party. Section (6-A) to Section 11 stipulates that the court shall, at the stage of appointment under sub-sections (4), (5) or (6), confine itself to the examination of the existence of an arbitration agreement. Sub-section (6-A) was omitted by Act 33 of 2019, but the omission is in view of the introduction of a new regime of institutionalised arbitration as per the report of the committee headed by Justice B.N. Srikrishna, dated 30-7-2017 which records for the reason of recommending the omission as: “Thus, it can be seen that after the Amendment Act of 2019, Section 11(6-A) has been omitted because appointment of arbitrators is to be done institutionally, in which case the Supreme Court or the High Court under the old statutory regime are no longer required to appoint arbitrators and consequently to determine whether an arbitration agreement exists.” ******----------*******--------******------- 144. As observed earlier, Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] explains and holds that Sections 8 and 11 are complementary in nature as both relate to reference to arbitration. Section 8 applies when judicial proceeding is pending and an application is filed for stay of judicial proceeding and for reference to arbitration. Amendments to Section 8 vide Act 3 of 2016 have not been omitted. Section 11 covers the situation where the parties approach a court for appointment of an arbitrator. Mayavati Trading (P) Ltd. [Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714 : (2019) 4 SCC (Civ) 441], in our humble opinion, rightly holds that Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] has been legislatively overruled and hence would not apply even post omission of sub-section (6-A) to Section 11 of the Arbitration Act. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] has been legislatively overruled and hence would not apply even post omission of sub-section (6-A) to Section 11 of the Arbitration Act. Mayavati Trading (P) Ltd. [Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019) 8 SCC 714 : (2019) 4 SCC (Civ) 441] has elaborated upon the object and purposes and history of the amendment to Section 11, with reference to sub-section (6-A) to elucidate that the section, as originally enacted, was facsimile with Article 11 of the UNCITRAL Model of law of arbitration on which the Arbitration Act was drafted and enacted. Referring to the legislative scheme of Section 11, different interpretations, and the Law Commission's Reports, it has been held that the omitted sub-section (6-A) of Section 11 of the Arbitration Act would continue to apply and guide the courts on its scope of jurisdiction at stage one, that is, the pre-arbitration stage. 145. Omission of sub-section (6-A) by Act 33 of 2019 was with the specific object and purpose and is relatable to by substitution of sub-sections (12), (13) and (14) of Section 11 of the Arbitration Act by Act 33 of 2019, which, vide sub-section (3-A) stipulates that the High Court and this Court shall have the power to designate the arbitral institutions which have been so graded by the Council under Section 43-I, provided where a graded arbitral institution is not available, the High Court concerned shall maintain a panel of arbitrators for discharging the function and thereupon the High Court shall perform the duty of an arbitral institution for reference to the Arbitral Tribunal. Therefore, it would be wrong to accept that post omission of sub-section (6-A) of Section 11 the ratio in Patel Engg. Ltd. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 ] would become applicable.” E:- Conclusions:- 61. For the detailed discussions, this Court finds that the issue for the Referral Court, at least is to see whether the correct party has approached the correct High Court for invocation of an Arbitration Clause which is existing and binding on the parties and the disputes are covered by the said agreement. For the detailed discussions, this Court finds that the issue for the Referral Court, at least is to see whether the correct party has approached the correct High Court for invocation of an Arbitration Clause which is existing and binding on the parties and the disputes are covered by the said agreement. To examine the same the Court shall apply the prima facie test and drawing strength from the aforesaid decision of the Apex Court in Vidya Drolia (supra) prima facie this Court comes to an inescapable conclusion that the petition has been filed by one member of the Consortium only without impleading the other Consortium members including against whom allegations have been levelled and the said allegations are prima facie indicative of disputes inter-se the Consortium members which may not be referrable for arbitration. 62. For the detailed reasons hereinabove and in the humble opinion of this Court, such a petition is not maintainable at the behest of the petitioner alone for the nature of disputes so raised. Consequently, the petition is dismissed. Costs are made easy.