ORDER 1. The appellant has filed the present appeal under section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter shall be referred to as the Act) being aggrieved by the order dt.17.10.2023 passed by the Commercial Court, Gwalior, whereby the application filed by the appellant under section 9 of the Arbitration Act has been dismissed. 2. Facts of the case in short are as under :-- (i) The respondents issued a Request For Proposal (RFP) bearing RFP No.GSCDCL/61/E-Tendering/2018-19 for selection of Bus Operators for Bus Transport System in Gwalior on a cluster basis through Procurement, Operation and Maintain Basis for a period of 7 years in 2 clusters. (ii) The appellant participated in the said e-tendering process for all 2 clusters. Two separate letters of acceptance were issued by the appellant on 27.9.2018. The appellant submitted performance guarantees each of Rs.16,80,000/- and thereafter offered a total of 32 buses in both clusters. Thereafter, agreements were also duly executed and the appellant started plying the buses on the basis of a permit granted by the Regional Transport Authority Gwalior . (iii) The appellant in addition to the submission of two performance guarantees also submitted a VGF guarantee for Buses of Rs.2,90,47,200/-. According to the appellant, in purchases of buses an amount of Rs.7,32,18,000/- was invested. (iv) The respondents vide order dt.20.9.2023, terminated the agreement dt.29.9.2018 and initiated the proceeding for encashment of bank guarantee. The appellant approached the Commercial Court by way of an application under section 9 of the Act to get a temporary injunction. The respondents appeared and filed a reply by submitting that as per the terms and conditions of the agreement, the present application is not maintainable under the Act as the appellant has the remedy to approach the Madhya Pradesh Madhyastham Adhikaran at Bhopal. (v) Meanwhile the appellant challenged the aforesaid termination of contract by way of Writ Petition No.27457/2023 before this High Court. Vide order dt.5.12.2023, Writ Petition was dismissed with advice to the appellant to approach the (4) Divisional Commissioner who is a named Arbitrator under Clause 6.9.2 of the NIT. (vi) Vide order dt.17.10.2023, the learned Commercial Court has dismissed the application under the provisions of Order 7 Rule 11 of CPC as not maintainable. Hence present an appeal before this Court. 3. We have heard learned counsel for the parties. 4. (vi) Vide order dt.17.10.2023, the learned Commercial Court has dismissed the application under the provisions of Order 7 Rule 11 of CPC as not maintainable. Hence present an appeal before this Court. 3. We have heard learned counsel for the parties. 4. Clause 6.9.2 of the NIT deals with the Arbitration and RFP, which is reproduced below :-- 6.9.2 Arbitration 1. Arbitrators Any Dispute which is not resolved amicably as provided in RFP shall be finally settled by authorizing Divisional Commissioner of the respective Division of the Project City as Arbitrator. Both the parties agree to have Divisional Commissioner of the respective Division of Gwalior as Arbitrator in case the dispute is not resolved amicably. 2. Enforcement of Award Any decision or award resulting from arbitration shall be final and binding upon the Parties. The Parties hereto hereby waive, to the extent permitted by law, any rights to appeal or to review of such award by any Court or Tribunal. The Parties hereto agree that the arbitral award may be enforced against the Parties to the arbitration proceedings or their assets wherever they may be found and that a judgment upon the arbitral award may been entertained in any Court having jurisdiction thereof. 3. Performance during Arbitration Pending the submission of and/or decision on a Dispute, difference or claim or until the arbitral award is published; the Parties shall continue to perform all of their obligations under this Agreement without prejudice to a final adjustment in accordance with such award. 5. It is clear from sub Clause 1 of Clause 6.9.2 that any dispute which is not resolved amicably as provided in RFP shall be finally settled by authorizing the Divisional Commissioner of the respective Division of the Project City as Arbitrator. Therefore, the objection taken by the respondents before the Commercial Court was not tenable that the appellant has remedy to approach Madhya Pradesh Madhyastham Adhikaran at Bhopal under the provisions of the Act. 6. Shri Deepak Khot, learned counsel appearing for the respondents has referred to Clause 12.2 of the agreement which says that if the dispute persists then the aggrieved party shall refer the case to the tribunal constituted under Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983. 7. Clause 12.2 is reproduced below. 12.2 Arbitration 1. 6. Shri Deepak Khot, learned counsel appearing for the respondents has referred to Clause 12.2 of the agreement which says that if the dispute persists then the aggrieved party shall refer the case to the tribunal constituted under Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983. 7. Clause 12.2 is reproduced below. 12.2 Arbitration 1. if the dispute persists then the aggrieved party shall refer the case to the tribunal constituted under Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983. Costs associated with arbitraton and/or litigation shall be borne by the respective parties. Statutory costs and fees other than the costs stated above, wherever applicable shall be paid by the party referring the dispute to the tribunal. Place for dispute resolution shall be at Gwalior. The language of arbitration shall be English. 2. Appeals against arbitration orders can be filed only in Courts within the state of Madhya Pradesh. The language of all proceedings to this effect shall be English. 3. Notwithstanding the pendency of the outcome of any arbitration or suit, the Contractor shall continue to discharge his obligations under this Contract. 4. The Courts at Gwalior shall have exclusive jurisdiction in respect of disputes. 8. It appears that there is a typographical error in the agreement as admittedly the present contract is not related to the works contract and in the main RFP, there is a clause of arbitration in which the Divisional Commissioner is an arbitrator appointed by the parties. Under the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, the disputes pertaining to works contract are liable to be entertained by the Madhyastham Adhikaran. Therefore, the learned Commercial Court has wrongly placed reliance on Clause 12.2 of the agreement while dismissing the application under section 9 of the Act. Hence, the impugned order dt.17.10.2023 is unsustainable and is liable to be set aside. 9. After setting aside the impugned order dt.17.10.2023,the proceedings of MJC AV [MJC ARBITRATION] No.14A/2023 are liable to be restored, but learned counsel for the parties submit that the appellant has already approached the Divisional Commissioner by filing the statement of claims and the respondents have also appeared, therefore, now the proceedings have been started by the arbitrator, hence, now application under section 9 of the Act can not be considered. The impugned order is set aside as it has passed by applying a clause in the agreement which is contrary to the law as well as terms and condition of the NIT. Therefore, let the Divisional Commissioner proceed and conclude the arbitration proceedings. Accordingly, the appeal stands allowed.