JUDGMENT : 1. This petitioner has filed this arbitration application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (as amended) (in short “the Act”) for appointment of an arbitrator to resolve the disputes arising out of an agreement being Purchase Order No.4000277672-108- 1040 dated 27.04.2022 entered by and between the petitioner and the respondent-NTPC Ltd. Case of the petitioner 2. The respondent published a Notice Inviting Tender (NIT) vide Tender Reference No.NTPC/SCC-Coal Mining (Ranchi)/9900235955 dated 23.03.2022 for the work of “Loading, Transportation, Unloading and Wagon loading of coal from surface coal yard of Pakri Barwadih Coal Mining Project (PBCMP) to Banadag Railway Siding Hazaribagh including maintenance of Banadag Siding & Associated Miscellaneous Works for an Interim Period of 03 (Three) Months.” 3. The petitioner participated in the said NIT and on being declared the lowest tenderer, a Letter of Intent dated 27.04.2022 was issued to the petitioner for the work in question. Pursuant thereto, an agreement vide Purchase Order No. 4000277672-108-1040 dated 27.04.2022 was entered into. The duration of the service period was from 10.05.2022 to 09.08.2022. 4. The petitioner immediately commenced the work in question on 10.05.2022 itself, however, on 11.05.2022, the work was being hindered by the local people at the worksite with the sole intention to create disturbance in execution of the work. Therefore, the petitioner through its employee filed a complaint before the Hazaribagh Police which was registered as Katkamdag P.S. Case No. 82 of 2022 dated 11.05.2022 under Sections 147, 148, 149, 341, 323, 384, 427 and 504 of the IPC. 5. Despite hindrances, the petitioner continued the work until 12.05.2022 as shown by the Weighment Reports, however, the respondent issued a letter alleging that the petitioner had not mobilized resources at the worksite and directed the petitioner to commence the work within 24 hours, failing which action under Clause 10 (Suspension/Termination of the Purchase Order) would be taken. 6. The petitioner immediately through its email dated 12.05.2022 replied that it has already mobilized and commenced the work in question since 10.05.2022 itself. 7. Without considering such reply by the petitioner, the respondent- authority issued a Termination Letter on 12.05.2022 (Annexure 6) citing fundamental breach due to non-mobilization, failure to start work within 15 days, and non-fulfillment of condition precedent under the Purchase Order. 8. 7. Without considering such reply by the petitioner, the respondent- authority issued a Termination Letter on 12.05.2022 (Annexure 6) citing fundamental breach due to non-mobilization, failure to start work within 15 days, and non-fulfillment of condition precedent under the Purchase Order. 8. This arbitrary action of the respondent compelled the petitioner to file an application under Section 9 of the Arbitration and Conciliation Act, 1996 being A.P. No.292 of 2022 and the Calcutta High Court, before whom the application had been filed, vide order dated 19.05.2022 held that termination was prima facie illegal, arbitrary and mala fide, being contrary to the contract, however, since the matter was not under its jurisdiction, the Court refrained from striking down the termination and adjourned the matter for possible resolution. The application is still pending before the Calcutta High Court. 9. After the aforesaid order dated 19.05.2022, the petitioner repeatedly submitted representations before the respondent expressing its readiness to continue the work. One such representation was made on 25.07.2022 (Annexure 8). 10. The respondent vide its letter dated 28.07.2022 (Annexure 9) informed the petitioner that the contract has already been terminated on 12.05.2022 and, therefore, the petitioner’s request to continue the work under the terminated contract was not acceptable. 11. Vide letter dated 12.09.2022 the petitioner showed its willingness to perform its contractual obligation and requested the respondent to hold a mutual discussion to resolve the demand/claim raised by the petitioner. The petitioner also raised the following claims: 12. Citing the aforesaid claims, the petitioner in the aforesaid letter dated 12.09.2022 also invoked Clause 8.1 of the General Condition of Contract (GCC) which inter alia stated that, “….. If the parties failed to resolve such a dispute of difference by mutual consultation, then the dispute may be settled through Expert Settlement Council / Arbitration /other remedies available under the applicable laws.” 13. When no response was made by the respondent to the aforesaid letter dated 12.09.2022 nor the claim of the petitioner was settled, the petitioner, having no alternative, sent a legal notice to the respondent on 09.12.2024 invoking Clause 8.3 of the reference of the dispute through arbitration and making the following claims: (i) Payment to the tune of Rs.1,79,391/- (without GST) for the amount of coal loaded, transported and unloaded from Pakri Barwadih Coal Mining Project to Banadag Railway Siding Hazaribagh. (ii) Loss of business to the tune of Rs.93,64,74,609/- due to termination of the works contract. (iii) Interest @ 18% on that total amount recoverable from the date of breach of contract. 14. When no response was received to the aforesaid legal notice dated 09.12.2024, the petitioner has filed the instant arbitration application under Section 11(6) of the Act, for appointment of an arbitrator. Averments in the counter affidavit 15. The respondent have filed a detailed counter affidavit stating that the application filed by the petitioner under Section 9 of the Act is pending adjudication before the Calcutta High Court; the petitioner vide letter dated 28.04.2022 was formally intimated regarding scheduled commencement of work w.e.f. 10.05.2022, but even, the performance of the petitioner during its brief tenure (10.05.2022 to 12.05.2022) was wholly inadequate, as, in terms of the Purchase Order, the petitioner was required to execute approximately 3.3% of the total scope of work in the initial three days, but it could barely manage 0.019% of the work. 16. The respondent has further stated that due to failure of the petitioner, the respondent has suffered quantifiable financial losses as follows:- (i) Revenue loss to NTPC – PBCMP (10.05.2022 TO 13.05.2022) – Rs.21.49 Crores. (ii) Loss on account of decreased power generation and consequential revenue loss from beneficiaries – Rs.27.40 Crores. 17. It has further been stated that mutual consultation meeting failed as the petitioner did not sign the Minutes of the Meeting and the petitioner without exhausting the remedy as laid down under Clause 8 of the GCC filed an application under Section 9 of the Act before the Calcutta High Court which is pending adjudication. Findings of the Court 18. I have heard the learned counsels for the parties and gone through the materials placed on record. 19. Adverting to the contention of the respondent regarding the maintainability of this petition without exhausting the remedy as laid down under Clause 8.1 (supra), suffice it to say that a contractual prescription requiring parties to participate in pre-arbitration, mediation or conciliation prior to invocation of arbitration, is directory and not mandatory. In the case of Oasis Projects Limited v. Managing Director, National Highway And Infrastructure Development Corporation Limited, 2023 SCC OnLine Del 645, the High Court of Delhi held as under: “12. In the case of Oasis Projects Limited v. Managing Director, National Highway And Infrastructure Development Corporation Limited, 2023 SCC OnLine Del 645, the High Court of Delhi held as under: “12. The primary issue to be decided in the present petition is, therefore, as to whether it was mandatory for the petitioner to resort to the conciliation process by the Committee before invoking arbitration. Though Article 26.2 clearly states that before resorting to arbitration, the parties agree to explore conciliation by the Committee, in my opinion, the same cannot be held to be mandatory in nature. It needs no emphasis that conciliation as a dispute resolution mechanism must be encouraged and should be one of the first endeavours of the parties when a dispute arises between them. However, having said that, conciliation expresses a broad notion of a voluntary process, controlled by the parties and conducted with the assistance of a neutral third person or persons. It can be terminated by the parties at any time as per their free will. Therefore, while interpreting Article 26.2, the basic concept of conciliation would have to be kept in mind.” 20. The settlement of the dispute by conciliation is an option and not mandatory. Reference in this regard can conveniently be made to the judgment of the Hon’ble Supreme Court in VISA International Limited v. Continental Resources (USA) Limited, (2009) 2 SCC 55 , wherein it was held as follows: “Whether invocation of Article VI providing for arbitration is premature? 38. It was contended that the pre-condition for amicable settlement of the dispute between the parties has not been exhausted and therefore the application seeking appointment of arbitrator is premature. From the correspondence exchanged between the parties at pp. 54-77 of the paper book, it is clear that there was no scope for amicable settlement, for both the parties have taken rigid stand making allegations against each other. In this regard a reference may be made to the letter dated 15-9-2006 from the respondent herein in which it is inter alia stated “… since February 2005 after the execution of the agreements, various meetings/discussions have taken place between both the parties for furtherance of the objective and purpose with which the agreement and the MoU were signed between the parties. Several correspondences have been made by CRL to VISA to help and support its endeavour for achieving the goal for which the abovementioned agreements were executed”. In the same letter it is alleged that in spite of repeated requests the petitioner has not provided any funding schedules for their portion of equity along with supporting documents to help in convincing OMC of financial capabilities of the parties and ultimately to obtain financial closure of the project. The exchange of letters between the parties undoubtedly discloses that attempts were made for an amicable settlement but without any result leaving no option but to invoke the arbitration clause.” 21. Similar question thereafter came up before the Hon’ble Supreme Court in Demerara Distilleries Private Limited and Another v. Demerara Distillers Limited, (2015) 13 SCC 610 , wherein the Hon’ble Supreme Court held as follows: “5. Of the various contentions advanced by the respondent Company to resist the prayer for appointment of an arbitrator under Section 11(6) of the Act, the objections with regard the application being premature; the disputes not being arbitrable, and the proceedings pending before the Company Law Board, would not merit any serious consideration. The elaborate correspondence by and between the parties, as brought on record of the present proceeding, would indicate that any attempt, at this stage, to resolve the disputes by mutual discussions and mediation would be an empty formality. The proceedings before the Company Law Board at the instance of the present respondent and the prayer of the petitioners therein for reference to arbitration cannot logically and reasonably be construed to be a bar to the entertainment of the present application. Admittedly, a dispute has occurred with regard to the commitments of the respondent Company as regards equity participation and dissemination of technology as visualised under the Agreement. It would, therefore, be difficult to hold that the same would not be arbitrable, if otherwise, the arbitration clause can be legitimately invoked. Therefore, it is the objection of the respondent Company that the present petition is not maintainable at the instance of the petitioners which alone would require an in-depth consideration.” 22. It would, therefore, be difficult to hold that the same would not be arbitrable, if otherwise, the arbitration clause can be legitimately invoked. Therefore, it is the objection of the respondent Company that the present petition is not maintainable at the instance of the petitioners which alone would require an in-depth consideration.” 22. As regards the filing of application by the petitioner under Section 9 of the Act before the Calcutta High Court, even the same cannot be held as an impediment for appointment of an arbitrator, as, Section 9 of the Act would not vest the Court any power or authority to appoint an arbitrator, as the same rests with the Court under Section 11 of the Act. Conclusion 23. In the given facts and circumstances, I deem it appropriate to allow this application and, accordingly, Hon’ble Mr. Justice Virender Singh, Former Chief Justice of the High Court of Jharkhand, presently residing at Kothi No.233, Sector-11A, Chandigarh-160011, as the Sole Arbitrator to adjudicate upon the dispute between the parties. 24. All other contentions available to the parties are left open to be raised before the learned Arbitrator. 25. Learned Arbitrator would be free to lay down the fees and other expenses towards conduct of the arbitration proceedings, however, while doing so he shall take into account the ceiling prescribed under Schedule IV of the Act of 1996 as amended. 26. Learned Arbitrator would endeavor to conclude the proceedings expeditiously by taking into regard the mandate of the Legislature under Section 29-A of the Act of 1996. 27. Accordingly, this application is allowed and disposed of.