ORDER : M.A. Abdul Hakhim, J. 1. This is an Application under S.11(6) of the Arbitration and Conciliation Act to appoint an Arbitrator under Clause 15.3 of Annexure A1 Agreement to resolve the dispute between the Applicant and the respondents arising out of the said Agreement. 2. The Application is opposed by the respondents by filing Counter Affidavit. 3. I heard the learned counsel for the Applicant, Sri. M.K. Sumod and the learned counsel for the respondents, Sri. V. Santharam. 4. The Applicant, through its holding Company M/S. Indo Thai Airport Management Services Pvt. Ltd., executed Annexure A1 Concession Agreement dated 19.07.2021 with the 2 nd respondent represented by the 1 st respondent. The Agreement was for providing ground handling services by the Applicant at Calicut Airport. The period of Annexure A1 Agreement was for a period of ten years. The period has not expired and parties have been still continuing with the Annexure A1 Agreement. 5. The 1 st respondent issued Annexure A14 Show Cause Notice dated 20.12.2021 to the Applicant alleging violation of Annexure A1 Agreement on account of non-achievement of Certificate of Operational Readiness (COD) as per the prescribed timeline, non- intimation of the Tariff Application submitted to AERA and non- intimation of the details of Escrow Account opened for the purpose of contract. The Applicant approached this Court by filing WP(C) No.2611/2022 challenging Annexure A14 Show Cause Notice and seeking extension for achievement of COD till such time COVID restrictions upon air travel are lifted completely. This Court disposed of the said Writ Petition as per Annexure A15 judgment directing the Applicant to submit explanation to Annexure A14 and directing the respondents to consider the same within a period of two weeks. The Applicant submitted A16 Reply to Annexure A14, mainly contending that the Applicant is entitled to get relaxation of conditions for achieving COD on account of the COVID pandemic, as the same has been declared as an event of Force Majeure by the Ministry of Finance. The 1 st respondent issued Annexure A22 Notice demanding Rs.7,31,46,240/- as damage charges on the allegations that the Applicant achieved COD after a delay of 272 days and that the conditions could not be relaxed on the ground of Force Majeure. The 1 st respondent issued Annexure A22 Notice demanding Rs.7,31,46,240/- as damage charges on the allegations that the Applicant achieved COD after a delay of 272 days and that the conditions could not be relaxed on the ground of Force Majeure. The Applicant challenged Annexure A22 in this Court by filing WP(C) No.34051/2022 and the same was disposed of by this Court as per Annexure A25 judgment observing that the remedy of the applicant is to invoke Arbitration clause in Annexure A1 Agreement and not to seek relief under Article 226 of the Constitution of India. Thereafter, the 1 st respondent issued Annexure A26 dated 11.04.2023 calling upon the applicant to explain as to the non-payment of Rs.6,68,90,087/- towards the payment of MMG and Rs.7,31,46,240/- towards damage charges. The Request of the Applicant dated 18.08.2023 for referring the dispute to the Dispute Resolution Committee (DRC) was approved by the 1 st respondent, constituting the DRC at the station level by Annexure A29 dated 11.09.2023. In Annexure A29, the Applicant was demanded to pay the damage charges in accordance with clause 7.1.6 of the Annexure A1 Agreement subject to the condition that if the dispute is settled in favour of the Applicant, the 2 nd respondent shall refund the disputed dues as per the decision of the DRC or arbitration, without any interest. The Applicant as per Annexure A31 dated 10.02.2025 notified the 1 st respondent, his willingness to adjudicate the dispute through Arbitration by suggesting the name of the Arbitrator. In Annexure A31, the Applicant informed the 1 st respondent that the Applicant is willing to hold further discussions in order to resolve the disputes amicably. The 1 st respondent issued Annexure A32 dated 10.03.2025 stating that they had closed the Dispute Resolution Committee because of the failure of the Applicant to make pre-deposit and insisted the applicant to make the pre- deposit for referring the dispute for arbitration in line with Clause 15.6 and 7.1.6 of Annexure A1 Agreement. 6. The contention of the Counsel for the Applicant is that the insistence of the respondents for pre-deposit for referring the dispute for arbitration by referring Clauses 15.6 and 7.1.6 of the Annexure A1 Agreement is unreasonable and the same is violative of Article 14 of the Constitution of India. 6. The contention of the Counsel for the Applicant is that the insistence of the respondents for pre-deposit for referring the dispute for arbitration by referring Clauses 15.6 and 7.1.6 of the Annexure A1 Agreement is unreasonable and the same is violative of Article 14 of the Constitution of India. The learned counsel further contended that the Applicant sought for appointment of an Arbitrator since the attempts of the Applicant to settle the dispute amicably and through the DRC failed on account of the illegal insistence of the respondents for payment of the disputed amount. The learned counsel contended that the appointment of the Arbitrator provided under clause 15.3 of Annexure A1 Agreement is not conditional or subject to Clause 15.6. Clause 15.3 provides that DRC has to give its recommendation within 45 days of the reference of the case. Even after the expiry of 45 days, the DRC did not give its recommendation and hence the resolution of the dispute through the DRC could not be taken as an objection against the appointment of the Arbitrator. Clause 15.6 if construed as mandating payment of the disputed amount as a pre-condition for invoking Arbitration clause, the same is violative of Article 14 in view of the decision of the Hon’ble Supreme Court in ICOMM Tele Limited v. Punjab State Water Supply and Sewerage Board and Another [ (2019)4 SCC 401 ] and Lombardi Engineering Limited v. Uttarakhand Jal Vidyut Nigam Limited [(2024) 4 SCC 341] 7. The learned Counsel for the respondents contended mainly that the Applicant has not complied with the pre-conditions for invoking the Arbitration clause under clause 15 of Annexure A1 Agreement. Annexure A1 Agreement provides for a three-tier Dispute Resolution Mechanism – firstly, through amicable settlement, secondly, in case the dispute remains unresolved amicably, by reference to the DRC of the 1 st respondent and thirdly, in case the dispute remains unresolved through the DRC, by reference to the Arbitral Tribunal. As per Clause 15.6 read with Clause 7.1.6, the payment of the disputed amount is a pre-condition for invoking the three-tier dispute resolution mechanism provided in Annexure A1 Agreement. As per Clause 15.6 read with Clause 7.1.6, the payment of the disputed amount is a pre-condition for invoking the three-tier dispute resolution mechanism provided in Annexure A1 Agreement. Learned counsel cited the decisions of the Hon’ble Supreme Court in Visa International Limited v. Continental Resources (USA) Limited [ (2009) 2 SCC 55 ] and M.K. Shah Engineers & Contractors v. State of M.P. [ (1999) 2 SCC 594 ] the decisions of the Delhi High Court in Sushil Kumar Bhardwaj v. Union of India [2009 SCC OnLine Del 4355] , Ved Prakash Mithal & Sons v. Delhi Development Authority and Another [2018 SCC OnLine Del 9884] and Sanjay Iron and Steel Limited v. Steel Authority of India [2021 SCC OnLine Del 4566] and the decisions of the Bombay High Court in Quick Heal Technologies Limited v. NCS Computech Private Limited and Another [2020 SCC OnLine Bom 693] and Capacite Infraprojects Ltd. v. T. Bhimjyani Realty Pvt. Ltd. [2023 SCC OnLine Bom 1657] in support of his contentions. 8. I have considered the rival contentions. 9. The execution of Annexure A1 Agreement and the existence of the Arbitration Clause therein are admitted by the parties. Admittedly, there is a dispute between the Applicant and the respondents with respect to the demand of a sum of Rs.7,31,46,240/- towards damage charges by the 1 st respondent from the Applicant on the ground that the Applicant achieved COD after a delay of 272 days. The contention of the Applicant is that the Application has legal justification for the delay as the Applicant is prevented by Force Majeure on account of the COVID Pandemic. The respondents have raised two objections against the invocation of the Arbitration clause. Firstly, the Applicant did not invoke the first two modes for the dispute resolution mechanism before invoking the third mode of dispute resolution, namely, the arbitration. Secondly, the Applicant has not made payment of the disputed amount in order to invoke the dispute resolution mechanism provided in the Annexure A1 Agreement. 10. In ICOMM Tele Limited (supra), the Hon’ble Supreme Court held that the clause insisting on pre-deposit for invoking the Arbitration clause is discriminatory and arbitrary. Secondly, the Applicant has not made payment of the disputed amount in order to invoke the dispute resolution mechanism provided in the Annexure A1 Agreement. 10. In ICOMM Tele Limited (supra), the Hon’ble Supreme Court held that the clause insisting on pre-deposit for invoking the Arbitration clause is discriminatory and arbitrary. In the said case, the Hon’ble Supreme Court struck down Clause 25(viii) of the Notice Inviting Tender therein which mandated pre-deposit of 10 per cent for invoking Arbitration on the ground that it would discourage arbitration, contrary to the object of declogging the court system and would render the arbitral process ineffective and expensive. The said decision in ICOMM Tele Limited is followed by the Hon’ble Supreme Court in Lombardi (Supra) in which the Hon’ble Supreme Court ordered to ignore the pre-condition to deposit total amount contained in clause 55 of the GCC on the ground that the same is violative of the fundamental rights guaranteed under the Constitution. The Hon’ble Supreme Court further held that the Court dealing with an Application under S.11(6) can consider whether a particular condition in the Arbitration clause is arbitrary or violative of Article 14 of the Constitution of India. In the light of the principles laid down in the aforesaid two decisions of the Hon’ble Supreme Court, I hold that Clause 15.6 so far as it insists payment of pre-deposit for the purpose of invoking the dispute resolution mechanism provided under Clauses 15.2 and 15.3 in Annexure A1 Agreement is illegal as it is arbitrary and violative of Article 14 and the same is to be ignored while considering the request to invoke the dispute resolution mechanism provided in Annexure A1 Agreement. Since I have found that the clause insisting on pre-deposit is liable to be ignored, the question whether clause 15.3 providing arbitration clause is subject to clause 15.6 providing pre-deposit does not arise for consideration. 11. The next question is whether the applicant is entitled to invoke the Arbitration Clause without resorting to the amicable settlement provided in clause 15.2 and without resorting to the resolution of the dispute through the DRC provided under the first part of Clause 15.3. On going through the scheme of the agreement, it is seen that a three-tier dispute resolution mechanism is provided in it. At first, the Applicant has to attempt an amicable settlement. On going through the scheme of the agreement, it is seen that a three-tier dispute resolution mechanism is provided in it. At first, the Applicant has to attempt an amicable settlement. In case the dispute remains unresolved amicably, the same shall be referred to the DRC. In case the dispute still remains unresolved after the recommendation of the Dispute Resolution Committee, the same shall be referred to the Arbitral Tribunal. It is clear from Annexure A29 letter dated 11.09.2023 issued by the 1 st respondent that the Applicant had requested for referring the dispute to the DRC and the 1 st respondent had constituted the DRC. But in the very same letter, the 1 st respondent insisted for payment of damage charges in accordance with clause 7.1.6 of Annexure A1 Agreement. On account of the insistence on such an unreasonable condition of pre-deposit, the respondents have made the resolution of the dispute through DRC nugatory. It is seen from Annexure A31 issued by the Applicant to the 1 st respondent that the Applicant has stated that the Applicant is willing to hold discussions in order to resolve the disputes amicably. The said letter was replied to by Annexure A32 by the 1 st respondent, stating that the refusal of the applicant to make payment of the disputed amount led to the closure of DRC proceedings. Even though the Applicant made an offer to hold discussions to resolve the disputes amicably, the respondent did not respond to the said offer. Thus, it is clear that the Applicant attempted to resolve the dispute through amicable settlement and through DRC, but the same did not take place on account of the unreasonable demand made by the respondents to make the pre- deposit, which I have already found arbitrary. Then the question arises whether the applicant is to be directed to start from the first mode of the dispute resolution mechanism provided in Annexure A1 Agreement without the condition to make the pre-deposit and to entertain the application for appointment of the Arbitrator only after exhausting the first two modes in the dispute resolution mechanism. 12. Let me analyse the decisions cited by the learned counsel for the respondents in this regard. 13. 12. Let me analyse the decisions cited by the learned counsel for the respondents in this regard. 13. In M.K. Shah( supra), the Hon’ble Supreme Court held that the steps preceding the coming into operation of the arbitration clause though essential are capable of being waived and if one party has by its own conduct or the conduct of its officials, disabled such preceding steps being taken, it will be deemed that the procedural prerequisites were waived and that the party at fault cannot be permitted to set up the bar of non-performance of prerequisite obligation so as to exclude the applicability and operation of the arbitration clause. 14. In Visa International (supra) , in answer to the contention 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, the Hon’ble Supreme Court held that from the correspondence exchanged between the parties it is clear that there was no scope for amicable settlement, for both the parties have taken rigid stand making allegations against each other; that 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 arbitration clause. In the case on hand, the parties have not taken a rigid stand. There is still scope for amicable settlement between the parties, especially when the parties have been continuing with the contract discharging their obligations. 15. In Sushil Kumar (supra) , the Delhi High Court rejected the Application for the appointment of an arbitrator as premature on the ground that there is no pleading or proof of compliance of the procedure prescribed in the Arbitration clause. In the said case, the decision of the Superintending Engineer was a pre-condition for invocation of arbitration clause. It is held that steps preceding arbitration are to encourage conciliation and the designate of the Chief Justice ought to encourage such mechanism for conciliation agreed upon by the parties. The said decision was followed by the Delhi High Court in the subsequent decision in Ved Prakash (supra), dismissing an Application for the appointment of an arbitrator, referring to non-compliance with the hierarchical manner of adjudication of the claims with specific timeline for the decision of each authority. The said decision was followed by the Delhi High Court in the subsequent decision in Ved Prakash (supra), dismissing an Application for the appointment of an arbitrator, referring to non-compliance with the hierarchical manner of adjudication of the claims with specific timeline for the decision of each authority. In the said case, the relevant clause required the party to explore the possibility of an amicable settlement before seeking the appointment of an arbitrator. In Sanjay Iron (supra), the Delhi High Court opined that the very purpose of keeping conciliation clause in any Agreement is to shorten the path for settlement of disputes between the parties and then directed the parties to first explore the possibility of resolution of disputes through conciliation. 16. In Quick Heal (supra) , the Bombay High Court dealt with a provision for amicable settlement prior to the arbitration and the same was held to be mandatory. In Capacite (supra), the Bombay High Court held that when the parties agreed that before they trigger the arbitration agreement, they would agitate their grievance through Dispute Adjudication Board, then it was the choice of the parties to so determine and once this choice is made, it must be adhered to, and in its absence Section 11 is not permitted to be invoked. 17. It is the choice of the parties to agree on a particular mode of dispute resolution when they enter into an agreement. The parties are free to frame a hierarchy by prescribing a stage-wise dispute resolution mechanism one after another. Courts will have to respect and follow such dispute resolution mechanism agreed by the parties, so long as the same does not offend any law. A hierarchy for dispute resolution is made for easy settlement of the disputes and to shorten the path for dispute resolution. It is always a lighter mode that is invoked first than a heavier mode to resolve the dispute. In view of the legal principle laid down by the Hon’ble Supreme Court and various High Courts, I hold that when a dispute resolution mechanism is provided in an Agreement, the parties can seek reference to arbitration provided therein only after exhausting the previous modes for dispute resolution. 18. In view of the legal principle laid down by the Hon’ble Supreme Court and various High Courts, I hold that when a dispute resolution mechanism is provided in an Agreement, the parties can seek reference to arbitration provided therein only after exhausting the previous modes for dispute resolution. 18. Let me examine the dispute resolution mechanism in the present case to check whether it prevents the Applicant from seeking appointment of an arbitrator without resorting to amicable settlement and settlement of the dispute through DRC. 19. It is clear from Annexure A29 and A31 that the Applicant requested for holding discussions for amicable settlement and reference to DRC for resolving the dispute. On account of the insistence of the respondents to make the pre-deposit as required under Clause 15.6, the dispute could not be attempted to be resolved through amicable settlement and through DRC. On account of the existence of Clause 15.6, the parties were under bonafide dispute with respect to the requirement of pre-deposit. Such dispute is settled only in this judgment. The parties have not terminated the Annexure A1 Agreement and they have still been continuing with the Annexure A1 Agreement. Hence, there is still scope for holding amicable settlement and dispute resolution through DRC to resolve the dispute. In such situation, the parties are to be relegated to the first two modes of dispute resolution mechanism before invoking the Arbitration Clause. In case the dispute is not resolved after resorting to the first two modes, the applicant can very well approach this Court with a fresh Request for appointment of an Arbitrator. 20. The learned counsel for the applicant pointed out that the DRC is constituted at the station level and in order to make the dispute resolution through DRC more powerful and effective, the officers from the head office of the 2 nd respondent are also to be included. The Applicant is free to make such requests to the respondents and the respondents shall consider such request while constituting the DRC. 21. The Applicant is free to make such requests to the respondents and the respondents shall consider such request while constituting the DRC. 21. In the light of the aforesaid findings, this Arbitration Request is dismissed, reserving liberty to the applicant to approach this Court again in case the dispute is not resolved after resorting to the first two modes in the dispute resolution mechanism provided in Annexure A1 Agreement and declaring that Clause 15.6 so far as it insists on the payment of pre-deposit for the purpose of invoking the dispute resolution mechanism provided under Clauses 15.2 and 15.3 in Annexure A1 Agreement is illegal and the same is to be ignored while considering the request to invoke the dispute resolution Mechanism provided in Annexure A1 Agreement.