1. The Applicant ­ Balasore Alloys Limited is before this Court in this petition filed under Section 11(6) read with Seciton 11(12)(a) of the Arbitration  and Conciliation Act, 1996 (‘Act, 1996’ for short) praying that a sole arbitrator be appointed to adjudicate upon all disputes that have arisen between the parties in connection with the 37 purchase orders referred to in the application.   Alternatively, it is prayed that the second arbitrator be appointed on account of the failure of the respondent – Medima LLC to nominate an arbitrator in terms of the contracts.

6. Having taken note of the averments contained in the pleading and the contentions urged by the learned senior counsel for the respective parties, it is evident that the parties having entered into a business transaction; certain disputes have arisen between them which is to be resolved through arbitration. To that extent the parties are also in agreement. The issue for consideration however, is with regard to the appropriate clause that will operate providing for arbitration and will be applicable in the factual matrix herein.

9. Having taken note of the arbitration clause existing in two different set of documents between the same parties relating to the same transaction; in order to harmonise or reconcile and arrive  at   a  conclusion   as  to   which   of   the clauses would be relevant in the instant facts;  it would be necessary   for   us   to   refer to the   manner   in   which   the arbitration clause was invoked and the nature of the dispute that   was   sought   by   the   parties   to   be   resolved   through arbitration.  In that regard a perusal of the documents will reveal   that   in   the case   on   hand   the   applicant   had   not initiated the process of invoking the arbitration clause. On the other hand a notice dated 13.03.2020 (Annexure A­41) was issued on behalf of the respondent by its attorney to the applicant referring to the breach of the agreement dated 31.03.2018 (Umbrella agreement/Pricing agreement) and as per the procedure provided under Clause­23 of the said agreement an opportunity was provided to amicably resolve the   matter;   failing which it was indicated that the respondent would approach the International Chamber of Commerce (ICC) in 30 days. It is in reply to the said notice dated 13.03.2020 issued by the Respondent on 13.04.2020, the applicant herein disputed the claim put forth by the respondent under the Agreement dated 31.03.2018 referring to   it   as   the   Pricing   Agreement.   Further,   the   applicant thereafter referred to the nature of their claim and thereon proceeded to indicate that the constitution of the Arbitral Tribunal and conduct of arbitration proceeding shall be in accordance with Clause­7 of the contract terms forming part of and governing all individual contracts. 

10. In the above backdrop, when both, the purchase order as also the Pricing Agreement subsists and both the said documents contain the arbitration clauses which are not similar to one another, in order to determine the nature of the arbitral proceedings the said two documents will have to be read in harmony or reconciled so as to take note of the nature of the dispute that had arisen between the parties which would require   resolution   through   arbitration   and thereafter arrive at the conclusion as to whether the instant application filed under Section 11 of the Act, 1996 would be sustainable   so   as   to   appoint   an   arbitrator   by invoking Clause­7   of   the   purchase   order;   more   particularly   in   a situation where   the   Arbitral   Tribunal   has   already   been constituted in terms of Clause­23 of the agreement dated 31.03.2018. 

11. To determine this aspect, apart from the fact that the respondent was the first to invoke the arbitration clause with reference to   the   Agreement   dated 31.03.2018,   it   is noticed that in the reply dated 13.04.2020 issued by the applicant it is in the nature of invocation of the arbitration clause by the applicant……….

12. A close perusal of the extracted portion would indicate that the reference made by the applicant with regard to the price and the terms of the payment governing individual contracts is with reference to the Pricing Agreement which in fact is the Agreement dated 31.03.2018. In that context, the terms 5, 8, 9 and 10 of the Pricing Agreement would indicate that   it   provides   for   the   mechanism   relating purchases   and   sales;   final   price,   payment   of   provisional price and adjustment of advance, determination of the final sale price and monthly accounting and payment. On taking note of the same, a perusal of the contract terms in the purchase   order   relied upon by the applicant   does not provide for such determination of   pricing except the purchase order referring to the price of the quantity ordered for and the special terms relating to provisional price etc. Therefore, in that circumstance the nature of dispute raised by   the   applicant themselves   in   the   reply   notice   dated 13.04.2020   will   indicate   that   those aspects are to be determined   in   terms of the provisions contained   in   the Agreement   dated   31.03.2018   which   resultantly   will   be relevant for payment to be made under each of the purchase order. Therefore, even if disputes are raised relating to the contract terms, the pricing, deductions etc. will relate to the main agreement   and   the   Arbitral   Tribunal   constituted thereunder can go into other issues if any arises under the contract terms of the individual purchase order as well.

14. In that view of the matter, when admittedly the parties had entered into the agreement dated 31.03.2018 and there was consensus ad­idem to the terms and conditions contained   therein which is comprehensive and encompassing   all terms of the transaction and such agreement also   contains  an arbitration clause which is different   from   the   arbitration   clause   provided   in   the purchase order which is for the limited purpose of supply of the produce with more specific details which arises out of Agreement dated 31.03.2018; the arbitration clause contained in  Clause­23 in the main agreement dated 31.03.2018 would govern the parties insofar as the present nature of dispute that has been raised by them with regard to the price and the terms of payment including recovery etc. In that view, it would not be appropriate   for   the applicant to invoke Clause­7 of the purchase orders more particularly when the arbitration clause contained in the Agreement dated 31.03.2018 has been invoked and the Arbitral Tribunal comprising of Mr. Jonathan Jacob Gass, Mr. Gourab Banerji and Ms. Lucy Greenwood has already been appointed on 22.06.2020.