IN THE HIGH COURT OF BOMBAY AT GOA APPLN. FOR APPOINTMENT OF ARBITRATOR NO. 5 OF 2009 SHRI. MORESHWAR SAWANT AND ANR., ... Applicants Versus MR. S. GIRISH JAGGAL ... Respondent Mr. S. M. Singbal, Advocate for the Applicant. Shri Subhash N. Kerkar, Advocate for the Respondent. Coram:- S. J. VAZIFDAR, J. Date:- 16th April, 2010 P.C. This is an application under Section 11 of the Arbitration and Conciliation Act, 1996, for the appointment of an Arbitrator on behalf of the Respondent. 2. The Agreement is admitted. The agreement contains the following clause, which pertains to Arbitration : "Any dispute between Seller and Buyer which may arise hereunder and which cannot be settled by mutual accord shall be referred to Arbitration. The Board of Arbitra- tion shall be composed of three Arbitrators one of whom shall be chosen by Seller, one by Buyer and the third by the two so chosen. If Seller or Buyer fails to choose an Arbitrator within thirty days after notice of commen- cement of Arbitration or if the the two Arbitrators fails to choose, a third Arbitrator within thirty days after their appointment, both parties can approach any court of law having GOA jurisdiction. Neither party shall take any dispute to any Court until such an Arbitration Award has been made. No dispute as to matter expressly stated in this Contract to be determined by "mutual agreement" or to be "mutually agreed" should be referred to Arbitration or otherwise determined than by Agreement of Seller and Buyer." 3. Relying upon the judgment of the learned Single Judge of this Court dated 19.03.2008, in Application for Appointment of Arbitrator no. 4 of 2007, it was contended that the application is not maintainable as the parties had not tried to settle the disputes. The judgment is of no assistance to the Respondent as it is clearly distinguishable on facts. In that case, the Arbitration clause specifically provide that the dispute stipulated therein must first be tried to be resolved through the intervention of a conciliator appointed by the parties to the dispute, who shall initiate through conciliation to resolve the dispute. The clause further provided that if the dispute could not be so resolved within one month, the same shall be referred for arbitration. 4. The Arbitration clause in the present case is entirely different. Further, it is obvious in the facts of this case that the disputes raised by the applicant could not be settled by mutual accord. The applicant had addressed a letter dated 22.12.2008, in which they set out their entire claim. There is nothing that even remotely suggests that the Respondent desires to discuss the matter or even arrive at some kind of settlement. It is clear, therefore, that the Respondent rejected the applicant's claim outright implying thereby that the matter could not be settled by mutual accord. By this letter the applicants had appointed an arbitrator and called upon the respondent to appoint an arbitrator. 5. The claim in the present case pertains to a demand for payment of goods sold and delivered by the applicant to the Respondent under the said contract. This is not one of the matters stipulated in the contract to be determined only by mutual agreement and, therefore, not be referred to arbitration. 6. It is not necessary to consider the disputes on merits pertaining to the supply. That is for the Arbitrator to decide. 7. In the circumstances, Mr. A. D. Salkar, Retired District Judge, is appointed as an Arbitrator on behalf of the Respondent. The learned Arbitrators shall proceed to resolve the disputes between the parties in accordance with the Arbitration and Conciliation Act, 1996. 8. The application is accordingly disposed of with no order as to costs. S. J. VAZIFDAR, J. arp/*