1. This application under Section 11 of the Arbitration and Conciliation Act, 1996 has been filed by applicant-Shri Basram Jat, inter alia praying for appointment of an independent arbitrator to adjudicate upon his dispute with the non-applicant-Birla Sun Life Insurance Co. Ltd. and its regional and branch office. Applicant is an insurance agent with IRDA licence no.539950 issued on 22.5.2009. He was serving as insurance advisor with the respondent-company since May, 2009. He is aggrieved by termination of licence code by the non-applicants.
2. Shri Rahul Agarwal, learned counsel for the applicant submits that applicant got business of 631 policies to non-applicant, out of which 41 death claims matured due to natural demise of insured persons. However, the non-applicant withheld his commission due on the above mentioned policies from April, 2013. The non-applicant also refused to materialise the new policies submitted by the applicant. According to the applicant when he enquired about the same, it transpired that non-applicant suspended his licence code from March, 2013 without any prior notice to him. It is contended that total outstanding amount of Rs. 2,42,113 till 31.8.2014 was withheld by the non-applicants, which was his hard earned commission. Due to the arbitrary and illegal action of non-applicant, the applicant is unable to lead comfortable life and provide standard livelihood to his family. The applicant requested the non-applicant to furnish reasons as to on what basis his code has been suspended without providing any opportunity of hearing vide letter dated 10.6.2013. The non-applicant instead of supplying reasons vide letter dated 26.6.2013 conveyed that in the previous financial year, they received 6 death claims under his code, which means that he has not done proper field investigation. The number of death claims received under the code of applicant was quite high, which was in violation to the IRDA regulations and Company's code of conduct. The non-applicant, therefore terminated his agency and cancelled the IRDA license with effect from 26.6.2013. The applicant then sent a legal notice dated 7.10.2014 through his advocate to the non-applicants to appoint sole arbitrator to settle the dispute. The non-applicant sent reply to the aforesaid notice on 24.12.2014 contending that no commission and renewal commission shall be payable after the Insurance Advisor License is cancelled or revoked for any reason. Even then if the applicant decides to initiate any legal action against the non-applicant, the same shall be defended by the non-applicant at his costs, risks and consequences.
3. Shri Rahul Agarwal, learned counsel for the applicant has invited attention of the Court towards the terms and conditions settled between the parties, according to which the applicant was approved to act as an insurance advisor to them. Clause 10 (d) regarding General Provisions of the said terms and conditions provides that any and all disputes that may arise between BSLI and the Insurance Advisor under or in relation to this Agreement shall be resolved amicably between the Parties through negotiation and conciliation within  days failing which the courts in Mumbai shall have exclusive jurisdiction over such disputes or differences. In the event of any dispute between the Insurance Advisors of BSLI and any of BSLI with BSLI, with regard to commission or any matter arising out of his activities as an Insurance Advisor, the Insurance Advisor shall refer the dispute to BSLI for resolution and the decision of the individual entity or committee appointed by BSLI to resolve the dispute shall be final and binding upon the Insurance Advisor.
4. Learned counsel submitted that in spite of above stipulation in the aforesaid clause that only courts in Mumbai shall have exclusive jurisdiction over such disputes or differences, this Court can nevertheless entertain the application. This is because no part of cause of action has arisen in the territorial jurisdiction of Mumbai courts and, therefore, parties by consent cannot confer jurisdiction on a court. Despite, therefore, the stipulation in clause 10(d), supra that courts at Mumbai shall have exclusive jurisdiction for such disputes or differences, the Courts in Rajasthan will continue to have jurisdiction because the applicant was appointed as insurance advisor in the State of Rajasthan and worked for the non-applicants as such at Ajmer. It is at Ajmer that Senior Manager of the Branch of the non-applicant at Ajmer conveyed to the applicant about termination of his code by communication dated 26.6.2013. Learned counsel for the applicant in support of his arguments has relied on the judgement of Supreme Court in Patel Roadways Limited, Bombay v. Prasad Trading Company - (1991) 4 SCC 270, Nandan Biomatrix Ltd. v. D-1 Oils Ltd.-(2009) 4 SCC 495, Rukmanibai Gupta v. Collector, Jabalpur-(1980) 4 SCC 556, and judgement of this Court at Principal Seat in Hindustan Metals Jodhpur v. Vishal Goods Transport Co.-2002 (4) WLC (Raj.) 728. Learned counsel submitted that mere non-use of the word 'arbitration' may not be of much significance if the intention of the parties to refer the dispute for resolution through Arbitrator can be otherwise gathered from the agreement. Reliance in this connection is placed on judgement of the Supreme Court in Punjab State Executive Engineer, Anandpur Sahib Hydel Construction Division v. Dina Nath-2007 Law Suit (SC) 606.
5. Per contra, Shri Prateek Kasliwal, learned counsel for the non-applicants submitted that the agency of the applicant and his code was terminated and his licence was cancelled by the non-applicant in accordance with the terms and conditions of the agreement. It was because of failure on the part of the applicant in conducting proper field investigation for the policies solicited by him, which resulted in early death claims. Clause 10(d) of the Advisor Contract can by no stretch of imagination be said and construed as arbitration agreement within the meaning of Section 7 of the Act of 1996. Further, in the aforesaid clause it has been explicitly stated that courts in Mumbai shall have exclusive jurisdiction over such disputes an differences between the parties. Therefore, even assuming but without admitting that said clause is an arbitration clause, the present application under Section 11 of the Act is not maintainable at Jaipur. Reliance is placed on the judgement of Supreme Court in Swastik Gases Private Ltd. v. Indian Oil Corporation Ltd.-(2013) 9 SCC 32. It was argued that when the clause of a contract is clear, unambiguous and specific, accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. When certain jurisdiction is specified in a contract, an intention to exclude all others from its operation may in such cases be inferred. Since clause 10(d) under the Advisor Contract is not an arbitration clause, the present application deserves to be dismissed. Learned counsel in support of his arguments has relied on the judgement of this Court in Mohammed Arif Contractor v. State of Rajasthan & Ors. - 2015 (4) WLC (Raj.) 32.
6. Shri Prateek Kasliwal has relied on the judgement in Karnataka Power Transmission Corporation Limited & Another v. Deepak Cables (India) Limited, (2014) 11 SCC 148 wherein it was held by the Supreme Court that when a clause do not provide for any procedure by which the concerned authority is required to act judicially, it cannot be treated as arbitration clause. It is therefore prayed that the application be dismissed.
7. I have given my thoughtful consideration to the rival submissions and perused the material on record.
8. Before proceeding to consider the question about the territorial jurisdiction, this has to be considered as preliminary issue whether clause 10(d) aforesaid is indeed an arbitration clause and if that question is decided against the applicant, the necessity to decide the question of territorial jurisdiction would stand obviated. In order to therefore fully comprehend the scope and contents of clause 10(d), it is considered apposite to reproduce the same as under:
"10.(d) Any and all disputes that may arise between BSLI and the Insurance Advisor under or in relation to this Agreement shall be resolved amicably between the Parties through negotiation and conciliation within  days failing which the courts in Mumbai shall have exclusive jurisdiction over such disputes or differences.
In the event of any dispute between the Insurance Advisors of BSLI and any of BSLI with BSLI, with regard to commission or any matter arising out of his activities as an Insurance Advisor, the Insurance Advisor shall refer the dispute to BSLI for resolution and the decision of the individual entity or committee appointed by BSLI to resolve the dispute shall be final and binding upon the Insurance Advisor."
9. The Supreme Court in Rukmanibai Gupta, supra, held that intention of parties to refer the dispute to arbitration can be inferred from the agreement. It is no requirement that the arbitration agreement should be in any particular form. No particular proforma or form has been provided for arbitration agreement either in the Act or elsewhere. What is required to be ascertained is whether the parties have agreed that if disputes arise between them in respect of the subject-matter of contract, such dispute shall be referred to arbitration, then such an arrangement would spell out an arbitration agreement.
10. In Dina Nath, supra while considering the provisions of Section 2(a) of the Arbitration Act of 1940, the Supreme Court observed that the said provision defines the 'arbitration agreement' to mean a written agreement to submit present or future differences to arbitration whether arbitrator is named therein or not. The definition clause clearly shows that an arbitration agreement is not required to be in any particular form. What is required to be ascertained is whether the parties have agreed that if any dispute arises between them in respect of the subject-matter of the contract, such dispute shall be referred to arbitration. It was further observed by the Supreme Court that though clause 4 of the Work Order in that case, the words "arbitration" and "arbitrator" are not indicated, but omission to mention the words "arbitration" and "arbitrator" cannot be a ground to hold that the said clause was not an arbitration agreement within the meaning of Section 2(a) of the Act. The essential requirements are that the parties have intended to make a reference to an arbitration and treat the decision of the arbitrator as final. That was a case in which clause 4 of the work order stipulated that any dispute between the department and the contractor shall be referred to the Superintending Engineer, Hydel Circle No.1, Chandigarh for orders and his decision will be final, acceptable and binding on both the parties. It was held by the Supreme Court that the essential requirements are that the parties have entered into a reference to the arbitration and treat decision of the Arbitrator as final as the conditions to constitute an arbitration agreement has been specified. Clause 4 of the work order shall be construed to be an arbitration agreement and dispute raised by the parties must be referred to the Arbitrator.
11. The Supreme Court in Dina Nath, supra relied on its earlier judgement in K.K. Modi v. K.N. Modi - 1998 (3) SCC 573 in which it was observed that test as to when a clause can be construed to be an arbitration agreement and held that when it appears from the same that there was an agreement between the parties that any dispute shall be referred to the arbitrator. The agreement of the parties to refer their disputes to the decision of the Tribunal must be intended to be enforceable in law and that the agreement must contemplate that the Tribunal will make a decision upon a dispute which is already formulated at the time when reference is made to Tribunal. It was held that clause 4 of the Work Order therein categorically states that the decision of the Superintending Engineer to decide the rights of the parties has also been derived from the consent of the parties to the Work Order and that he shall determine substantive rights of parties as the clause encompasses all varieties of disputes that may arise between the parties and does not restrict the jurisdiction of the Superintending Engineer to specific issues only and that the agreement of the parties to refer their disputes to the decision of the Superintending Engineer is intended to be enforceable in law as it is binding in nature. In those facts, clause 4 of the Work Order referred therein was held to be an arbitration clause.
12. This Court in Mohammad Arif Contractor, supra while holding clause 23 of the agreement between the parties to be not an arbitration clause has held that the Standing Committee for settlement of dispute as mentioned in clause-23 consist of the members, who are the Secretaries and the Engineers of the concerned department of the government, and therefore such committee by any stretch of imagination could not be termed to be a private tribunal. There is nothing in the said clause 23 to suggest that both the parties to the contract had any intention to be bound by the decision of the said Committee. On the contrary, Clause 51 of the said agreement states that in the event of any differences arising between the parties in respect of any matters comprised in the agreement, the same shall be settled by the competent Court having jurisdiction over the place, where the agreement is executed and by no other Court, after completion of proceedings under Clause 23 of the contract. From the bare perusal of the said clause 51, it clearly transpires that it was kept open for both the parties to approach the competent court having jurisdiction for settling the disputes, after the completion of proceedings under Clause 23 of the agreement in question. The non adjudicatory decision of the empowered committee under Clause 23, was made subject to the right of the parties to seek remedy as per Clause 51. Therefore such Clause 23 could not be termed as the arbitration Clause, held this Court.
13. In P. Dasaratharama Reddy Complex v. Government of Karnataka & Anr., (2014) 2 Supreme Court Cases 201, the judgement relied on by this Court in Mohammed Arif Contractor, supra, clause 29 of the agreement between the parties, the Chief Engineer, who had jurisdiction, was responsible to settle the dispute between the parties at the first instance making it binding on them. A perusal of clause 29 in the judgement indicates that therein though finality was given to the decision of the Chief Engineer, but it was open for the contractor that if he do not accept his decision, to approach the law courts for settlement of dispute. In that case, the Supreme Court was considering a case wherein appellant contractor filed an application under Sections 11(6) and (8) of the Act of 1996 for appointment of an arbitrator for adjudication of all the disputes pertaining to a contract. The Designated Judge dismissed the application observing that Clause 29 of the contract cannot be construed as an arbitration agreement or an arbitration clause for settlement of disputes. In terms of Clause 29(a) and other similar clauses, any dispute or difference irrespective of its nomenclature in matter relating to specifications, designs, drawings, quality or workmanship or material used or any question relating to claim, right in any way arising out of or relating to the contract designs, drawings etc. or failure on the contractor's part to execute the work, whether arising during the process of the work or after its completion, termination or abandonment had to be first referred to the Chief Engineer or the Designated Officer of the Department. Clause 29 further provided that the dispute shall, in the first place, be referred to the Chief Engineer who has jurisdiction over the work specified in the contract. The Chief Engineer shall within a period of ninety days from the date of being requested by the contractor to do so, give written notice of his decision to the contractor.
14. The Supreme Court in Vishnu (Dead) by LRs. v. State of Maharashtra & Others, (2014) 1 SCC 516 while considering Clause 30 of B-1 Agreements between the parties, which empowered Superintending Engineer to immediately resolve any controversy relating to specifications, designs, drawings, quality of workmanship or material used, etc. and providing that his decision shall be binding on contractor, held that such clause was not an arbitration clause as power conferred upon Superintending Engineer is in the nature of departmental dispute resolution mechanism meant for expeditious sorting out of problems that arise during execution of work and nothing can be inferred from Clause 30 that parties had conferred role of arbitrator upon Superintending Engineer. Power conferred upon the Superintending Engineer to take decision on matters enumerated in Clause 30 did not involve adjudication of any dispute or lis between Government and the contractor.
15. The Supreme Court in J. Kodanda Rami Reddy v. State of Andhra Pradesh & Others, (2011) 1 SCC 197 was dealing with a case where order appointing arbitrator was not challenged by the Government, even though para 2 of GOM dated 24.10.1983 provided that all claims above Rs. 50,000/- shall be laid before the Court of competent jurisdiction. Total 14 claims were raised by the appellant worth of which was more than Rs. 50,000/-, even then the Government did not challenge the order passed by the civil court appointing arbitrator under Section 8(2) of the Arbitration Act, 1940. The arbitrator rejected some of the claims and allowed some of them and filed award before the Civil Court. The Government filed objections for setting aside the award, which were rejected by the Civil Court, which made the award rule of the Court. The Government then filed appeal before the High Court. The appeal was allowed by the High Court holding that in view of the relevant clause in the GOM, arbitrator could not be appointed, therefore, while setting the award, appellant was permitted to convert his application under Section 8 of the Act into regular civil suit by carrying out necessary amendments. In those facts, the Supreme Court, relying on its earlier judgment in State of A.P. & Another v. Obulu Reddy, (1999) 9 SCC 568 held that aforesaid clause of the GOM cannot be held to be arbitration clause.
16. The Supreme Court in State of Orissa & Others v. Bhagyadhar Dash, (2011) 7 SCC 406, was dealing with a case in which Chief Justice of High Court appointed arbitrators holding that sentence in proviso to Clause 10 of conditions of contract was an arbitration agreement since it provided that decision of Superintending Engineer(SE) is final in the event of dispute between parties as to claim for increase in rates for certain items. The Supreme Court held that clause empowering Engineer-in-Charge to execute non-tendered additional items of work and if contractor is not satisfied with the determination of rate for such work, rate to be finally determined by Superintending Engineer, was not an arbitration clause because it does not (i) refer to arbitration as mode of settlement of disputes, (ii) provide for reference of disputes between parties to arbitration, (iii) make decision of SE binding on either party, (iv) provide or refer to any procedure which would show that SE has to act judicially after considering submissions of both parties, (v) disclose any intention to make SE an arbitrator in respect of disputes that may arise between parties, and (vi) make decision of SE final on any dispute other than on a claim for increase in rates for non-tendered items. It was then held that such decision of SE is not a judicial determination, but mere decision of one party to the contract, which is open to challenge in a court of law. Such clause was, therefore, held to be not an arbitration clause.
17. In Jagdish Chander v. Ramesh Chander & Others, (2007) 5 SCC 719, the Supreme Court held that it was not permissible for Chief Justice or his designate to appoint an arbitrator to adjudicate the dispute between the parties in the absence of an arbitration agreement or mutual consent. The principles as to in what situation arbitrator should be appointed culled out by the Supreme Court are as follows:
"(i) The intention of the parties to enter into an arbitration agreement shall have to be gathered from the terms of the agreement. If the terms of the agreement clearly indicate an intention on the part of the parties to the agreement to refer their disputes to a private tribunal for adjudication and an willingness to be bound by the decision of such tribunal on such disputes, it is arbitration agreement. While there is no specific form of an arbitration agreement, the words used should disclose a determination and obligation to go to arbitration and not merely contemplate the possibility of going for arbitration. Where there is merely a possibility of the parties agreeing to arbitration in future, as contrasted from an obligation to refer disputes to arbitration, there is no valid and binding arbitration agreement.
(ii) Even if the words 'arbitration' and 'arbitral tribunal (or arbitrator)' are not used with reference to the process of settlement or with reference to the private tribunal which has to adjudicate upon the disputes, in a clause relating to settlement of disputes, it does not detract from the clause being an arbitration agreement if it has the attributes or elements of an arbitration agreement. They are : (a) The agreement should be in writing. (b) The parties should have agreed to refer any disputes (present or future) between them to the decision of a private tribunal. (c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving due opportunity to the parties to put forth their case before it. (d) The parties should have agreed that the decision of the Private Tribunal in respect of the disputes will be binding on them.
(iii) Where the clause provides that in the event of disputes arising between the parties, the disputes shall be referred to Arbitration, it is an arbitration agreement. Where there is a specific and direct expression of intent to have the disputes settled by arbitration, it is not necessary to set out the attributes of an arbitration agreement to make it an arbitration agreement. But where the clause relating to settlement of disputes, contains words which specifically excludes any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it will not be an arbitration agreement. For example, where an agreement requires or permits an authority to decide a claim or dispute without hearing, or requires the authority to act in the interests of only one of the parties, or provides that the decision of the Authority will not be final and binding on the parties, or that if either party is not satisfied with the decision of the Authority, he may file a civil suit seeking relief, it cannot be termed as an arbitration agreement.
(iv) But mere use of the word 'arbitration' or 'arbitrator' in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example, use of words such as "parties can, if they so desire, refer their disputes to arbitration" or "in the event of any dispute, the parties may also agree to refer the same to arbitration" or "if any disputes arise between the parties, they should consider settlement by arbitration" in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement. Similarly, a clause which states that "if the parties so decide, the disputes shall be referred to arbitration" or "any disputes between parties, if they so agree, shall be referred to arbitration" is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses require the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future."
18. In International Amusement Limited v. India Trade Promotion Organisation & Another, (2015) 12 SCC 67
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7, the Supreme Court, following the judgment of P. Dasaratharama Reddy Complex(supra), held that essence of arbitration is adjudication of disputes by independent/neutral person/body. Clause 28 of the agreement in that case provided that in case of any dispute arising out of or in connection with this agreement, the disputes shall be referred to the sole arbitration of the Chairman, India Trade Promotion Organisation or his nominee whose decision/award shall be final, conclusive and binding on the parties. Such Clause providing that in case of disputes, decision/award by officer or authority of one of the parties shall be final, conclusive and binding on the parties was held to be not an arbitration clause. 19. The Supreme Court in Payal Chawla Singh v. Coca-Cola Company & Another, (2015) 13 SCC 699 held that presence of clause providing for exclusive jurisdiction of courts in a particular city in contract negates claim of existence of arbitration clause in contract. 20. In Karnataka Power Transmission Corporation Limited & Another, supra, Clause 48 of the agreement provided for disputes or differences arising out of performance of works to be referred to and settled by the Engineer within 30 days and his decision was to be final and binding on parties until completion of works. Construing the said clause as arbitration clause, Designate of the Chief Justice of the High Court appointed sole arbitrator to adjudicate matters in disputes. The Supreme Court held that said clause, not having provided any procedure by which Engineer is required to act judicially by following principles of natural justice or to consider submissions of both parties, cannot be treated as arbitration clause. 21. In view of law laid down by the Supreme Court in umpteen of decisions, it would be clear that Clause 10(d) in the present case cannot be held to be an arbitration clause in the present case because it does not prescribe arbitration as a mode of dispute resolution. Moreover, clause 10(d) has made decision of the individual entity or Committee approved by the BSLI binding only on the applicant and not on the insurance company. Besides, aforesaid clause 10(d) does not contain any stipulation that the authority would be required to give opportunity to the parties to give evidence and render his decision after hearing them. No procedure has been prescribed as to in what manner he will conduct his proceedings. This clause therefore cannot be held to have trappings of an arbitration agreement. In view of the fact that clause 10(d), supra is held to be not an arbitration clause, this Court is not required to go into the question of territorial jurisdiction. The application is therefore dismissed. Application dismissed.