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TMI Blog2013 (4) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... raised before the arbitrator himself by making application U/s 16 of the Arbitration & Conciliation Act, 1996 - It is made clear that this court has not expressed any views as to whether the arbitrator appointed by the respondents is validly appointed or not and the said issue is kept open. No order for appointment of the arbitrator can be passed in this proceedings - The application is disposed of in the aforesaid terms - It is made clear that other issues which touches the jurisdiction of the arbitrator already appointed by the respondents are also to be decided by the learned arbitrator under section 16 of the Act. - Arbitration Application No. 22 of 2013 - - - Dated:- 9-4-2013 - R. D. Dhanuka,J. For the Applicant : Mr. Mayur Khandeparkar i/by Mr. R.D. Suvarna For the Respondent : Mr. V. P. Sawant i/by Mrs. Rekha Rajagopal JUDGMENT By this application filed under section 11(6) of the Arbitration Conciliation Act,1996, the applicant seeks appointment of arbitrator in terms of clause 2.31 of the agreement dated 14th November, 1995 entered into between the applicants and the respondent which clause is extracted as under : 2.31. ARBIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be Bombay. Subject as aforesaid, the provision of Indian Arbitration Act, 1940, and the statutory modifications or reenactments thereof and rules made thereunder for the time being in force shall apply to the arbitration proceeding under this clause. 2. The disputes arose between the parties. On 9th July, 2012, the applicants invoked arbitration clause and requested the respondents to appoint arbitrator as contemplated under the arbitration agreement to decide the disputes. By letter dated 26th July, 2012, the applicants sent reminder to the respondents to appoint arbitrator. It is not in dispute that by letter dated 5th November, 2012, the respondents appointed Mr. J.D. Parekh as sole arbitrator and informed the applicants about the said appointment. The learned arbitrator appointed by the respondents issued notice on 3rd January, 2013 and entered upon the reference. The first meeting was scheduled to be held by the learned arbitrator on 15th January, 2013. In the meanwhile on 9th January, 2013, the applicants filed this application under section 11(6)(a) of the Arbitration Conciliation Act, 1996. 3. Mr. Khandeparkar, the learned counsel for the applicant submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o if he does not appoint an arbitrator within 30 days. Learned Senior counsel for the appellant contends that even though Section 11(6) does not prescribe a period of 30 days, it must be implied that 30 days is a reasonable time for purposes of Section 11(6) and thereafter, the right to appoint is forfeited. Three judgments of the High Courts from Bombay, Delhi and Andhra Pradesh are relied upon in this connection. 14. The above decision has no application to the facts of this case as in the present case, the Arbitrator was already appointed before the appellant invoked Section 11 of the Act. The Counsel for the appellant contended that the Arbitrator was appointed after a long lapse of time and that too without any previous consultation with the appellant and therefore it was argued that the Chief Justice should have appointed a fresh arbitrator. We do not find much force in this contention, especially in view of the specific words used in the Arbitration clause in the Agreement, which is extracted above. This is not a case where the appellant requested and gave a notice period for appointment of arbitrator and the latter failed to comply with that requested. The 1st responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as processed and receipt register i.e., on 28.8.2002. It seems that the fact with regard to receipt of notice alongwith cheque oft 26.8.2002 (Ex.11) was probably not brought to the notice of the learned Single Judge. 13. In our opinion once the party failed to act in accordance with the agreed procedure of appointing Arbitrator as provided under Clause 23 of the agreement, the Chief Justice or the Judge designated by him is required to appoint Arbitrator after taking into consideration the provisions of Section 11 of the Act. 5. The learned counsel submits that it is held by the Rajasthan High Court that the once the respondent fails to appoint arbitrator within thirty days from the date of receipt of notice, the Chief Justice or his designate has power to appoint arbitrator by exercising powers under section 11(6) of the Arbitration Conciliation Act, 1996. 6. The learned counsel submits that in view of the fact that the arbitrator has not been appointed within thirty days, appointment of the arbitrator by the respondents after expiry of thirty days would be illegal being contrary to the procedure agreed upon between the parties and thus even if such arbitrator ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the respondent has exercised its right by appointing substitute arbitrator, in my view the proceedings under section 11(4) would not be maintainable. The proceedings under section 11(6) can be filed only if the parties fail to act as required under the agreed procedure and not otherwise. The respondents have already appointed Justice A.D. Mane (retired) as substitute arbitrator. In my view, unless there is vacancy, the application filed under section 11(6) of Arbitration Act, 1996 is not maintainable. I am therefore, of the view that the present application is not maintainable and the same is therefore, rejected. There shall be no order as to costs. 9. In my view, the Hon'ble Chief Justice or his designate cannot decide under section 11(6) of the Arbitration Conciliation Act, 1996 as to whether the appointment of the arbitrator already made by the respondents in terms of the arbitration agreement is valid or illegal. The fact remains that the respondents have already appointed arbitrator, may be after expiry of thirty days of receipt of notice invoking arbitration clause by the applicants. The question as to whether such appointment is in terms of the agreed procedure pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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