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TMI Blog2008 (8) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... Contracts (P) Ltd. v. Bharat Petroleum Corpn. Ltd. (2007 (5) SCC 304) and Union of India v. Bharat Battery Mfg. Co. (P) Ltd. (2007 (7) SCC 684) the matter has been referred to a larger Bench and that is how these cases are before us. 3. In both the decisions the question related to appointment of arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 (in short the 'Act'). In Bharat Battery's case (supra) the earlier decision in Ace Pipeline's case (supra) was apparently not brought before the Bench as a result of which there appears to be some confusion. As noted above, the scope and ambit of Section 11(6) of the Act relating to appointment of arbitrator falls for consideration in these cases. 4. The stand of Mr. Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give due regard to any qualification required for the Arbitrator by the agreement of the parties and other considerations as are likely to secure the appointment of an independent and impartial arbitrator. It is pointed out that both these conditions are cumulative in nature. Therefore, the Court should not directly make an appointment. It has to ensure first that the provided remedy is exhausted and the Court may ask to do what has not been done. 5. In response, Mr. Ashok Desai, learned senior counsel appearing for some of the parties who have sought for appointment of Arbitrator submitted that the expression 'due regard' relates to some of the factors which have to be considered and it is not mandatory that the qualifications and the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (6) Where, under an appointment procedure agreed upon by the parties,- (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matters referred to in subsections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration the reference to "Chief Justice in those sub-sections shall be construed as a reference to the "Chief Justice of India". (b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to "Chief Justice" in those sub-sections shall be construed as a reference to, the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the court referred to in that clause, to the Chief Justice of that High Court." 8. The crucial sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to secure the appointment of an independent and impartial arbitrator. 11. A bare reading of the scheme of Section 11 shows that the emphasis is on the terms of the agreement being adhered to and/or given effect as closely as possible. In other words, the Court may ask to do what has not been done. The court must first ensure that the remedies provided for are exhausted. It is true as contended by Mr. Desai, that it is not mandatory for the Chief Justice or any person or institution designated by him to appoint the named arbitrator or arbitrators. But at the same time, due regard has to be given to the qualifications required by the agreement and other considerations. 12. The expression 'due regard' means that proper attention to several ..... X X X X Extracts X X X X X X X X Extracts X X X X
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