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TMI Blog2014 (5) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the above agreement and nominated a former Judge of the High Court of Andhra Pradesh - Justice P.L.N. Sharma -on her behalf and called upon the present petitioner to nominate its arbitrator. 3. By reply dated January 10, 2011, the petitioner communicated to the respondent that since the Development Agreement has been cancelled by her, there was no question for resolution of disputes between the parties by the Arbitrator. The reply sent by the petitioner necessitated the invocation of Section 11 of the Arbitration and Conciliation Act, 1996 (for short "the Act") by the respondent and an application was made before the High Court of Andhra Pradesh requesting the Chief Justice or the Designate Judge to appoint the arbitrator/arbitrators ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter service, respondent has entered appearance through Mr. Y. Rajagopala Rao, advocate-on-record. Mr. Shyam Divan, learned senior counsel appearing for the respondent, at the outset, submitted that the respondent was not agreeable to the substitution of arbitrator appointed by the Designate Judge on behalf of the petitioner. 9. Mr. Pallav Shishodia, learned senior counsel for the petitioner vehemently contended that the Designate Judge ought to have given an opportunity to the petitioner to nominate its arbitrator. He referred to the suit filed by the petitioner against the respondent challenging the cancellation of the Development Agreement. He also submitted that the respondent made an application under Section 8 of the Act but that cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no application to the controversy involved in the present matter. The main question in National Highways Authority2 related to the process of appointment of arbitrator to be followed on resignation or termination of mandate of an arbitrator and one of the questions framed by this Court for determination was whether on resignation of one of the arbitrators, the statutory provision that comes into play was Section 15(2) or Section 11(6) of the Act. The other three questions noted in para 20 of the Report have also no bearing on the question with which we are concerned in the present matter. 13. The arbitration clause in the Development Agreement between the parties reads as follows: "25: Arbitration: 25.1 Tribunal: Disputes relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) The Tribunal shall be entitled to pass interim award granting interim relief to the parties. 25.3 Mechanism and Procedure: The procedure to be followed shall be decided by the Tribunal. The directions/award of the Tribunal shall be final and binding on the parties." 14. On the disputes having arisen between the parties, the notice was sent by the respondent to the petitioner on December 10, 2010. Paragraph 4 of the said notice reads as under: "I do hereby invoke the Arbitration Clause in the agreement bearing Doc. No. 2778 of 2006 and appoint Hon'ble Mr. Justice P.L.N. Sharma, a retired Judge of A.P. High Court, r/o Gandhi Nagar, Hyderabad as arbitrator within a week from the date of receipt of this notice to adjudicate all claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle Judge is in conformity with the decision of this Court in Bharat Battery Manufacturing Co. (P) Ltd.1 wherein this Court stated as follows: "Once a party files an application under section 11(6) of the Act, the other party extinguishes its right to appoint an arbitrator in terms of the clause of the agreement thereafter. The right to appoint arbitrator under the clause of agreement ceases after Section 11(6) petition has been filed by the other party before the Court seeking appointment of an arbitrator." 18 The petitioner's right to appoint its arbitrator in terms of clause 25 of the Development Agreement got extinguished once it failed to appoint the arbitrator on receipt of the notice dated December 10, 2010. There is no m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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