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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 ..... no occasion for resolution of dispute as provided in the Development Agreement. The stance of the petitioner amounted to failure on its part to appoint its arbitrator on receipt of the request to do so from the respondent - 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 merit in the submission of the learned senior counsel for the petitioner that the Designate Judge ought to have given an opportunity to the petitioner to nominate its arbitrator - Decided against appellants. - SLP(C) 33448 OF 2011 - - - Dated:- 21-2-2012 - R.M. LODHA AND H. L. GOKHALE, JJ. JUDGM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arbitrator nominated by the applicant (present respondent) and the arbitrator appointed by the Designate Judge on behalf of the petitioner (respondent therein) are required to appoint the third arbitrator before entering into reference. 5. The order dated September 9, 2011 is under challenge in this Special Leave Petition. 6. On December 16, 2011, a limited notice was issued by this Court to the respondent. The order issuing notice reads as follows: Mr. Pallav Shishodia, learned senior counsel for the petitioner submits that instead of senior advocate, who has been appointed as arbitrator by the designate Judge, a retired High Court Judge, stationed in Hyderabad, may be appointed. He further submits that the petitioner is wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrator and the disputes between the parties could not be decided by the arbitrator. Learned senior counsel, thus, submitted that the petitioner had not failed to appoint the arbitrator as contemplated under Section 11(4) of the Act. 10. Mr. Shyam Divan, learned senior counsel for the respondent, on the other hand, submitted that once an opportunity was given to the petitioner to nominate its arbitrator by notice dated December 10, 2010 and it failed to avail of the opportunity, it ceased to have any right to appoint the arbitrator in terms of the arbitration clause in the Development Agreement. In support of his submission, Mr. Shyam Divan relied upon the decision of this Court in Union of India vs. Bharat Battery Manufacturing Co. (P) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal shall be final and binding on the parties. The arbitration proceedings will be held only in Secunderabad and the courts situated in the Ranga Reddy District alone shall have the territorial jurisdiction to entertain the dispute. The provisions of Arbitration and Conciliation Act shall comply to the arbitration procedures. 25.2 Powers of Tribunal: The Tribunal shall be at liberty to (1) proceed summarily (2) avoid all rules, procedures and/or evidences that can be lawfully avoided by the mutual consent and/or directions by the parties and (3) award damages along with the final award against the party not complying with any interim award or order passed by the Tribunal. The Tribunal shall: (a) Make the award in English and within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 11 of the Arbitration Act for appointment of arbitrator on your behalf as well as you shall be solely responsible fro all costs and consequences. 15. The petitioner did respond to the above notice within 30 days of its receipt by sending its reply on January 10, 2011. Various pleas were raised in that reply and ultimately, the petitioner responded by stating it is stated that the question of appointment of Arbitrator does not raise either from your side or from our side. There is no arbitral dispute to be decided by the arbitrator. 16. From the above response, it is clear that the petitioner declined to appoint its arbitrator as according to it there was no question of appointment of arbitrator by either of the parties a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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