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TMI Blog2015 (2) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... tor as a sole Arbitrator. 2. The brief facts of this case are that the petitioner and the respondent had entered into a contract which was subsequently terminated by the respondent and the respondent had raised a demand of sum of Rs. 48,05,76,414/- vide their letter dated 13.02.2014. The petitioner had refuted the said liability vide their letter dated 06.03.2014. The respondent, thereafter, invoked the arbitration clause 39(2) of the agreement vide their letter dated 14.05.2014 and informed the petitioner that they had nominated Justice S.N. Aggarwal (Retd.) as their Arbitrator and called upon the petitioner to appoint its nominee Arbitrator. The arbitration clause had required the petitioner to nominate their Arbitrator within 60 days of the receipt of the notice from the respondent. However, instead of nominating their Arbitrator, the petitioner sought extension of time till 01.08.2014 on the ground that they were unable to nominate their Arbitrator due to unforeseen circumstances vide their letter dated 20.05.2014. Despite that the petitioner did not nominate his Arbitrator and wrote a letter dated 31.07.2014 seeking further time of 30 days for nominating their Arbitrator. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arbitrator and also quash the appointment of the nominated Arbitrator as a sole Arbitrator. 5. It is further argued by the learned counsel for the petitioner that the right of a party to appoint an Arbitrator does not automatically cease, but continues till the application under Section 11(6) of the Act is made and, therefore, it cannot be said that the petitioner had since nominated its Arbitrator after 60 days, his nomination is invalid. Reliance has been placed on Bharat Sanchar Nigam Limited and Another vs. Dhanurdhar Champatiray (2010) 1 SCC 673. 6. Learned counsel for the respondent has not filed any reply, but has argued the matter. It is argued that the present petition under Section 11(6) of the Act is not maintainable. It is submitted that under Section 11(6), a petition can be filed against a defaulting party and a defaulting party, without resorting to the terms of the agreement, cannot move the Court under Section 11(6) of the Act. It is also submitted that the petitioner itself is a guilty party. It is submitted that as per arbitration clause 39, a procedure has been prescribed and the petitioner has not adhered to the said procedure and, therefore, cannot invoke t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties fail to appoint an Arbitrator within 60 days. The clause prescribes that in such eventuality, the Arbitrator appointed by the party invoking the arbitration clause shall become the sole Arbitrator to conduct the arbitration. From the bare reading of this clause, it is apparent that the clause itself prescribes a mode of appointment of an Arbitrator in case of default of either of the parties to nominate its Arbitrator for constitution of the Arbitral Tribunal, within 60 days 11. In the present case, the admitted facts clearly show that the respondent invoked the arbitration clause and nominated its Arbitrator and the petitioner did not nominate his Arbitrator within 60 days, the period prescribed in the clause. The contention of the petitioner is that on receiving a letter from the respondent invoking the arbitration clause, they wrote a letter dated 20.05.2014 and asked the respondent to give them time up to 01.08.2014 for appointment of the Arbitrator. It is pertinent to mention here that the petitioner did not appoint their Arbitrator even by 01.08.2014, the time they sought from respondent for appointment of the Arbitrator. Their contention that they did so is contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given careful consideration to the rival contention and has also gone through the case law relied upon by the petitioner. From the facts of the case supra, it is apparent that it was the respondent Dhanurdhar Champatiray who had invoked the arbitration clause and when the appellant, i.e., BSNL failed to appoint the Arbitrator within the stipulated period, approached the Court under Section 11(6) of the Act for appointment of the Arbitrator. The contention of BSNL was that they had already appointed an Arbitrator before the respondent Dhanurdhar Champatiray could approach the Court under Section 11(6) of the Act. Herein in this case, the petitioner is the defaulting party, who had failed to appoint/nominate his Arbitrator in terms of the arbitration clause binding both the parties. He could not take advantage of his own wrong. In view of this, the ratio laid down by the Supreme Court in Bharat Sanchar Nigam Limited (supra) has no application to the facts of this case. 13. An arbitration agreement is an independent agreement and is binding on both the parties. It is a settled law that neither of the parties can unilaterally change the terms and conditions of any agreement. The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 07.08.2014 as their Director was out of station and could not sign the letter earlier. 14. The relevant portion of the said letter is reproduced as under:- "The said letter dated 02.08.2014 was sent by us on 07.08.2014 as our Director was out of station and could not sign the letter earlier. You have also received our letter dated 02.08.2014 after you have issued the letter dated 06.08.2014 and before we received your letter dated 06.08.2014." If the petitioner is himself a defaulting party, he cannot move the Court under Section 11(6) of the Act. Provisions under Section 11(6) of the Act can be invoked against a defaulting party and not by a defaulting party. 15. In case of National Highways Authority of India (supra), the Supreme Court has held as under:- "The parties have entered into a contract after fully understanding the import of the terms so agreed to from which there cannot be any deviation. The courts have held that the parties are required to comply with the procedure of appointment as agreed to and the defaulting party cannot be allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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