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TMI Blog2015 (1) TMI 1494X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd. [ 2000 (10) TMI 873 - SUPREME COURT ], is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by the ICADR. The said appointment, therefore, is clearly invalid in law. Shri Justice S.R. Sathe, a retired judge of the Bombay High Court appointed as the Arbitrator on behalf of the respondent Corporation - petition allowed. - RANJAN GOGOI, J. For the Petitioner : Mr. K. V. Sreekumar,Adv. For the Respondent : Mr. Ashish Wad,Adv., Mr. Anshuman Srivastava, adv., M/s. J. S. Wad Co., Adv. JUDGMENT 1. A works contract No. 3AAA dated 20th December, 2000 was executed by and between the petitioner and the Municipal Corporation of Greater Mumbai (respondent No. 1 herein) for execution of city tunnel rehabilitation works for the purposes of tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two arbitrators so appointed by the parties, and shall act as presiding arbitrator. In case of the failure of the two arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the presiding arbitrator shall be appointed by the International Centre for Alternative Dispute Resolution in India. For the purposes of this clause 67, the term Foreign Contractor means a contractor who is not registered in India and is non juridical person created under India Law. III. Neither party shall be limited in the proceedings before such tribunals to the evidence nor did arguments already put before the Engineer or the Board, as the case may be, for the purpose of obtaining its/his said Recommendations/ decision. No such Recommendations/decision shall disqualify the Engineer or any of the members of the Board, as the case may be, from being called as a witness and giving evidence before the arbitrators or any matter whatsoever relevant to the dispute. IV) Arbitration may be commenced prior to or after completion of the works, provided always that the obligations of the Employer, the Engineer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted arbitrators shall appoint the presiding arbitrator, and-(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the appointed arbitrators fail to agree on the presiding arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the ICADR. (3) 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 ICADR. (4) A decision by the ICADR on a matter entrusted to it by sub-rule (2) or sub rule (3) will be final and binding on the parties. (5) Upon receipt of a request under sub-rule (2) or sub-rule (3), the ICADR will- (a) make the appointment as promptly as possible, (b) follow the procedure specified in rule 35, (c) have regard to- (i) any qualifications required of the arbitrator by the agreement of the parties (ii) such considerations as are likely to secure the appointment of an independent and impartial arbitrator; and (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, this application/petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short the Arbitration Act ) was filed on 21st August, 2014. 5. Mr. Shamik Sanjanwala, learned counsel appearing for the petitioner has submitted that the arbitration clause in the agreement read with Rules 5 and 35 of the ICADR Rules embody a procedure that was agreed upon by the parties with regard to appointment of the arbitrator(s). Clearly and evidently, the appointment of Mr. Justice A.D. Mane by the respondent Corporation is contrary to the procedure agreed upon inasmuch as under the relevant Rules governing the ICADR, the said Body was required to communicate the respondent Corporation a panel of three names and it is from the said panel that the respondent Corporation was required to name its Arbitrator. The Rules do not contemplate an alternative procedure giving the respondent Corporation liberty to appoint an Arbitrator of his choice once the respondent Corporation failed to appoint its arbitrator within the agreed upon period of thirty days from the receipt of the notice from the petitioner. The appointment of Mr. Justice A.D.Mane as Arbitrator is, therefore, non-es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the aforesaid view was expressed cannot be lost sight of. In Antrix (supra), appointment of the Arbitrator, as per ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Limited (supra), the party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the Arbitrator. In the present case, the situation is otherwise. 9. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure between the parties contemplated the appointment of the arbitrator by second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. (supra) may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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