ORDER
Sanjay Kishan Kaul, J.
1.
These three appeals raise common question as regards the scope and effect of Section 11(2) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act).
2.
The disputes between the parties arise out of the lease deed dated 28.10.1993 in respect of premises A-1/26, Safdarjang Enclave, New Delhi by the appellant in favor of the respondent. The said lease deed incorporated an arbitration clause. In view of the failure of the respondent to hand over vacant possession in terms of the lease deed despite a letter dated 6.11.1996, the arbitration clause was invoked by the appellant. The arbitrator entered upon reference and published his Award on 28.4.1997 which was subsequently corrected for clerical error vide order dated 29.7.97. The arbitration clause envisaged the appointment of the Arbitrator with notice to the other party and the other party was required to nominate their own arbitrator within 15 days of the service of such notice. The two Arbitrators were required to appoint an Umpire and the place of the arbitration was Delhi. The arbitration clause further provided a consequence of the failure of the other party in appointing his arbitrator as under:
“If, however, the other party does not appoint its Arbitrator within 15 days from the receipt of such notice, the Arbitrator appointed by the party which has already appointed its Arbitrator shall be the sole Arbitrator and his award shall be final and conclusive.”
3.
The respondent in all the three appeals failed to appoint their Arbitrator in response to the appointment of the Arbitrator by the appellant. The appellant appointed its Arbitrator vide letter dated 6.11.96 and thereafter four registered letters were issued on 25.11.96, 4.12.96, 16.12.96 and 7.1.97. It was after a lapse of more than 60 days that the appellant on 7.1.97 requested the Arbitrator appointed by them to act as the Sole Arbitrator in terms of the arbitration clause.
4.
The intimation of the publishing of the Award was sent to the respondent but no objections were filed under Section 34 of the Act. The respondent did not comply with the award despite registered notice by the appellant calling upon respondent to do so. These notices were sent on 13.4.98 and 8.5.98. Petition was filed by the appellant for the decretal amount of Rs.15,51,022/22 plus future damages plus interest at the rate of 2% per annum on the basis of the Award and possession of premises. It was at this stage that the respondent filed objections to the execution of the decree. It may be stated that he premises was vacated on 30.5.1999 during the pendency of the execution petition.
5.
The issue which arose before the learned single Judge was the effect of such unilateral reference to the arbitrator or the effect of non-appointment of the Arbitrator by the other party. The contention before the learned Single Judge by the respondent was that Section 11 of the Act prescribe the procedure for appointment of Arbitrator and in view of Section 11(6)(c), the appellant should have approach the Chief Justice or any person or institution designated by him to take the necessary measure for appointment of the Arbitrator on behalf of the respondent. On the other hand the appellant submitted before the learned Single Judge the reading Section 11(6)(c) would show that this was so required to be done unless the agreement on the appointment procedure provide other means for securing the appointment. It was thus the contention of the appellant that the arbitration clause provided an agreement on the appointment procedure which was that the Arbitrator appointed by the first party would act as a sole Arbitrator. The relevant provision of Section 11 is reproduced as under:
“11. Appointment of arbitrators.-
(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure fr appointing the arbitrator or arbitrators.
(6) Where, under an appointment procedure agreed upon by the partes,-
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail the 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 person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.”
6.
The aforesaid aspect of Section 11(6)(c) was considered by the Bombay High Court in Open Sea Maritimes Inc. Vs. R.Pyarelal International Pvt. Ltd. 1999 (2) Arb.LR 383 (Bombay). In the said case also there was a provision for the arbitrator appointed by the fist party to act as a Sole Arbitrator in case of the failure of the other party to appoint their Arbitrator. The Bombay High Court thus held that in view of Section 11(6) providing for the procedure in case of an agreement on appointment other then the mode of approaching the Chief Justice, the sole arbitrator rightly conducted the proceedings. We are in agreement with this interpretation of Section 11 of the Act and the judgment applies on all fours in the present case. The question of the appellant approaching the Chief Justice through the proceedings in the Court would have arisen only if this agreement was not contained in the arbitration clause i.e. the agreement that in case of failure of the other party to appoint arbitrator, the first arbitrator can act as the sole arbitrator after the lapse of the period of 15 days from the receipt of notice of appointment of the Arbitrator. There is another aspect material in the present case. Under Section 34(2)(v) of the the Act the respondent could have invoked the jurisdiction of the Court to set aside the Award if the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. This the respondent did not do. In the absence of any objection, the arbitral award is to be final under Section 35 of the Act and it is liable to be enforced as a decree under Section 36 of the Act. Needless to say that it is settled position of law that the executing court does not go behind the decree. The Supreme Court in the case of Bhawarlal Bhandari Vs. M/s Universal Heavy Mechanical Lifting Enterprises JT 1998 (8) SC 393 while dealing with the case of objections under the Arbitration Act, 1940 held that the executing court could not go beyond decree which was not a nullity. Thus the respondent failed to exercise their rights even under Section 34 of the Act.
7.
The Learned Single Judge has proceeded to dismiss the execution petition in view of his conclusion that the non-appointment of the second arbitrator may not fall in the latter clause of sub section (6) of the Act and it may be in conflict with the provisions of Part-I of the Act requiring two Arbitrators to be appointed. We are unable to agree with the conclusion of the learned Single Judge that the Award made is a nullity or totally without jurisdiction in view of the sole arbitrator proceeding with the matter. As stated above, the question of invocation of the jurisdiction of the Chief Justice to appoint an arbitrator in terms of Section 11 would have arisen only in the absence of an agreement providign the alternate procedure on the non-appointment of the Arbitrator by one party. In the present case, there was an agreement that the arbitrator appointed by one party would proceed as sole Arbitrator on the failure of the other party to appoint an Arbitrator. This coupled with the failure of the respondent to file any objection within limitation under Section 34(2)(v) of the Act leaves no doubt in out mind that the execution petition was maintainable and the Award was liable to be executed.
8.
The consequence is that the impugned judgment dated 1.12.1999 is set aside and the Award is liable to be enforced as a decree of the Court. The objections filed by the respondent are thus dismissed.
9.
All the three Execution petitions 122/98, 123/98 and 124/98 are thus restored to their original number. Learned Single Judge shall proceed in accordance with law to execute the Award dated 28.4.97 modified on 29.9.97 as a decree of the Court.
10.
Parties are left to bear their own costs.
11.
Parties are directed to appear before the learned Single Judge on 3rd September, 2001 for further directions.