JUDGMENT
V.S. Aggarwal, J.
1. This is a petition filed by Shri Amritesh Kumar Roy, hereinafter described as the petitioner under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short the Act). the petitioner prayers for a direction to file the original arbitration agreement and for appointment of an independent arbitrator and for making an order of reference with respect to the disputes mentioned in paragraph 7(13) of the petition.
2. It is asserted by the petitioner that in response to the invited tenders for execution of the word name and styled as ‘Supply of Bed Rools to the passengers’. In response to the invitation to tenders the petitioner submitted its tender which was accepted. An agreement was executed. Clause 45 for the settlement of disputes provided for arbitration. It is the case of the petitioner that dispute had arisen because the petitioner had commenced service of the bed rolls with effect from 10th July 1996. The other details pertaining to the disputes are not relevant because they referred to the merits of the matter.
3. The petitioner asserts that despite the receipt of the letter from the petitioner with respect to the disputes the respondent did not appoint the arbitrator and thus had waived the right and abdicated the authority to appoint the same. It is accordingly prayed that this court should direct the respondents to file the agreement and appoint an independent person as an arbitrator for adjudication of the claims stated in paragraph 7(13) of the petition. Notice had been issued of the petition and it had been contested.
4. During the course submissions learned counsel for the respondent pointed that the arbitrator has already been appointed and therefore the petition as such has become infructuous. It was denied that the petitioner has any claim or is entitled to any such amount.
5. It becomes unnecessary for this court to ponder further with the said contention. According to the respondents learned counsel, there is no period within which the arbitrator is to be appointed under Section 11(6) of the Act and once during the pendency of the petition arbitrator has been appointed there is no question of any other person being so appointed.
6. Section 11(6) of the Act reads as under:-
(6) Where, under an appointment procedure agreed upon by the parties,-
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to 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.
Perusal of the provision reproduced above clearly show that if the party fails to act as required under the procedure then the other party can request the chief Justice or any other institution or person nominated to take the necessary measures. Indeed it is not provided as to in what period of time the arbitrator has to be so appointed.
7. The answer is provided by the decision of Supreme Court in the case of Datar Switchgears Ltd vs. Tata Finance Ltd & Anr. 2000(3) Arb. LR 447:
19. So far as cases falling under Section 11(6) are concerned – such as the one before us – no time limit has been prescribed under the Act, whereas a period of 30 days has been prescribed under Section 11(4) and Section 11(5) of the Act, In our view, therefore, so far as Section 11(6) is concerned, if one party demands the opposite party to appoint an Arbitrator and the apposite party does not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the Court under Section 11, that would be sufficient. In other words, in cases arising under Section 11(6) if the opposite party has not made an appointment within 30 days of demand, the right to make appointment is not forfeited but continues, but an appointment has to be made before the former files application under Section 11 seeking appointment of an Arbitrator. Only then the right of the opposite party ceases. We do not therefore agree with the observation in the above judgments that if the appointment is not made within 30 days of demand, the right to appoint an Arbitrator under Section 11(6) is forfeited.”
8. The findings of the Supreme Court make the position clear and establishes beyond any pale of controversy that if the opposite party had not made the appointment within 30 days of the demand the right is not lost but the appointment must be made before the petitioner files the application under Section 11. In the present case in hand, the application had been filed before the appointment of the arbitrator was made in May, 2000. Therefore, the respondent’s plea that they have now appointed the arbitrator looses all its significance and thrust. Necessarily it has to be rejected.
9. This Court in the case of Bharat Lal vs. Municipal Corporation of Delhi (AA No. 283/99) has also taken the same fact into consideration. A similar plea was raised and was rejected. Therefore, necessarily it must be held that the arbitrator so appointed by the respondent indeed cannot act because the respondent had lost the right to appoint the said arbitrator.
10. In the result the petition is allowed. During the course of submissions it was suggested that a retired Judge of a High Court may be appointed as the arbitrator. Accordingly, Shri P.K. Jain, retired Judge of the Punjab & Haryana High Court is appointed as the arbitrator. The arbitrator so appointed shall entertain the reference and issue notices to the parties in pursuance of the arbitration agreement and pass the award in accordance with the agreement and in law. The arbitrator shall settle his fees.