JUDGMENT
Vikramajit Sen, J.
1. Learned counsel for the respondent states that he was briefed two days ago and that he would like to file a reply.
2. So far as Section 11 of the Arbitration and Conciliation Act, 1996 is concerned, there can be no gainsaying that the function that the Court discharges is of an administrative nature. It is certainly arguable that even a notice to the opposite party may not be necessary. But nonetheless Courts are adopting the procedure of hearing the opposite party, in the interest of justice. This is not a fresh matter in view of the fact that the petitioner/applicant had to approach this Court for the appointment of Arbitrator under Section 11 because of the obduracy of the respondent in not following the legal procedure. Request for filing a reply is declined. In B.W.L. v. M.T.N.L., , I have held that a party loses its contractual right to appoint/nominate the Arbitrator if it fails to act within the stipulated period.
3. It has next contended that the power to appoint the Arbitrator, since a vacancy has occurred, rests with the President of the respondent company. So far as this is concerned, in my opinion once the Court has intervened and has appointed an Arbitrator, a jural novation to the Arbitration clause has already taken place. Therefore, a strict compliance with the letter in contradistinction to the spirit of the Arbitration clause is no longer formally required. My attention has been drawn to an order passed by Justice S.K. Mahajan (Retd.) in OMP No. 29/1989 where a procedure similar to the one presently adopted by me, has been followed. Since the appointment of late Justice N.C. Kochhar had been necessitated because of the failure of the respondent to appoint an Arbitrator, the subsequent power to appoint another Arbitrator because of the occurrence of a vacancy would not inure to the President of the respondent/Appointing Authority under the Arbitration clause.
4. Thirdly, it is well settled that the Court is not bound in any manner whatsoever to exercise powers only under the section invoked by an applicant. Instead it must fulfill the functions expected of the Court by statute. Where a vacancy has arisen, which requires to be filled up under Section 11, a reference to Section 15 is irrelevant. The Court must proceed in consonance with law.
5. Fourthly, it is contended that the entire procedure laid down in Section 11 of the Act must be complied with i.e. the person seeking an appointment through the Court must issue a notice, and the Court must exercise jurisdiction only after the expiry of thirty days. I am unable to accede to the argument of learned counsel for the respondent for the reason that this is not the first appointment under Section 11. There may be instances where the existence of a dispute or the resolute intent of the adversary to refer matters to Arbitration may not be known to the Appointing Authority. As I see it this is the intendment behind the formality of a notice and expiry of thirty days. In the present case the late Arbitrator had adjourned proceedings to 21.09.2004 for final arguments of the respondent/non-applicant. Counsel for the respondent conceded that this hearing did not take place nor did the respondent attend, since the death of the Arbitrator had already come to their knowledge. As in the case of the initial appointment, over two months have expired since the death of the Arbitrator. There was more than sufficient time for the respondent to act, in consonance with its understanding of the Arbitration clause. Instead the petitioner has been forced to initiate legal proceedings because of the dilatory conduct of the respondent. Actions such as these lead to proliferation of litigation and the avoidable jaming of the Boards of the Court. Even for practical reasons, therefore, I find no reason to defer or decline to make an immediate appointment of the Arbitrator.
6. I appoint Chief Justice Anil Dev Singh (Retd.) as the Arbitrator. He shall fix his own remuneration. The petitioner may pay fees of the Arbitrator in the event that the respondent continues not to make its contribution. It will be for the Arbitrator to decide how the costs shall be apportioned. The Arbitral records be made available to Chief Justice Anil Dev Singh (Retd.).
7. The application stands disposed of.