JUDGMENT
Mukul Mudgal, J.
1. In this petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) time was given to file reply on 26.8.2004 but no reply has been filed. Accordingly the matter be taken up for disposal.
2. The relevant arbitration clause 14 in the contract between the parties reads as follows:
“Any dispute or difference between parties hereto or anyone claiming through or under them, at any time hereafter, in respect of construction or interpretation of any term or provision thereof and or other wise arising out of, relating to, concerning or touching this Agreement, the same shall be referred to Arbitration of two persons, one to be appointed by JKSPDC and the other to be appointed by KJMC and the provisions of the Arbitration Act, 1940, as amended, shall apply to such arbitration. The Arbitrators will have summary powers. The venue of arbitration shall be New Delhi.”
3. It is not in dispute that upon disputes enumerated in this petition having arisen between the parties, the demand for appointment of an arbitrator under the aforesaid clause was made as per the contract dated 28.10.99. It was not in dispute that on 30.4.2004 notice was sent to appoint an arbitrator. As per the aforesaid agreement and the requisition dated 30th April, 2004 neither the arbitrator was appointed nor was any reply filed as noted above.
4. The position of law in respect of the delayed response to a request for appointment of an arbitrator is to be found in the judgment of the Supreme Court in Datar Switchgears Ltd. v. Tata Finance Ltd. & Another reported as JT 2000 (Suppl.2) SC 226 wherein the relevant para 19 reads as follows:-
“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 opposite 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.”
5. A learned Single Judge of this Court in B.W.L. Ltd. v. M.T.N.L. 2000 IV AD (DELHI) 165 crystallized the position of law in relation to the delayed response to the request for appointment of an arbitrator as under:-
“It has now become common place for persons who have retained this power of appointment of an Arbitrator, not to act at all or to act with such obduracy as to render an Arbitration clause totally meaningless. The vehemence with which the present petition was opposed, often caused me to forget that it was only the appointment of an Arbitrator to adjudicate upon the claims raised by both parties and not the disposal of objections, that was in debate. After hearing lengthy arguments it would be an abdication of judicial duty if the Respondents were still permitted to make an appointment of the Arbitrator. The State is expected to act without arbitrariness and with fairness and in furtherance of the well-being of its citizens. It is also expected to know the law, especially as laid down by the Supreme Court. It cannot be excused if its action tantamount to emasculating the laws-i.e. of expeditious disposal of disputes through arbitration.”
6. This position of the law laid down by this Court and the Hon’ble Supreme Court as extracted above is categorical. Therefore once the party moves the Court under Section 11(6) of the Act, the right of the opposite party to appoint an arbitrator as per the arbitration agreement ceases. The above position of law squarely applies to the present case. The respondent’s right to appoint an arbitrator was extinguished on 13th July, 2004, the date when the petitioner moved this Court under Section 11(6) of the Act.
6. Even though the original agreement provided for appointment of one arbitrator each by the parties and since the appointment is being made by this Court, the counsel for the petitioner has prayed that a sole arbitrator be appointed. There is merit in this plea particularly since the petitioner in the Section 11 petition is making it. Accordingly, Mr. Justice A.B. Saharya, former Chief Justice of Punjab & Haryana High Court, A-22, Niti Bagh, New Delhi-110049(Tel.26525334, 26517968, Mob.9811743599) is appointed as the Sole Arbitrator. The parties to appear before the Arbitrator on 8th December, 2004 at 4.00 PM or any other date mutually found convenient with the statement of claims/counter- claims. Both the counsel agree that they shall request the Arbitrator to dispose of the reference not later than six months from the first date of hearing. It is accordingly so ordered.
7. The petition stands allowed and disposed of accordingly.