JUDGMENT
Mukul Mudgal, J.
1. This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’), for appointment of an Arbitrator. Reply has not been filed. It is not in dispute that the request for appointment was made on 16th April, 2004. The Arbitrator was not appointed and in the meanwhile this Court was moved on 6th July, 2004 when notice was issued. 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.”
2. 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.”
3. 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 stood extinguished on 6th July, 2004, the date when the petitioner approached this Court under Section 11(6) of the Act.
4. Accordingly, the petition is allowed and Mr. Manmohan, Senior Advocate, Flat No. 7, Golf Apartments Sujan Singh Park, New Delhi is appointed as an Arbitrator to adjudicate upon the disputes between the parties sought to be raised in this petition. The Arbitrator to fix his fees in consultation with the parties. Both the counsel agree that the arbitrator be directed to deliver the award within six months. The Arbitrator to give his award, not later than 6 months from the date of entering upon reference. Parties to appear before the arbitrator on 3rd December, 2004 at 4.30 pm along with statement of claims/counter-claims.
5. This petition stands allowed and disposed of accordingly in the above terms.
IA No. 4013/2004 (Under Section 9 of the Act)
Reply be filed within four weeks from today. Rejoinder, if any, be filed within four weeks thereafter.
List the matter on 28th January, 2005.