JUDGMENT
Mukul Mudgal, J.
1. This is a petition under Section 11(6)(c) of the Arbitration and Conciliation Act, 1996(hereinafter referred to as the `Act’) filed by Prasar Bharati for appointment of an independent arbitrator.
2.This petition again raises the questions which repeatedly arise during proceedings for the appointment of an independent arbitrator under Section 11(6)(c) of the Act. The petitioner had entered into an Accredition Agreement dated 31st May, 1995 with the respondent by which the respondent was required to make payment of advertisement and other related bills jointly and severally with advertisers. Clause 5 of the agreement between the parties providing for settlement of disputes by way of arbitration eads as follows:-
”5. In the event of any question, dispute or difference arising under these presents or in connection therewith except as to any matters the decision of which is specially provided for by these presents, the same shall be referred to the sole arbitration of an Officer appointed to be the arbitrator by the Director General, Doordarshan. It will be no objection that the arbitrator is a Government Servant, he has expressed views on all or any of the matters in dispute or difference. The award of the arbitrator shall be final and binding on the parties to these presents.
In the event of the arbitrator dying, neglecting or refusing to act or resigning or being unable to act for any reason, it shall be lawful for the Director General, Doordarshan to appoint another arbitrator in place of the outgoing arbitrator in the manner aforesaid.
The arbitrator may, from time to time, with the consent of the parties to these presents enlarge time for making and publishing the award.
Upon every and any such reference, the assessment of the costs of an incidental to the references and the award respectively shall be in the discretion of the arbitrator. Subject as aforesaid, the Arbitration Act, 1940 and the rules there under and any statutory modification thereof for the time being in force shall be deemed to apply to the arbitration proceedings under this clause.”
3.That admittedly upon disputes arising between the parties and in accordance with the above clause, the petitioner had called upon the Director General, Doordarshan and the respondent to appoint an arbitrator by addressing a communication to the Director General as provided in the aforesaid Clause on 6th March, 2003 by a letter admittedly received by the Office of the D.G., Doordarshan as well as the respondent. It is also not in dispute that as per the arbitration clause between the parties, Shri Rakesh Sehgal, Deputy Director General was appointed as the Arbitrator vide letter dated 1st September, 2003 to adjudicate upon the disputes between the parties. However on 24th November, 2003, Shri Sehgal declined to continue as arbitrator. It is stated that the arbitrator vacancy has not been filled up as all the officers have withdrawn in view of lack of time. Consequently the petitioner has moved this petition under Section 11(6)(c) of the Act for appointment of the arbitration as per the arbitration agreement as the Director General, Doordarshan has waived his right to appoint the arbitrator and accordingly the petitioners counsel prays that the Court may appoint an independent arbitrator. In reply to the arbitration petition, Mr. R.K. Dha an appears on behalf of the respondents and has contended that the petition is barred by time and it is the petitioner who has abandoned the arbitration proceedings and thus the present petition under Section 11(6)(c) of the Act is barred by limitation. The position of law in respect of these issues was summed up by this Court in para 5 of Prasar Bharati v. Stracon (India) Limited reported as 2004 VII AD (DELHI) 513 which reads as follows:-
”The principles of law which therefore govern the appointment/constitution of an arbitrator/arbitral tribunal under Section 11 of the Act which emerge from the aforesaid judgments of the Supreme Court are as follows:-
(a) an order under Section 11(6) nominating an arbitrator is not an adjudicatory one [Konkan Rly’s case(supra)]
(b) No judicial functions can be discharged under Section 11 and not even a dispute regarding the validity or existence of an arbitration agreement can be gone into in the exercise of administrative power under Section 11[Hythro Power Corprn’s case(supra)]
(c) Even if an infirmity in the arbitration clause goes to determine the legality, validity and propriety of the constitution of the arbitral tribunal, it has to be exercised by the arbitral tribunal and under Section 11 the High Court cannot undertake he highly judicial determination of highly contentious issues. The legislative intent underlying the 1996 Act was to minimize and limit the supervisory role of Courts and to ensure that all contentious issues were raised before the arbitral tribunal[FCIs case (supra)]
(d) Any objection to the applicability of the arbitration clause will have to be raised before the arbitral tribunal[Hindustan Petroleum’s case(supra)]
(e) There is hardly any area of dispute which cannot be decided in arbitration by the arbitrator appointed under Section 11[State of Orissa’s case(supra)]
Thus it is clear that adjudicatory functions or the pleas as of limitation or laches or abandonment are pleas which have to be considered by an arbitrator to be appointed in the matter. It will be open to the respondent to raise pleas sought to be raised in the reply before the arbitrator.
4. In this view of the matter and the provision of Clause 5 providing for arbitration and in view of the well settled position of law as extracted above in the present case, Mr. Justice … a retired Judge of this … is appointed as the Arbitrator to adjudicate the disputes between the parties. Statements of claims/counter-claims shall be filed by either party on or before the next date, fixed before the arbitrator. The arbitrator to fix his fees in consultat on with the counsel for the parties. Parties to appear before the arbitrator on 20th January, 2005 at 4.30 PM. Both the counsel agree that the arbitrator be directed to dispose of the reference expeditiously and not later than six months from the firs date of the hearing. Accordingly, the learned arbitrator is requested to dispose of the reference not later than 6 months from the date of the first hearing of the reference. It is open to the respondent to raise the pleas sought to be raised in the reply before the arbitrator.
5. The petition stands allowed and disposed of accordingly.