Shri B.S. Sangwan vs Union Of India (Uoi) And Anr.
2004 Latest Caselaw 1050 Del

JUDGMENT

Mukul Mudgal, J.

1. This is an application under Sections 11 of the Arbitration and Conciliation Act, 1996 seeking the appointment of Arbitrator.

2. It has been averred by the petitioner that as per the arbitration clause of the agreement between the parties, the arbitration was invoked by the petitioner vide letter dated 22nd January, 2004 as stated in paragraph 7(n) of the petition. The letter dated 22nd January, 2004 bears out the averment.

3. There is no effective denial of the said averment in the reply furnished to the learned counsel for the petitioner though not filed in Court. There is no denial of the existence of the arbitration clause though objection on merits has been raised. Accordingly, the petitioner is entitled to succeed in view of the following position of law laid down 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."

4. Accordingly, Mr. Harish Chandra, Ex-Member, U.P.S.C., B-761, Sushant Lok-I, Gurgaon (Mobile No. 98100338457, 95124-2385566) is appointed as Arbitrator. The parties to appear before the Arbitrator so appointed, on 8th November, 2004 at 4 PM on which day the statement of claim will be filed by the claimant. The Arbitrator is directed to dispose of the reference not later than 6 months from the first date of hearing of the reference. The Arbitrator shall fix his fee after consulting the parties.

5. The petition stands disposed of accordingly.