pvr 1 ap449-09 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.449 OF 2009 Mr.Deepak s/o.Shivkumar Bhary. ...Petitioner vs. 1.Heart & Soul Entertainment Ltd and Anr. ...Respondents --- Mr.Vaibhav Sugdare, for Petitioner. Mr.Yasin Mohamed, Director of Respondent present in person. --- CORAM: D.K.DESHMUKH, J. DATED: 29th April,2011 P.C.: 1. By this petition filed under Section 34 of the Arbitration and Conciliation Act,1996, the petitioner challenges the Award passed by the Sole Arbitrator dated 9.3.2009. A short ground on which the validity of the Award is challenged is that the appointment of the Arbitrator was contrary to law. Admittedly, it is the respondent pvr 2 ap449-09 no.1 who has appointed the Arbitrator. The Arbitration clause reads as under:- 16. That in of any dispute or difference arising out of interpretation of this agreement it shall be referred to be Arbitrator in compliance with the Arbitration Act, 1940. It is clear from the arbitration clause that it does not name the arbitrator, it also does not provide for any procedure for appointment of arbitrator. Sub-section (2) of Section 11 of the Act lays down that subject to the provisions of sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. Sub-section (3) of Section 11 of the Act lays down that failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. Sub-section (5) of Section 11 of the Act is relevant for our purpose pvr 3 ap449-09 which reads as under:- (5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. Thus, if there is no agreement between the parties agreeing on a procedure for appointment of an Arbitrator and if the parties to the arbitration agreement do not, by an agreement between them, appoint an Arbitrator then an application has to be made by one of the parties to the Chief Justice for appointment of an Arbitrator. Thus, in a case where there is no procedure agreed upon for appointment of arbitrator, in the absence of an agreement between the parties on appointment of an pvr 4 ap449-09 arbitrator, a party to the arbitration agreement has to suggest name of the Arbitrator and request other party to agree to it, and if the other party does not agree on that person being appointed as arbitrator and there is no agreement, then the only method is that making an application to the Chief Justice. In the present case, perusal of the arbitration clause shows that there is no procedure agreed upon by the parties for appointment of arbitrator. It is nobody s case that the parties by their agreement appointed Respondent no.2 as arbitrator. Therefore, the only method by which Arbitrator could have been appointed is by making an application to the Chief Justice for appointment of Arbitrator. The appointment of Arbitrator by Respondent no.2 is, thus, contrary to law and the Award made by him is non-est and liable to be set aside. 2. The respondent no.1 appeared in person and relied on the judgment of Seven Judges Bench pvr 5 ap449-09 of the Supreme Court in the case M/s.S.B.P. & Co., Vs. M/s.Patel Engineering Ltd. & Anr., dated 26.10.2005 passed in Civil Appeal Nos. 4169/2003, 4170-4173/2003, 4076/04, 3777/03 and other connected matters. He invited my attention to paragraph 46(ix) which lays down that  in a case where an arbitral tribunal has been constituted by the parties without having recourse to Section 11(6) of the Act, the Arbitral tribunal will have the jurisdiction to decide all matters as contemplated by Section 16 of the Act. What is contemplated by the Supreme Court is that Arbitrator be appointed by consent of parties without making application to the Chief Justice. In the present case, the appointment of arbitrator is not by any agreement between the parties. 3. My attention was also invited to the observations of the Supreme Court in paragraph 18. Those observation come into play in a case where the Arbitrator is appointed in accordance pvr 6 ap449-09 with law. In the present case, the Arbitrator has been appointed totally disregarding the arbitration clause and law. In the result, therefore, the petition succeeds and is allowed. The Award is, therefore, set aside. Respondent no.1 is directed to pay cost of this petition to the petitioner. The cost is quantified at Rs. 25,000/-. (D.K.DESHMUKH,J.)