1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO. 112 OF 2007 Arora Associates ... Applicant Vs Union of India ... Respondents Mr. Devvrat Dhankar Singh i/b Sudheer S. Phadke for the Applicant. Mr. T.I. Pandian for the Respondents. CORAM : S.J. VAZIFDAR, J. DATED : 15TH JULY, 2010. P.C. : 1. This is an application under section 11 of the Arbitration and Conciliation Act, 1996, for appointment of an Arbitrator. 2. There is no dispute that the parties had entered into an agreement, which contains an agreement clause. In fact, the disputes and differences between the parties had already been referred to arbitration. The arbitral tribunal consisted of three learned Arbitrators. 2 An application under section 12 was filed before the arbitral tribunal on the allegation that one of the learned Arbitrator was biased. Before that application was decided, the arbitral tribunal passed an award. The Applicant challenged the award under section 34. The award was set aside. 3. In view of the judgment of the Supreme Court in Mc. Dermott International Inc. vs. Burn Standard Co. Ltd. & ors. JT 2006 (II) SC 376, para. 55 and the judgment of this court dated 12th July, 2010 in Arbitration Application No. 193 of 2006, the Applicant is entitled to begin the arbitration again. 4. Even assuming that the Respondent has forfeited its right to constitute the arbitral tribunal in accordance with the arbitration clause, I do not intend exercising my discretion of appointing an Arbitrator, independent of the said clause. The Applicant’s grievance was only against one of the Arbitrators in a tribunal consisting of three learned Arbitrators. That Arbitrator has now retired. There is no warrant for presuming that the Respondent intends appointing a biased Arbitrator. There is nothing to warrant an inference of mala 3 fides against the other Arbitrators. 5. In the circumstances, the Application is allowed. However the reference shall be in accordance with clause 54 of the General Conditions of Contract. Parties shall proceed accordingly, including that the General Manager, Central Railways shall appoint the arbitral tribunal in accordance with the agreement within eight weeks from today. The Arbitration Application, accordingly, stands disposed of.