Arbitration Case No. 270 of 2006 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Arbitration Case No. 270 of 2006 Date of Decision: 8.1.2010 Punjab Agro Industries Corporation Ltd. ..Petitioner Versus Rajan Mittal & Associates & others ..Respondents CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. N.S.Boparai, Advocate, for the petitioner. None for the respondents. ***** MUKUL MUDGAL, C.J. (Oral) Inspite of publication, no one has put in appearance on behalf of the respondents. Accordingly, they are proceeded against exparte. This petition has been filed by the petitioner under Section 11(4)(b) of the Arbitration & Conciliation Act, 1996 (for short ' the Act), for appointment of sole Arbitrator to adjudicate the disputes between the parties. Clause 36 of the agreement relates to Arbitration of disputes between the parties which reads as under:- Arbitration Case No. 270 of 2006 [2] “All differences and disputes between the parties hereto on any clause or matter herein contained or their respective rights, claims or liabilities hereunder or otherwise, howsoever, in relation to or arising out of this agreement shall be referred to arbitration by two Arbitrators (one to be appointed by each party) who shall, before proceeding with the reference, appoint an Umpire and such arbitration shall be governed by the Indian Arbitration Act, 1940 or any modification or re-enactment thereof for the time being in force.” This is second round of litigation. In the first round, the petitioner had filed a petition in this Court seeking a direction to the respondents to appoint their Arbitrator in view of the provisions of Clause 36 of the agreement. Upon notice, the respondents put in appearance and in reply stated that they have named Shri Sandip Kumar Rishi, Company Secretary, as their Arbitrator. This Court disposed of the petition on 17.2.2006 by passing the following order:- “In this petition filed lunder Section 11(6) of the Arbitration & Conciliation Act, 1996, the petitioner had already named Shri Sandeep Khanna, AGM PAIC, as its Arbitrator. In reply to the petition, the respondent has now named Shri Sandip Kumar Rishi, Company Secretary, as its Arbitrator. Learned counsel for the parties are agreed that both the above named Arbitrators may be appointed as the Arbitrators. It is ordered accordingly. The said two Arbitrators shall appoint the third Arbitrator who shall act as the Presiding Arbitrator. The petition stands disposed of in the above terms.” Arbitration Case No. 270 of 2006 [3] In this petition having been filed in 2nd round of litigation, it is averred that order dated 17.2.2006 with regard to appointment of 3rd Arbitrator who has to act as a Presiding Arbitrator, has not been complied with. It is averred in the petition that the respondents are not cooperating but frustrating the appointment of Presiding Officer as directed by this Court. During the course of arguments, learned counsel for the petitioner urged that in view of the track record of the respondents, who are deliberately delaying the proceedings, it would be appropriate if by invoking the provisions of Sections 11(6) and 11(7) of the Act, sole Arbitrator in place of a Tribunal is appointed to adjudicate upon the disputes between the parties. I have heard learned counsel for the petitioner and gone through the provisions of Sections 11(6) and 11(7) of the Act which read as follow:- “ 6. Where, under an appointment procedure agreed upon by the parties,- a) a party fails to act as required under that procedure; or b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request that Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. 7. A decision on a matter entrusted by sub Arbitration Case No. 270 of 2006 [4] Section (4) or sub Section (5) or sub Section (6) to the Chief Justice or the person or institution designated by him is final.” Considering the fact that this Court on 17.2.2006 upon agreement between learned counsel for the parties had directed that the named Arbitrators would appoint third Arbitrator who would act as a Presiding Arbitrator, the respondents have not come forward for appointment of the third Arbitrator. It clearly shows that they are not overeager to proceed with the Arbitration and till date have not permitted the appointment of third Arbitrator who had to act as a Presiding Arbitrator. This fact also stands proved from the conduct of the respondents who have not chosen to even come forward to defend these proceedings. Accordingly, I am of the view that instead of three Arbitrators, a sole Arbitrator in pursuance of the provisions contained in Sections 11(6) and 11(7) of the Act, would sub-serve the compliance of Clause 26 of the agreement to adjudicate upon the disputes. Accordingly, I allow this petition and appoint Justice R.K.Nehru, a former Judge of this Court, as sole Arbitrator to adjudicate upon the disputes between the parties. The parties shall appear before the appointed Arbitrator on 06.03.2010 at 10.00 A.M. The Arbitrator shall make endaveour to dispose of the reference not later than six months from the date of first hearing. The Arbitrator shall fix his own fee. (MUKUL MUDGAL) 08.01.2010 CHIEF JUSTICE 'ravinder'