PNP 1 ARBAPL1294-9.12 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. ARBITRATION APPLICATION (LODG.) NO.1294 OF 2010 M/s.Siddharth Infra Projects Private Limited ..Applicant. Vs. M/s Eta Star Infrastructure Ltd. ..Respondent. .... Mr. Simil Purohit with Mr. Bharat Vaishnawa i/b Bharat Vaishnawa & Co. for the Applicant. Mr. Vivek Kantawala with Mr. Gaurang Kamth, Mr. Rahul Kumar and Ms. Sneha Nanandkar i/b Vivek Kantawala & Co. for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD, J. 9 December 2010. P.C. : 1. The arbitration agreement is in a contract between the Applicant and the First Respondent dated 26 February 2009. Clause 67.3 provides for arbitration by an arbitral tribunal consisting of three arbitrators one each to be appointed by the parties. In the event that one of the parties fails to appoint its arbitrator within thirty days of the receipt of a notice from the other party, then the appointing authority specified in the appendix to the bid document is to appoint an arbitrator. The appointing authority is the Governing Council / President of Indian Road Congress. The Applicant invoked arbitration by a letter dated 10 September 2010 and nominated Dr. Kirty Dave as an arbitrator. The First Respondent responded by its letter dated 15 October 2010 and stated that the letter of invocation had been PNP 2 ARBAPL1294-9.12 received on 20 September 2010. The First Respondent nominated Mrs. Justice Manju Goyal, Former Judge of the Delhi High Court as arbitrator. The Applicant by its letters dated 13 October 2010 and 18 October 2010 moved the Indian Road Congress for nominating an arbitrator on behalf of the First Respondent on the ground that the First Respondent had failed to nominate an arbitrator within thirty days. Having failed to evince a response, the applicant instituted these proceedings. 2. Having perused the record before the Court it is evident that the case of the First Respondent all along has been that the letter of invocation of the Applicant was received by the First Respondent on 20 September 2010 and that consequently the appointment which was made on 15 October 2010 was within the contractual period of thirty days. The learned counsel for the Applicant is not in a position before this Court to demonstrate that the letter of invocation dated 10 September 2010 was served on the First Respondent on any anterior date prior to 20 September 2010 as set out in the First Respondent s letter dated 15 October 2010. Hence, ’ there is no reason for this Court to disbelieve the statement contained in the First Respondent s letter dated 15 October 2010 that the letter ’ of invocation was received on 20 September 2010. The First Respondent nominated its arbitrator within a period of thirty days thereafter as stipulated in Clause 67.3 of the agreement. The arbitral tribunal has thus been validly constituted PNP 3 ARBAPL1294-9.12 and there is therefore no occasion for this Court to appoint or nominate an arbitrator on behalf of the First Respondent. In that view of the matter, there is no merit in the Arbitration Application which is accordingly dismissed. (Dr. D.Y.Chandrachud, J.)