Arbp128.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 128 OF 2010 Khorshed Eddie Naragwalla ...Petitioner. Vs. Daryus Soley Panthakey ...Respondent. Mr. Dipen Merchant, Sr. Counsel i/by M/.s. Bilawala & Co. for the Petitioner. Mr. Ravi Kadam, Sr. Counsel with Mr. Sanjay Jain with Mr. Mehul Shah i/by Bhavesh Parmar for the Respondent. CORAM :- ANOOP V. MOHTA, J. DATED :- 8TH MARCH, 2010. P.C.- Heard finally. 1 The Petitioner has invoked Section 9 of the Arbitration and Conciliation Act, 1996 (for short the Arbitration Act), and prayed for various interim reliefs, basically on the foundation that though there was no Arbitration agreement between the parties, but in view of the dispute so raised in a suit, the Court by consent, had appointed an Arbitrator and accordingly the parties proceeded before the learned Arbitrator. 2 In the minutes of the order in the suit, at the time of appointment of the Arbitrator, it is observed as under:- “1. By consent, the dispute in the suit between the Plaintiff and Defendant is referred to the Arbitration of the Sole Arbitrator Shri A.B. Palkar (Retired Judge Bombay High Court). Arbp128.10 2 2. Parties shall file all pleadings before the Sole Arbitrator. 3. The order of status quo shall be maintained in respect of the subject property viz. Najoo Villa, standing in Plot No.643 at Parsi Colony, Dadar, Mumbai, as per the Appellate Order dated 6th July, 2004 passed in Appeal No.401 of 2004 and shall continue until final disposal/ termination of the arbitration proceedings and for a period of 8 weeks thereafter.” 3 However, for the reasons recorded in the Petition and as the Respondent is not willing to continue with the arbitration, after the death of the named Arbitrator, the Petitioner has filed Section 9 Petition for interim protection and/or to continue the protection already, granted as recorded above. 4 The learned Senior Counsel appearing for the Respondent submitted that basically as there was no arbitration agreement between the parties and the Court had appointed the Arbitrator, but now in view of the death of the Arbitrator, the Arbitration proceedings terminated automatically. Therefore, Section 9 Petition as filed, is not maintainable for want of any Arbitration clause/proceedings itself. 5 On 21st May, 2008 the Arbitrator expired. In view of this, as per Section 14(1) of the Arbitration Act, the mandate of the Arbitrator terminated automatically. 6 The next Section is 15 for the substitution of arbitrator. As one party is unwilling to appoint new arbitrator. There was no rule or arbitration Arbp128.10 3 clause between the parties. The mandate of Section 15 therefore, cannot be extended in this case by substitution of any other arbitrator by the Court without consent. This is not the Petition under Section 11 of the Act. The basic terms of appointment of the arbitrator is relevant factor. In absence of any arbitration clause the parties consented to appoint named arbitrator. The arbitrator is dead, resulted into automatic termination of the arbitration proceeding. The term “rules” in Section 15(2) covers the above terms of the appointment of the arbitrator. Sections 14(1) and 15(1), (2) of the Arbitration Act, are reproduced as under:- “14 (1)- The mandate of an arbitrator shall terminate if- (a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and (b) he withdraws from his office or the parties agree to the termination of his mandate.” “15. Termination of mandate and substitution of arbitrator.- (1) In addition to the circumstances referred to in Section 13 or section 14, the mandate of an arbitrator shall terminate- (a) where he withdraws from office for any reason; or (b) by or pursuant to agreement of the parties. (2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the Arbp128.10 4 arbitrator being replaced.” EMPHASIS ADDED 7 The statement is also made, on instructions, that they are not willing to proceed before any other Arbitrator. Therefore, there is no consent with regard to the continuation of the Arbitration proceedings though it was earlier agreed. In view of this and as there is no Arbitration clause between the parties, the Court therefore, has no power to compel the parties to appoint any other Arbitrator. One party is willing to proceed before any other Arbitrator, itself is not sufficient. The consent/ agreement for such appointment is a must. 8 The learned Senior counsel appearing for the Petitioner, submits that the parties cannot be remediless. For whatsoever may be the reason, by the Court’s order the Arbitrator was appointed in the suit and as the suit was converted into the Arbitration Proceedings. Now, one party is not willing, then the suit as filed need to be revived/restored in the interest of justice. 9 In view of above, considering the aspect that the parties cannot be remediless, though the Present petition under Section 9 is, dismissed, Yet, the liberty is granted to the petitioner to take appropriate steps and/or proceedings in accordance with law for restoration of the suit. All the points are kept open. No costs. (ANOOP V. MOHTA, J.)