1 APP10/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION ARBITRATION PETITION NO.10 OF 2011 WITH ARBITRATION PETITION NO.11 OF 2011 M/s Nikita Builders and Developers ...Petitioners v/s Mr Ali Akbar Jafari ...Respondent Mr S.G. Aney, Sr. Counsel i/b Mr Ranbir Shekhawat for Petitioners. Mr A.Y. Sakhare, Sr. Counsel i/b Mr Tejas Dande for Respondent. CORAM : D.K. DESHMUKH J. DATE : 18TH MARCH 2011. 2 APP10/11 P.C. :- 1] Both these petitions are filed by the same party relying on the same arbitration clause and circumstances. Therefore, both the petitions can be conveniently disposed off by a common order. 2] The arbitration clause relied on is clause 34 of the contract between the parties. It reads as under :- 34.ARBITRATION All disputes and differences whatsoever arising out of or touching these presents or the construction or application thereof or any clause or thing herein contained including the performance of the respective obligations of each of the parties hereto during the subsistence of this Agreement, shall be referred by the Parties hereto to the Arbitration of Advocate Chandan Parwani and Mr Kailash Valecha in accordance with 3 APP10/11 the provisions of the Arbitration and Conciliation Act 1996 who shall amongst themselves appoint an Umpire and any decision of the said Arbitrators made on the point of reference to him shall be final and binding on the parties hereto. It is common ground before me that the two names of Arbitrators Advocate Chandan Parwani and Mr Kailash Valecha have refused to act as Arbitrators. Therefore, the present petitions have been filed. 3] Perusal of section 15 of the Arbitration and Conciliation Act 1996 shows that where named Arbitrator withdraws from Office for any reason, a substitute Arbitrator can be appointed according to the Rules that were applicable to the appointment of original Arbitrator, but under clause 34 quoted above, there appears to be no provision made for appointment of Arbitrators because clause 34 by itself makes appointment of Arbitrators. The present petitions have been preferred admittedly 4 APP10/11 after following the procedure contemplated by sub- section (6) of section 11 of the said Act. Perusal of sub-section (6) of section 11 of the said Act shows that the provisions of that section apply where there is a procedure agreed upon between the parties for appointment of Arbitrator. In the present case, it is obvious from clause 34 that there is no procedure agreed upon between the parties for appointment of Arbitrator. In my opinion, therefore, sub-section (6) of section 11 will not apply. The provision which may apply is sub-section (3) of section 11. Therefore, in case the petitioners want to move for appointment of Arbitrator, in place of Arbitrators who were named in clause 34, they will have to follow the procedure contemplated by sub-sections (3) and (4) of section 11. That procedure has admittedly not been followed by the petitioners. Therefore, it appears, that the present petitions are premature. The petitions are therefor4e disposed off with liberty to the petitioners to adopt such procedure as may be found to be in accordance with law. It is made clear that 5 APP10/11 I have not dealt with any of the contentions raised by the parties for disposing of these petitions. Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH )