:.l, HIGH COURT OF CHHATTISuAKH AT BIL^PUR M.C-.C. No. 194/2006 Rainesh Kiunar Jam APPUCAn'T Versus RESPONDBN'T M/s. Bharat Aluiauuuin Coinpaay Ltd. Order post for \fe-4-2007 Sd/- Dhirendra Mishra Judge HIGH COURT OP CHHATTISGARHAT BILASPI7R M.C-.C. No. 194/2006 APPLICANT Ramesh Kuinar Jaia, aaed about 50 ycars, son ofLatc Shri Hiralsl iJaiu., R/o. Pulgaon Naka, Dui^, cartyiug on business ia the iaanie fe styfc of "R.K. ] T'rausport Conipauy" as Sote Proprietor 1 'V<M?<Cas RBSPONDBNT M/s. Bharat Alumituiuii C-ompany Ltd, A Coiiipaiiy, through its President, Alunutuum Bbawaa, Korba, Distfc Korba (C.G.) Ftesenfc Shri Anaad Tivyari, Advocate for the appUcant. Shri Abhisek SirLb-a., Advoca.te for the non-applicant. ORDE R Per Dhirendra Mishra, J. Mearcl. The applicaut has preferred this appUcation uiider Section 11(6) of the Arbitaadon aad Conciliation Act, 1996 (&r short hereinafter referred to as "the Act'') for appouitiaent ofarbitrator. 2. Case of Uie applicaat is that me nou-applicant is owner of fhe Bauxite miaes whereas the appBcaat is a proprietor of the trausport coinpany. lu ftie year 2002, parties entered iuto an agreeinent whereby the appUcant had undertaken to mine 2 lakh tones of Bauxite ia Menpat iniaes and trausport the saine to fhe non-applicant's plant at Korba vide Annexure A-l. T'he work coiniaenced from. 1st April, 2002 and extended period of the contract ended on 30-6-2005 and fhe contract belween the parties stood determined with efifect froni 30th June, 2005. 3. Clause 33 of t&e agreeinent of Annexure A-l provides for adjudication of the disputes through arbita'ation. 4. 'l'he applicaat vide his commuiucation dated 22nd August, 2005 of Auaexure A-2 raised various clauas ansing out of the coatra.ct agreeiuent before the non-applicant. He lequested for appoiatinent of Arbitrator as per Clause 33 of the agTeeinent. in respon.se to ttie above conuiiiinication, the non-appUcant vide their. ,.-<> repty dated 20tn September, 2005 of Annexure A-3 rejected the claims offhe applicarit on the ground that there is no provision for such claun in the ^reeinent aad also refused to appoiut arbitrator in terms of fhe provisions of fhe contract and fhe applicant was caued upou for discussion aad setuement. Siace the contract agreeinent contains arbitration clause No. 33 for the purposes of adjudication of the dispute by fhe Arbitrator and as per the above clause, ia the event of auy dispute or difference of any nature whatsoever arising out of or in relatioa to fhis agreement was required to be referred to the Sole Arbitration of the Arbitrator nominated by President/Man^iug Director of the coinpauy and since fhe non-applicaut has failed to appoiat arbitrator even after the appUcaut raised the claim aad requested for apponitaient of arbitrator, in fhe aforesaid circuinstaaces, it is subnutted ttiat a case for appointment of arbitrator is inade out 5. lt was further brought to fhe notice of fhis Court by the appUcant vide their application dated 15-11-2006 that during me pendeucy of this petition, the appUcaut received a letter dated 12-9-2006 of Annexure A-4 whereby the non-applicaiit iuvokuig fhe provisions of CIause 33 of the Contract ^reenient has appointed arbitrator subject to the consent ofthe arbitrator. 6. Non-applicant has not filed reply. However Shri Abhisek Suiha, Advocate appearmg for the non-applicaat has drawn attention of this Court fhat commuiucation of Aimexure A-2 dated 22na August, 2005 nowhere mentions that the non-appUcaut was requested to appoiut sole arbitrator imder fhe provisions of the agreeinent for adjudication of fhe dispute raised by fhe applicant as alleged ia fhe application. He further subinits mat froiu bare perusal of the application and documents annexed along wiui fhe application, it is luaaifesfly clear that the appUcant has not inade any request to the non-appUcaut for appoiatment ofArbitrator aad therefore, present appUcation is premature and the saoie deserves to be disiaissed. 7. In reply to fhe above contention, Shri Anand Tiwari, Actvocate appearing tbr fhe applicaat submitted that though ia the coiiunuriication of Aiuiexure A-2, the applicaat has not inade aay .-^ speci&c request for appoiatinent of Arbitrator aad to refer the dispute to the arbitrator so appoiated, nevertheless, the repty of Amiexure A-3 ofthe non-appUcant clearJty icveals tfaat soiae ofthe clauns raised by the appUcaat have been rejected as they do not arise out of ttie terms aad conditions ot Qie mming and ta-aasportation agreeinenf entered into between fhe parties and for the rest ofthe clauns, the appUcaat Iias been requested to depute his authorized representative for discussion aad settlem.ent and oiily after discussion, if the dispute to such claim stiU subsists, the aon-appUcaat may consider appointineat ofarbitrator m. terms of Clause 33 of the Agreenient. Lookuig to the conduct of fhe non- applicant in appouitmg fhe arbitrator durmg pendency of this application. which is Ulegal as the non-appUcant had forfeited his right to appoint arbiuator as the application was filed by ftie applicant before this Court, it would be expedient to appoint arbita-ator as per Clause 33 ofthe agreeinent. 8. I have heard learued counsel for the pardes. I have perused the arbitration agreement of Annexure A-1 as also document of Annexure A-2 aad reply to the above document Aniiexure A-3. 9. Appouitment of Arbitrator under fhe Act is govemed by Sectioa 11 of the Act. Relevaat portion of Section 11 is reproduced:- "ll. Appolntmeat of arbtoators.- (1) A person of any nationatrty may be aa arbitrator, uiiless ofherwise ayeea. by parties. (2) Subject to sub-section (6), fhe parties are free to agree on .a procedure for appointing the arliitrator or arbitrators. (3) F'ailuig any ^reeinent referred to ia sub-section (2), ia aa arbitration wifh three arbitrators, each party shail appoint one arbitrator, scnd the two appointed arbitrators shaU appoint ftie tturd arbitrator who shall act as the presiding arDitrator. (4) lf t&e appoiatiaent procedure iu sub-section (3) applies aaa - •^. (a) a party faits to appoiat an arbtoator wifhia t'nirty days finin fhe receipt of a request to do so froin ffae other party; or (b) the two appoiated arbitrators fail to agree on the third arbitrator wifhin fhiriy days finin the date of Uieir appoiatmeiit, fhe appointment shau be niade, upon request of a party, by fhe Chiefdustice or any person or institution des^nated by mm. . (5) FaUing aay agreenient referred to ni sub-section (2), in an arbitration with a sole aTbitTator, if.the parties fau to agree on the arbitrator wifhin. tturty days froin receipt of a request by one party frpio. fhe other party to so agice fhe appointment shau be inade, upon request of a party, by the ChiefJustice or auv person or uistitution designated by him. (6) Where, uiider an appoiattaent proceduic agreed upon by me parties, - (a) a party fails to act as reqiured under that procedure; or fD) the parties, or the two appoiuted arbitrators, fail to reach aa agreeinent expected of theni under that procecture; or (c) a person, iucludiag an iastitution, tails to perfonn auy function entrusted to 'nim or it under that procedure, a party inay request the Chief Justice or any person or tnstitution designated by Ttim to take the necessary ineasure, unless the agreeinent on the appouitmeiit procedure provides ofher ineaus for securing fhe appoiatment. XXX XXX XXX XXX XXX XXX AAA XXX XXX" ^0 10. Froin perusal of the above provision, it is niaiufestty clear that a party to an arbitTatioii ^reeinent before iavokiag Section 1 1 by approaching tfae Court for appointmentofarbitrator, is lequired to niake a request to uie otherside for appointinent of arbitrator or to agree on fhe arbitrator and if the other party fails to appoint or agree on the arbitrator within 30 days froia the receipt of the request, by one party fi-oai ofh.er party, appoiatinent inay be raade by the ChiefJustice or aay person or institutiou desiguated by him upon request ot a party, 11. In the iastant case, the applicaitt has approached this Court under Section 11(6) of fhe Act without inakiag a request to ftie non-appUcaat to appomt arbitrator as per Clause 33 of the agreement which is evident from readiitg of the document of Annexure A-2 dated 22ndAugust, 2005. Aryiment of the learaed counsel for the appUcant that siace the claun of the applicaut has been rejected vide reply ofAruiexure A-3 aad further that the uon- appUcant has itself appoiuted arbiteatorfor adjudication of the dispute under Clause 33 ofthe agreeinent, is concemed, the above conduct of the non-appUcant cattaot dispense with legal requireinent of niaking request by one party to fhe another party for appoiutnient of arbitrator ia tenns of the contract agreeiaent. Therefore, I ain of the considered opinion that the present application is preiaature as the appUcaat has no cause of action for filing fhis application fcr appoiataient of arbrtrator. 12. In the result, the appUcation is dismissed. However there shaU be no order as to costs. Sd/- Dhirendra Mishra Judge