\ 4c- Y* IN TI-IE HIGH COURT OF DELHI AT NEW DELI.II + ARB.P. 252/20L7 & rA.l2469l20rL R K SWAMY BBDO PVT LTD Through: Mr.l.C. Kumar, VCTSUS BHARAT SANCHAR NIGAM LTD ..... Petitioner Advocate ,b\ ..... Respondent Through: Mr.Ajit Singh Bawa and Mr.Arjun Singh Bawa, Advocates CORAM: HON'BLE MR. JUSTICE G.S.S|STANt ORDER 29.LL.?OLL This is a petition under Section 11 of the Arbitration & Conciliation Act, seeking appointment of an independent arbitrator, as the respondent has lost its right to appoint an arbitrator, in view of the fact that despite notice dated 16.03.20II no arbitrator was appointed. Counsel for the respondent has opposed this petition on the ground that an arbitrator has since been appointed on 18.08.201-I. While relying on clause 19.1 of the Agreement dated 25.08.2006, counsel for the respondent submits that right to appoint an arbitrator vests with the respondent and the petitioner has agreed to abide by the terms of the agreement dated 25.08.2006. 3. On the other hand counsel for the petitioner has submitted that despite notice dated 16.03.2011 arbitrator was not appointed by the o/o 1. 2. l.. Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified ,r' respondent. ln support of his submission, counsel for the petitioner has placed reliance in the case Bharat Sanchar Niqam Limited & ALr, Vg,, Dhanurdhar Champatirav (2010) 1 SCC 673, wherein the Apex Court has held that in case an arbitrator is not appointed till the application under Section 11(6) is filed, the party would lose its right to appoint an arbitrator. Relevant portion of the judgment reads as under: "7. A plain reading of Section 11(5) of the Act would show that if one party demands appointment of an arbitrator and the other party does not appoint any arbitrator within thirty days of such demand, the right to appointment at the instance of one of the parties does not get automatically forfeited. lf the appellant makes an appointment even after thirty days of demand but the first party has not moved the Court under Section 11, that action on the part of the appellant would be sufficient. ln other words, in cases arising under Section 11(6), if the respondent has not made an appointment within thirty days of demand, right to make an appointment of an arbitrator is not forfeited but continues, but such appointment shall be made before the other party files the application.under Section 11 seeking appointment of an arbitrator before the High Court. It is only then the right of the respondent ceases." In view of the settled position of law, the stand taken by counsel for the respondent cannot be accepted. Petitioner has also filed an application [A.No.L4269l20II] under Section 151 CPC, praying that having regard to the nature of dispute, President/ Chairman from all India Institutions run by people in the advertising and media industry like (i) President of Indian Broadcasting Foundation or (ii) Indian Newspaper Society or (iii) Audit Bureau of Circulation or (iv) Indian Society of Advertisers or f- 4. 5. ARB.P.252/20LL 2/4 ttIc Agencies 6. (v) News Broadcasters Association or (vi) Advertising Association of India or a person nominated of these institutions from their membership, may be appointed as an Arbitrator. Counsel for the respondent has opposed this application and submitted that the nature of dispute is not such which would require any of the suggested persons, to be appointed as an arbitrator, or which cannot be adjudicated upon by a formerJudge of this court. I have heard counsel for the parties and also perused the application IlA.No.14 269/2077] which has been filed. No doubt section 11 (B) of the Arbitration & Conciliation Act, 1996 casts a duty upon the court to have regard to any qualifications which the arbitrator is expected to possess under the agreement., The object of Section 11(B) of the Act is to safeguard the rights of the parties, wherei there is a complicated dispute requiring high technical knowledge and expertise. To safeguard such a situation the provision has laid down that an arbitrator, who does not possess the requisite qualifications is not appointed. The present agreement does not take into account such a situation nor the nature of dispute is such which requires a person to be appointed with technical knowledge and expertise. The nature of dispute is also not of a kind which cannot be decided by a former Judge. Accordingly, the prayer made in the application [|A.No.l-.426912011.1 is rejected and the application is dismissed. 7. b ,N ARB.P. 2s2/201,1 s/4 I B. Accordingly, Justice Mukul Mudgal, former Chief Justice of Punjab & Haryana High Court, (Cell No.9818000250) is appointed as Sole Arbitrator to adjudicate upon all disputes and differences including claims and counter claims arising between the parties. Fee of the Arbitrator shall be borne by the parties equally as per the schedule maintained by Delhi High Court Arbitration Centre. The Arbitrator shall give prior notice to the parties before commencing the proceedings. Petition stands disposed of. Let a copy of this order be sent directly to learned Arbitrator. 3 NOVEMBER 29,ZALL SSN ARB.P" 252/20L1 E-s'-9'^b'- - G.s.stsrANl,I- 4/4 g \ i