(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 10250 OF 2010 M/s. International Packaging Films Incorporation (IPF) 54, Tappan Road, Norwood, New Jersey, 07468, Through its proprietor, Mr. Anthony Cushieri, 54, Tappan Road, .. Petitioner Norwood, NJ07648. (Original defendant) versus 1. M/s. Cosmo Films Ltd., A Company incorporated under the provisions of Companies Act, 1956, having its factory and plant at B-14/9, M.I.D.C., Waluj Area, Bajaj Nagar, at Waluj - 431 136, District Aurangabad (M.S.), Through Mr. S.K. Mittal, Executive Director, Age : 58 years, R/o. B-14/9, M.I.D.C., Waluj Area, Waluj - 431 136. 2. M/s. Cosmo International (U.S.) Incorporation, A Company incorporated under the provisions of Companies Act, 1956, Having its operating office at 7, Federal St. STE 17, Danvera, MA, 0193, Through Mr. S.K. Mittal, Executive Director, Age : 58 years, R/o. B-14/9, M.I.D.C., Waluj Area, .. Respondents Waluj - 431 136. (Original plaintiffs) (2) ....................... Mr. P.M. Shah, Senior Advocate, with Mr. G.K. Naik Thigle, Advocate, for the petitioner. Mr. S.M. Godsay, Advocate, for respondent nos.1 and 2. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 15TH MARCH 2011 ORAL JUDGMENT : 1. Heard Senior Adv. Mr. P.M. Shah, with Adv. Mr. G.K. Naik Thigle, for the petitioner, and Adv. Mr. S.M. Godsay, for the respondents. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 3. The challenge is only to a communication dated 15-6-2010 sent by the 3rd Joint Civil Judge (Senior Division), Aurangabad, to a former Judge of this High Court appointing him as Arbitrator in the matter of Special Civil Suit No. 166/2001. (3) 4. Senior Adv. Mr. P.M. Shah contends that present petitioners moved application under Section 8 of the Arbitration and Conciliation Act, 1996 (For short, "1996 Act") and that application has been accepted by the trial court on 20th February 2002. The trial court then directed the plaintiff to submit names of Arbitrators within one week. Thereafter, certain names were submitted and ultimately only after the impugned communication dated 15-6-2010, the petitioner learnt about the appointment of Arbitrator. The petitioner had never consented to that name. According to the learned Senior Advocate, in this situation, only course possible is appointment of Arbitrator as per provisions of Section 11(9) of 1996 Act. 5. Adv. Mr. S.M. Godsay, appearing for the respondents / original plaintiffs, states that initially the trial court directed both parties to submit certain names and the petitioner / defendant also suggested some names. As arbitration through named persons could not materialize and no new names were proposed by the petitioner / defendant, the trial court has of its own written a letter to the retired Judge of this court on 12-2-2010 and inquired whether the Hon. Retired Judge would be in a position to accept the responsibility. After receipt of consent, the impugned appointment has been made. He states (4) that reliance upon provisions of Section 11(9) of 1996 Act is only for the purposes of delaying the matter as suit is pending since 2001. 6. It is apparent that after obtaining orders under Section 8 of 1996 Act, the petitioner / defendant has not taken any positive steps and thereafter has challenged the appointment made by the trial court of its own. Had parties agreed to some name, recourse to provisions of Section 11(9) would not have been necessary. 7. As applicability of Section 11(9) of 1996 Act is not in dispute, in the present situation, it is apparent that the parties have to take appropriate steps in accordance with said provision to seek appointment of Arbitrator. The impugned direction, therefore, cannot be sustained. 8. In the result, the petition is allowed. The impugned order dated 15-6-2010, passed by the learned 3rd Joint Civil Judge (Senior Division), Aurangabad, thereby appointing Arbitrator in Special Civil Suit No. 166/2001, is quashed and set aside. Parties shall be at liberty to take steps as are permissible in law. (5) 9. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp10250