IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Arbitration Petition No. 15 of 2008 M/s Impex Metal & Ferro Alloys Pvt. Ltd. …… Petitioner Versus Bharat Heavy Electricals Ltd. …… Respondent …… Miss Menka Tripathi, Advocate for the petitioner. Mr. V.K. Kohli, Senior Counsel with Mr. Rakesh Thapaliyal, Advocate for the respondent. Hon’ble V.K. Gupta, C.J. It is the undisputed case of the parties that there exists between them an Arbitration Agreement, which is in the form of Clause 9 of the Terms and Conditions accompanying and forming an integral part of the Purchase Order. Clause 9 being the Arbitration Agreement is reproduced hereunder, which reads thus: “9. Settlement of disputes: In all cases of disputes the matter shall be referred for arbitration to arbitrator to be appointed by the General Manager or any official who is the administrative head to the Bharat Heavy Electricals Ltd. Haridwar. The award of arbitrator shall be final and binding on both the parties. The arbitrator shall have the power to extend the time for making his award with the consent of the parties.” Since the petitioner had some grievances and wanted the adjudication and settlement of disputes in terms of the aforesaid Arbitration Agreement, on 13.02.2008, had sent a notice through its counsel to the respondent in which, inter alia, the grievances were projected and ultimately the respondent was requested to refer the disputes to arbitration by appointment of Arbitrator. The operative part of the notice containing the aforesaid request reads thus: “In view of the aforesaid facts and circumstances and in terms of clause 9 of the Purchase Orders, I as an Agent and Advocate of my client above named pray to your goodself for referring the dispute between the parties for Arbitration to an Arbitrator within thirty days from receipt of the request made herein, failing whereof my client shall have no other alternative to take recourse of law as per provisions of section 11(6) of the Arbitration and Conciliation Act, 1996 without giving any further reference to you in the matter.” 2 It is the undisputed case of the parties in this Court that despite receipt of the aforesaid notice by the respondent, no action at all was taken. The respondent despite having received the aforesaid notice did not appoint any Arbitrator either within 30 days from the date of the receipt of the notice, or at any time thereafter till the petitioner actually approached this Court by filing the present petition U/S 11 (6) of the Arbitration and Conciliation Act. 1996. Actually, it is worthwhile to observe and mention that even in the aforesaid operative part of the notice, the petitioner had indicated in clear and unambiguous terms that if the Arbitrator were not appointed by the respondent, the petitioner would have no alternative but to invoke Section 11 (6) of 1996 Act by approaching this Court. Mr. V.K. Kohli, learned Senior Counsel appearing for the respondent submits that the respondent has since appointed one Shri N.K. Soni as the sole Arbitrator vide an appointment order issued on 16.06.2008, copy whereof has been enclosed along with the Short Counter Affidavit filed by the respondent on 27.06.2008. It is by now a settled position of law that if a party or an Authority competent to appoint the Arbitrator, despite request made and received in that behalf, fails to act in the matter of appointment of the Arbitrator till the petition is filed in the Court, the party or Authority waives and/or loses its right to appoint the Arbitrator and any appointment made of any Arbitrator during the pendency of Section 11 (6) Application in the Court will be of no meaning or consequence. The appointment of Shri N.K. Soni as Arbitrator, therefore, has to be treated as null and void and of being without any consequence. For the aforesaid reasons, this petition is allowed. Shri Justice Rajesh Tandon (Retd.), a former judge of this Court is hereby appointed as a Single Member Arbitral Tribunal to adjudicate upon the disputes between the parties and pass the Arbitral Award. (V.K. Gupta, C.J.) 11.11.2008 A