IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Arbitration Application No. 2 of 2011 M/s Desh Construction Company. ……… Applicant. Versus Union of India & others. ……… Respondents. & Arbitration Application No. 3 of 2011 M/s Desh Construction Company. ……… Applicant. Versus Union of India & others. ……… Respondents. Mr. Tapan Singh, Advocate for the applicant. Mr. Pradeep Joshi, Standing Counsel (Central Govt.) for the respondents. BARIN GHOSH, C.J. (Oral) Delay Condonation Application No. 11509 of 2011 In Arbitration Application No. 2 of 2011: Rejoinder affidavit filed with the Miscellaneous Application is kept with the record. The Application, made therefor, is disposed of. Arbitration Application No. 2 of 2011 & Arbitration Application No. 3 of 2011: On 24th February, 2011, the Applications were filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Act”) seeking this Court to appoint an Arbitrator in terms of the arbitration agreement. It was contended that despite request, the appointing authority has failed to appoint an Arbitrator. A case under sub- section (6) of Section 11 of the Act was, accordingly, made out. 2. In the counter affidavit, it was contended that the appointing authority has already appointed an Arbitrator by a communication dated 21st February, 2011. In that backdrop, it was contended by the applicant that the Applications were listed on 25th February, 2011, when it was not submitted that Arbitrator has been appointed and, accordingly, it is apprehended that the letter appointing the Arbitrator has been antedated. 2 In the circumstances, respondents were directed to produce documentary evidence to suggest as to when the postal packet, containing the letter appointing the Arbitrator, was dispatched. Accordingly, those have been produced, wherefrom, it appears that, on 25th February, 2011, the letter appointing the Arbitrator was dispatched. There is no doubt, therefore, that step to communicate appointment of the Arbitrator was taken only on 25th February, 2011 when the Applications for appointment of an Arbitrator had already been filed in this Court. The question is, in such circumstances, what the Court will do. It is now settled law that an Arbitrator can be appointed any time before an Application has been filed in Court. In such view of the matter, on the filing of the Applications in the Court, right to appoint stood frozen. In the instant case, as it appears, the appointment was made on 21st February, 2011, but steps to communicate the appointment were taken on 25th February, 2011. From the documents annexed with the affidavit filed by the respondents, it is clear that the appointment letter, alone, was not submitted with the postal authority on 25th February, 2011, but, along with the said letter, many other letters were submitted with the postal authority for sending the same under registered post. 3. In the circumstances, the logical conclusion would be that the mere step to communicate was taken on 25th February, 2011, but the appointment was made on 21st February, 2011. Since the appointment had been made prior to the filing of the Applications, it would not be appropriate on the part of this Court to nullify the said appointment, which is otherwise valid and to substitute the said appointment by this Court. 4. The Applications, accordingly, fail and the same are dismissed. The applicant is at liberty to approach the Arbitrator already appointed. (Barin Ghosh, C.J.) 04.11.2011 G