IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Arbitration Application No. 09 of 2009 M/s Sonu Enterprises, Haridwar .……… Applicant. Versus Bharat Sanchar Nigam Lt. and another .………. Respondents. Present: Mr. Anil Kumar Joshi, Advocate for the applicant. Mr. Arvind Vashisth, Advocate for the respondents. Date of decision: 02-04-2010 JUDGMENT J.S. KHEHAR, C. J. (Oral) The applicant entered into a contractual agreement with the respondents on 07.07.2006. The contract executed between the parties is available on the record of this case as annexure-1. The aforesaid contractual agreement dated 07.07.2006 incorporates an arbitration clause. Clause 17 of the contractual agreement, which provides for arbitration in case of dispute between the parties, is being extracted hereunder:- “17. ARBITRATION: - 17.1 In the event of any question, dispute or difference arising under this agreement or in connection there-with except as to matter the decision of which is specifically provided under this agreement, the same shall be referred to sole arbitration of the Chief General Manager, Uttaranchal Circle or in case his designation is changed or his office is abolished then in such case to the sole arbitration of the officer for the time being entrusted whether in addition to the functions of the Chief General Manager Uttaranchal Circle or by whatever designation such officers may be called (hereinafter referred to as the said officer) and if the Chief General Manager, Uttaranchal Circle or the said officer is unable or unwilling to act as such to the sole arbitration or some other person appointed by the Chief General Manager, or the said officer. The agreement to appoint an arbitrator will be in accordance with the Arbitration and Conciliation Act, 1996. There will be no objection to any such appointment that the arbitrator is BSNL Servant or that he has to deal with the matter to which the agreement relates or that in the course of his duties as BSNL Servant he has expressed views on all or any of the matter under dispute. The award of the arbitrator shall be final and binding on the parties. In the event of such arbitrator to whom the matter is originally referred, being transferred or vacating his office or being unable to act for any reasons whatsoever such Chief General Manager or the said officer shall appoint another person to act as arbitrator in accordance with terms of the agreement and the person so appointed shall be entitled 2 to proceed from the stage at which it was left out by his predecessors. 17.2 The arbitrator may from time to time with the consent of parties enlarge the time for making and publishing the award, subject to aforesaid Indian Arbitration and Conciliation Act, 1996 and the Rules made there under, any modification thereof for the time being in force shall be deemed to apply to the arbitration proceeding under this clause. 17.3 The venue of the arbitration proceeding shall be the office of the Chief General Manager, Uttaranchal Circle or such other Places as the arbitrator may decide.” 2. Consequent upon a dispute having arisen between the parties, the applicant addressed a communication dated 02.04.2009 (Annexure-2), requiring the respondents to appoint an arbitrator within a period of 30 days in terms of the mandate of section 11 of the Arbitration and Conciliation Act, 1996. Despite the aforesaid communication, no arbitrator was appointed. The applicant then addressed another communication dated 20.06.2009 (Annexure-3) repeating the request which was earlier made by the applicant on 02.04.2009. Yet again, no arbitrator was appointed. 3. In the background of the factual position (depicted hereinabove), the applicant filed the instant arbitration application for appointment of an arbitrator. The factual position (depicted hereinabove) is not disputed at the hands of the learned counsel for the respondents. It is, therefore, apparent that in spite of a request having been made by the applicant, an arbitrator was not unilaterally appointed by the respondents within a period of 30 days in terms of the mandate contained in section 11 of the Arbitration and Conciliation Act, 1996. In the aforesaid view of the matter, it is obligatory for this Court to appoint an arbitrator. 4. With the consent of the learned counsel for the parties, Sri V.B. Rai, former District and Sessions Judge, is appointed as Arbitrator. The arbitrator shall conduct his proceedings at Dehradun. He shall also determine his fee and other perquisites keeping in mind the amount involved in the dispute raised by the applicant. A copy of this order shall be furnished by the Registry of this Court to the arbitrator. The arbitrator shall issue notices to the rival parties before initiating proceedings vested in him. 3 5. The arbitration application stands disposed of in the aforesaid terms. (J.S. Khehar, C. J.) 02.04.2010 Amit