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TMI Blog2000 (10) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The 1st respondent did not appoint an Arbitrator even after the lapse of thirty days, but filed Arbitration Petition No. 405 of 1999 on 26-10-1999 under section 9 of the Act for interim protection. On 25-11-1999, the 1st respondent appointed the second respondent as the sole Arbitrator by invoking clause 20.9 of the Lease Agreement and the Arbitrator in turn issued a notice to the appellant asking them to make their appearance before him on 13-3-2000. Thereafter, the appellant filed Arbitration Application No. 2 of 2000 before the Hon'ble Chief Justice of Bombay and prayed for appointment of another Arbitrator and the first respondent opposed this application. This petition was rejected by the Chief Justice holding that as the Arbitrator had already been appointed by the first respondent, the lessor, the petition was not maintainable. This order is challenged before us. 3. We heard the appellant's counsel Mr. V.A. Mohta and respondent's counsel Mr. R.F. Nariman. The appellant's counsel questioned the authority of the first respondent in appointing an Arbitrator after the long lapse of the notice period of 30 days. According to the appellant, the power of appointment should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. An application under sub-section (6) of section 11 can be filed when there is a failure of the procedure for appointment of Arbitrator. This failure of procedure can arise under different circumstances. It can be a case where a party who is bound to appoint an Arbitrator refuses to appoint the Arbitrator or where two appointed Arbitrators fail to appoint the third Arbitrator. If the appointment of Arbitrator or any function connected with such appointment is entrusted to any person or institution and such person or institution fails to discharge such function, the aggrieved party can approach the Chief Justice for appointment of Arbitrator. 6. The appellant in his application does not mention under which sub-section of section 11 the application was filed. Evidently it must be under sub-section (6)(a) of section 11, as the appellant has no case that a notice was issued but an Arbitrator was not appointed or that there was a failure to agree on certain Arbitrator. The contention of the appellant might be that the first respondent failed to act as required under the procedure. 7. Therefore, the question to be considered is whether there was any real failure of the mechanism prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Bom. CR 189. There, the petitioner, a Government Contractor, as per the form of the Arbitration clause requested the Secretary, P.W.D. to appoint the arbitrator. The Secretary, P.W.D. did not take any action and the petitioner filed an application under section 11(6). After the filing of this application, the respondent appointed an Arbitrator and urged before the Chief Justice that application under section 11(6) filed by the petitioner became infructuous. It was held that the petitioner had waited for 30 days for appointment of the arbitrator and as the respondent had failed to appoint the arbitrator the objection was not sustainable and the appointment of arbitrator made by the respondent was not valid in the eye of law. The above decision has no application to the facts of this case as in the present case, the Arbitrator was already appointed before the appellant invoked section 11. The counsel for the appellant contended that the Arbitrator was appointed after a long lapse of time and that too without any previous consultation with the appellant and, therefore, it was argued that the Chief Justice should have appointed a fresh arbitrator. We do not find much force in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In all the above cases, therefore, the appointment of the Arbitrator was not made by the opposite party before the application was filed under section 11. Hence, all the above cases are not directly in point. 13. In the present case, the respondent made the appointment before the appellant filed the application under section 11 but the said appointment was made beyond 30 days. Question is whether in a case falling under section 11(6), the opposite party cannot appoint an Arbitrator after the expiry of 30 days from the date of demand? 14. So far as cases falling under section 11(6) are concerned - such as the one before us - no time limit has been prescribed under the Act, whereas a period of 30 days has been prescribed under section 11(4) and section 11(5). In our view, therefore, so far as section 11(6) is concerned, if one party demands the opposite party to appoint an Arbitrator and the opposite party does not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the Court under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appointing the second respondent as the Arbitrator, failed to follow the procedure contemplated under the Agreement or acted in contravention of the arbitration clause. 19. Lastly, the appellant alleged that 'nomination' mentioned in the arbitration clause gives the first respondent a right to suggest the name of the Arbitrator to the appellant and the appointment could be done only with the concurrence of the appellant. We do not find any force in the contention. 20. In P. Ramanatha Aiyar's Law Lexicon Second Edition at page 1310, the meaning of the word 'nomination' is given as follows : "The action, process or instance of nominating; 2. The act, process or an instrument of nominating; an act or right of designating for an office or duty. 'Nominations' is equivalent to the word 'appointments', when used by a mayor in an instrument executed for the purpose of appointing certain persons to office." Nomination virtually amounts to appointment for a specific purpose and the first respondent has acted in accordance with clause 20.9 of the Agreement. So long as the concurrence or ratification by the appellant is not stated in the arbitration clause, the nomination amounts to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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