TMI Blog2008 (8) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments. - CIVIL APPEAL NO. 5067 OF 2008, Civil Appeal No. 5068 /2008, Civil Appeal No. 5072 /2008, Civil Appeal No. 5073 /2008, Civil Appeal No. 5074 /2008, Civil Appeal No. 5075 /2008, Civil Appeal No. 5076 /2008, Civil Appeal No. 5078 /2008, Civil Appeal No - - - Dated:- 18-8-2008 - PASAYAT, ARIJIT, SATHASIVAM, P AND ALAM, AFTAB, JJ. JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted in all the Special Leave Petitions 2. Noticing two different views in two decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the parties. In other words, Clause (a) refers to parties to the agreement. Clause (c) relates to a person who may not be party to the agreement but has given consent to the agreement. It is also pointed out that there is a statutory mandate to take necessary measures, unless the agreement on the appointment procedure provided other means for securing the appointment. It is, therefore, submitted that before the alternative is resorted to agreed procedure has to be exhausted. The agreement has to be given effect and the contract has to be adhered to as closely as possible. Corrective measures have to be taken first and the Court is the last resort. It is also pointed out that while appointing an Arbitrator in terms of sub-section (8) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. (4) If the appointment procedure in sub-section (3) applies and (a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. (10) The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him. (11) Where more than one request has been made under sub-section (4) or sub-section (5) or subsection (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed arbitrators fail to reach an agreement expected of them under that procedure or (iii) a person including an institution fails to perform any function entrusted to him or it under the procedure. In other words, the third contingency does not relate to the parties to the agreement or the appointed arbitrators. 10. The crucial expression in sub-section (6) is a party may request the Chief Justice or any person or institution designated by him to take the necessary measures (underlined for emphasis). This expression has to read alongwith requirement in sub-section (8) that the Chief Justice or the person or an institution designated by him in appointing an arbitrator shall have due regard to the two cumulative conditions relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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