TMI Blog2022 (7) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... Once the dispute has arisen between the parties and despite invocation of the arbitration clause in terms of the agreement no arbitrator is appointed, it can be said that the authority has forfeited its right to appoint the arbitrator in terms of the arbitration agreement and thereafter the arbitrator has to be appointed under Section 11(6) of the Act. In the present case also, the respondent failed to appoint an arbitrator as per the agreed procedure and in terms of the agreement. Therefore, the respondent forfeited its right to appoint an arbitrator in terms of the agreement and therefore the appellant was justified in filing the application before the High Court for appointment of a sole arbitrator in exercise of powers under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PPEAL NO. 4829 OF 2022 - - - Dated:- 27-7-2022 - M.R. SHAH And B.V. NAGARATHNA, JJ. For the Appellant : Mr. Ramesh Singh, Sr. Adv. Ms. Monisha Handa, Adv. Mr. Mohit D. Ram, AOR Mr. Rajul Shrivastav, Adv. Mr. Anubhav Sharma, Adv. For the Respondent : Mr. K. M. Nataraj, ASG Mr. Jayant K Sud, ASG Mr. Randeep Sachdeva, Adv. Mr. Kartik Jastra, Adv. Ms. Geetashi Chandna, Adv. Ms. Durga Dutt, Adv. Mr. Om Prakash Shukla, Adv. Mr. Vinayak Sharma, Adv. Mr. Bhuvan Kapoor, Adv. Mr. Raghav Sharma, Adv. Mr. Amrish Kumar, AOR JUDGMENT M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 15.09.2021 passed by the High Court of Judicature at Allahabad in Arbitration Application No. 15 of 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has observed that the respondent has failed to appoint an arbitrator despite raising the demand of appointing an arbitrator, the application was hence liable to succeed. However, thereafter instead of appointing the sole arbitrator in exercise of powers under Section 11(6) of the Act, the High Court has directed to appoint an arbitrator in terms of clause 64(3)(b) of the GCC. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court in not appointing the sole arbitrator and instead directing the parties to appoint the arbitrator as per the GCC, the original applicant before the High Court has preferred the present appeal. 3. Shri Ramesh Singh, learned Senior Advocate appearing on behalf of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into between the parties; (iii) even as per the communication dated 16.07.2020, the GCC, July 2020 shall be applicable to works contracts on Indian Railways with prospective effect. It is submitted that therefore the High Court has seriously erred in directing to constitute an Arbitral Tribunal as per clause 64(3)(b) of the GCC. 4. Shri K.M. Nataraj, learned ASG appearing on behalf of the respondent is not in a position to dispute that after the invocation of the arbitration clause, the General Manager/Railway failed to appoint the sole arbitrator in terms of the agreement. He is also not in a position to satisfy the Court as to how the General Conditions of Contract shall be applicable with respect to the agreement between the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to above shall be final and binding on the parties hereto and such decision of the General Manager shall not be called in question before the arbitrator by either of the parties hereto. (b) In the event of the arbitrator dying, neglecting or refusing to act, or resigning or being unable to act for any reason, or his award being set aside by the Court for any reason it shall be lawful for the authority appointing the arbitrator to appoint another arbitrator in place of the outgoing arbitrator in the manner aforesaid. (c) It is further a term of this Agreement that no person other than the person appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible, the matter is not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 11(6) of the Act and to that it is observed and held that appointment of arbitrator by the Corporation during pendency of the proceedings under Section 11(6) of the Act was of no consequence, as failing to appoint an arbitrator within the prescribed time, the Corporation had lost its right to appoint an arbitrator. 6.2 In the present case also, the respondent failed to appoint an arbitrator as per the agreed procedure and in terms of the agreement. Therefore, the respondent forfeited its right to appoint an arbitrator in terms of the agreement and therefore the appellant was justified in filing the application before the High Court for appointment of a sole arbitrator in exercise of powers under Section 11(6) of the Act. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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