MANOJ KUMAR GUPTA, J. - (1.) The instant application has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') seeking appointment of an arbitral tribunal through intervention of this Court in exercise of power under Section 11 of the Act.
(2.) Learned counsel for the applicant upon being asked to show the arbitration agreement between the parties, he submitted that there is no such agreement. He further submitted that since there is no arbitration clause in the work order in relation to which arbitration is being sought, therefore, he has invoked sub-section (3) of Section 11.
(3.) The submission made by learned counsel for the applicant is wholly misconceived. In my considered opinion, in the absence of an arbitration agreement, this Court has no power to compel any party to get the dispute settled through arbitration unless they voluntarily agree for the same. Section 11 (2), (3), (4), (5) and (6) which are relevant, are reproduced below:- "(2) Subject to sub-section (6), the parties are free to agree on a procedure 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, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be?; (5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree, ?the appointment shall be made on an application of the party inaccordance with the provisions contained in sub-section (4)?; (6) Where, under an appointment procedure agreed upon by the parties,? (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, "the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be"; to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.";