- (1.) This is an application for recall of the order dated 22.1.2010. By that order, the application was dismissed and the learned Chief Justice exercising his powers under Section 11 of the Arbitration & Conciliation Act, 1996 proceeded on the basis that during the pendency of the application, the Respondents have appointed an Arbitrator.
(2.) By the present application, what the Petitioner contends is that the arbitration proceedings have been started after filing of the application. It is also pointed out that if the parties to the dispute failed to appoint an Arbitrator within 30 days, on receipt of such request, the Chief Justice can make the appointment of an independent and impartial Arbitrator.
(3.) The law as now settled is that merely because Section 11 of the Arbitration & Conciliation Act, 1996 is invoked, that does not per se mean that an arbitrator in terms of the arbitral agreement cannot be appointed. It is in the discretion of the Chief Justice or his delegate, who is hearing the matter to decide whether to appoint an arbitrator in terms of the agreement or to appoint an independent arbitrator. In the instant case, the learned Chief Justice noted the fact that an Arbitrator had been appointed and accordingly dismissed the application. Therefore, the application as filed would not be maintainable.;