Ashwani Kumar Mishra, J. - (1.) This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator on the ground that the arbitrator appointed has failed to act, and that his mandate stands terminated in terms of the arbitration clause itself. It is contended that as facts are admitted, therefore, this Court may proceed to appoint an arbitrator. Reliance is placed upon a decision of this Court in M/s Aargee Engineers & Co. and another Vs. Era Infra Engineering Ltd and others, 2017 4 ADJ 513, in order to contend that for such purposes, it is not necessary for the applicant to be relegated to the remedy before the arbitrator or before the 'Court', and that this Court may also exercise jurisdiction under Section 11 of the Act. Para 33 of the judgment in M/s Aargee Engineers & Co. is relied upon, which reads as under:- "33. A conjoint reading of various sub-sections of Section 11 of the Act has been interpreted to vest jurisdiction in the Supreme Court or High Court, as the case may be, to appoint an impartial arbitrator having requisite qualification to secure speedy resolution of dispute, by a reasoned order. Expression 'necessary measure', 'independent and impartial arbitrator' etc. are words of wide amplitude, and have been invoked to vest jurisdiction so as to secure object of appointment of an impartial arbitrator and to secure early resolution of dispute. Although all endeavours are to be made to implement the terms of agreement but in circumstances already noticed, and for securing end objective of early resolution of dispute by appointing an impartial arbitrator required departure can always be made by a reasoned order."
(2.) Application is opposed by the respondents contending that the applicant company itself had failed to cooperate in the proceedings before the arbitrator and is trying to take advantage of its own wrong, and therefore, facts being disputed, the remedy of applicant would be to raise all such issues before the arbitrator.
(3.) Before proceeding to deal with the respective submissions, facts relevant for the purposes need be noticed. An agreement was duly entered into between the parties, which contains Clause 37 providing for resolution of dispute by way of arbitration under the contract. The dispute is to be referred to the sole arbitration of a serving officer having degree in engineering or equivalent or having passed final/direct final examination of sub-division II of institution of Surveyor (India) recognized by the Government of India. The clause further provides that if the arbitrator so appointed resigns or vacates his office or is unable or unwilling to act due to any reason whatsoever, the authority appointing him may appoint a new arbitrator to act in his place. As per the arbitration agreement, the arbitrator is deemed to have entered on the reference on the date he issues notices to both the parties. Arbitrator also has jurisdiction to proceed ex-parte and deliver his award in case either of the parties fails to take part in the proceedings despite notices. The last part of the agreement which puts a time limit for delivery of award is relevant, and is reproduced:- "The Arbitrator shall give his award within a period of six months from the date of his entering on the reference or within the extended time as the case may be on all matters referred to him and shall indicate his findings, alongwith the sums awarded, separately on each individual item of dispute. The arbitrator shall give reason for the award in each and every case irrespective of the value of claims or counter claims. The value of arbitration shall be such place or places as may be fixed by the Arbitrator in his sole discretion. The Award of the Arbitrator shall be final and binding on both parties to the Contract.";