Hemant Gupta, J. - (1.) THE present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') is for appointment of an Arbitrator in respect of the disputes arising out an Agreement dated 22.01.2008. Vide the aforesaid agreement, the Petitioner was awarded work for construction of running and maintenance of (1) Unipole Signage Boards at different locations within the Municipal Corporation, Faridabad.
(2.) THE Petitioner served a notice dated 02.03.2010 seeking resolution of disputes through an Arbitrator as per Clause 28 of the Agreement, whereas the Respondent in the reply dated 23.03.2010 took up a stand that the Municipal Corporation has a right to get Arbitrator appointed as per terms and conditions of the agreement and that no Arbitrator can be appointed beyond the terms and conditions of the Agreement. However, the counsel for the Petitioner was communicated that his client may get the Arbitrator appointed as per the terms and conditions executed between the parties. A perusal of the reply shows that the existence of disputes between the parties is not disputed and that such disputes are required to be decided by an Arbitrator. Clause 28 of the Agreement contemplates the resolution of disputes by the sole arbitration of the Commissioner, Municipal Corporation, Faridabad or its nominee. It is specifically mentioned that there shall be no objection from the company to any such appointment on the ground that the Arbitrator so appointed is a Government servant or an Officer of Municipal Corporation, Faridabad. Though in terms of the aforesaid Agreement, the Commissioner or its nominee was to act as an Arbitrator, but the Respondent has failed to appoint an Arbitrator within 30 days of the notice served for such purpose. In fact, the stand of the Respondent is that the Petitioner has a right to get Arbitrator appointed as per the terms and conditions of the Agreement.
(3.) THEREFORE , in view of the judgment of the Hon'ble Supreme Court : (2000) 8 SCC 151, Datar Switchgears Ltd. v. Tata Finance Ltd. and Anr. Respondent is not competent to appoint an Arbitrator. Later in Union of India v. Bharat Battery Mfg. Co. (P) Ltd. : (2007) 7 SCC 684, the Hon'ble Supreme Court held: 9. We are unable to countenance the submission of the learned Counsel for the Appellant. Section 11(8) of the Act could have come to the aid of the Appellant had the Appellant appointed the arbitrator within 30 days from the date of receipt of request to do so from the Respondent or the extended time, as the case may be. In the present case, as noticed above, Section 11(6) petition was filed on 30 -3 -2006 by the Respondent. The Appellant stated to have appointed one Dr. Gita Rawat on 15 -5 -2006 i.e. after Section 11(6) petition was filed by the Respondent on 30 -3 -2006, which is not permissible in law. In other words, the Appellants are stopped from making an appointment of the arbitrator in terms of Clause 24 of the agreement after Section 11(6) petition is filed by the Respondent. Once Section 11(6) petition is filed before the court, seeking appointment of an arbitrator, the power to appoint an arbitrator in terms of arbitration clause of the agreement ceases.;