Bela M. Trivedi, J. - (1.) THE present application has been filed by the applicant for the appointment of an independent Arbitrator/Arbitral Tribunal of sole Arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the said Act'), to adjudicate and settle the disputes between the parties.
(2.) THE short facts, giving rise to the present application, are that the applicant had joined the services of the respondent -company as the Head - Accounts & Finance, as per the employment agreement, and the service bond dated 1/3/2013, at Annexure -1 and 2 respectively. The applicant being not comfortable with the respondent submitted his resignation on 11/4/2013, and continued to serve upto 14/5/2013, in view of the condition for giving one month's notice as per service bond. Thereafter, the applicant served a legal notice dated 18/5/2013, calling upon the respondent to pay the applicant his due salary and relieve him from the company. The respondent, in response to the said notice, gave reply through its Advocate on 27/5/2013, calling upon the applicant to withdraw the legal notice and join the office within seven days from the receipt of the reply. Thereafter, it appears that the respondent vide letter dated 16/9/2013 gave a legal notice under Section 11 of the said Act appointing Shri Rahul Kamwar, Advocate as the sole arbitrator to resolve the disputes between the parties. According to the applicant, the applicant came to know about the said appointment only when the Arbitrator issued the notice of appearance on 21/11/2013 (Annexure -6), calling upon the applicant to attend the preliminary meeting held on 8/12/2013. The applicant having appeared before the Arbitrator raised the objection against the Constitution. The applicant thereafter had approached this Hon'ble Court by filing S.B. Civil Writ Petition No. 21106 of 2013 under Article 226 of the Constitution, however the same was withdrawn by the applicant. The applicant thereafter filed the present application seeking appointment of arbitrator under Section 11 of the said Act. The application has been resisted by the respondent by filing the reply and raising the preliminary objection as regards the maintainability of the application. It is sought to be submitted by the learned counsel Mr. Sudesh Bansal for the applicant that the respondent could not have appointed the Arbitrator of its own choice under Section 11 of the said Act as sought to be done vide letter dated 16/9/2013. According to him, the Arbitrator appointed by the respondent -company, was associated with the said company and the applicant had the apprehension that he would not act as an independent Arbitrator. He also submitted that the Arbitrator, on the very first day of preliminary hearing, had directed the parties to pay Rs. 10,000/ - by way of fees, which was not proper on his part, as the claim involved was hardly for Rs. 1 lakh, and such a conduct could be termed as a misconduct, entitling the applicant to approach this Hon'ble Court for appointment of independent Arbitrator. Pressing into service Sections 12 and 13 of the said Act, he also submitted that the appointment of Arbitrator could be challenged on justifiable doubts as to his independence and impartiality. However, the learned counsel Mr. Ganesh Joshi for the respondent, placing reliance upon the provisions contained under Section 11 of the said Act read with the condition contained in the service bond, submitted that once the parties had agreed to appoint the Arbitrator as per the said term of the service bond, the applicant could not have approached this Court for appointment of Arbitrator under Section 11 of the said Act, more particularly when the respondent had already appointed the Arbitrator. He also submitted that in absence of any allegation of misconduct, the present application would not be maintainable. Mr. Joshi has relied upon the decisions of Apex Court in cases of Bhupinder Singh Bindra vs. Union of India & Anr., : AIR 1995 Supreme Court 2464 & The Iron and Steel Co. Ltd. vs. M/s. Tiwari Road Lines, : AIR 2007 Supreme Court 2064 (1) in support of his submission.
(3.) HAVING regard to the submissions made by the learned counsels for the parities, and to the documents on record, in the light of the provisions contained in Section 11 of the said Act, it appears that this is a case where the parties had agreed to resolve the disputes or difference in accordance with the said Act, though the sole Arbitrator to be appointed by the respondent -company as per condition No. 6 of the service bond dated 1/3/2013. On the dispute having arisen between the parties, the respondent pursuant to the said clause has appointed Shri Rahul Kamwar, an Advocate as the Arbitrator. It is pertinent to note that the applicant has not given any notice calling upon the respondent to appoint any other Arbitrator before filing the present application, and therefore in the opinion of the Court, the present application under Section 11 of the said Act, would not be maintainable. In the instant case, the parties having agreed on a procedure for the appointment of Arbitrator as per Clause 6 of the service bond, the Court could not appoint the Arbitrator unless the circumstances as contemplated in sub -section (6) of Section 11 arise. Such being not the issue in the present case, the present application as such is not maintainable in the eye of law. The Apex Court in case of The Iron and Steel Company Ltd. vs. M/s. Tiwari Road Lines, : AIR 2007 Supreme Court 2064 (1) has aptly dealt with the situation in para 8 of the decision, which reads as under: - "The legislative scheme of Section 11 is very clear. If the parties have agreed on a procedure for appointing the arbitrator or arbitrators as contemplated by sub -section (2) thereof, then the dispute between the parties has to be decided in accordance with the said procedure and recourse to the Chief Justice or his designate cannot be taken straightaway. A party can approach the Chief Justice or his designate only if the parties have not agreed on a procedure for appointing the arbitrator as contemplated by sub -section (2) of Section 11 of the Act or the various contingencies provided for in sub -section (6) have arisen. Since the parties here had agreed on a procedure for appointing an arbitrator for settling the dispute by arbitration as contemplated by sub -section (2) and there is no allegation that anyone of the contingencies enumerated in clauses (a) or (b) or (c) of subsection (6) had arisen, the application moved by the respondent herein to the City Civil Court, Hyderabad, was clearly not maintainable and the said court had no jurisdiction to entertain such an application and pass any order".;