MOHAMMAD RAFIQ,J. - (1.) This application under Section 11 of the Arbitration and Conciliation Act, 1996(for short 'the Act') was filed before the District Judge, Jaipur City, Jaipur(for short 'the trial court') on 09.10.2003 praying for substitution of sole arbitrator Mr. J.C. Sharma, who was nominated as such pursuant to Clause 7 of the Agreement executed between the parties. Necessity for appointment of sole arbitrator arose when the dispute between the parties cropped up. The applicants filed their claim before the sole arbitrator on 21.07.2001 on which notice was issued to the non-applicants for appearance before the sole arbitrator on 07.09.2001. Non-applicant No. 2, Ramavtar Gupta filed an application before the sole arbitrator under Section 12(3) and 13(2) of the Act on 07.09.2001 questioning the independence and impartiality of the sole arbitrator. Simultaneously, an application under Section 9 of the Act was filed by the applicants seeking appropriate interim relief. The Court vide order dated 28.07.2001 directed the parties to maintain status-quo. Non-applicant No. 2 filed his undertaking before the Court on 16.11.2002 that he shall neither transfer, mortgage, lease out or otherwise alienate the disputed property and maintain status-quo. Application under Section 9 of the Act was accordingly disposed off vide order dated 16.11.2002.
(2.) The Constitution Bench judgment of the Supreme Court in SBP and Co. v. Patel Engineering Ltd. and Another, (2005) 8 SCC 618 clarified that the Legislature did not want to confer the power on the Court as defined in the Act, namely, the District Court, and wanted to confer the power on the Chief Justices of the High Courts and on the Chief Justice of India. Taking note of Section 5 of the Act and the finality attached by Section 11(7) of the Act that adjudication is judicial in nature and it is obvious that no person other than a Judge and no non-judicial body can be designated for entertaining an application for appointing an arbitrator under Section 11(6) of the Act. It was held that the Chief Justice of the High Court cannot even designate a District Judge to perform such a function. The trial court, therefore, transferred this application to this Court.
(3.) It is quite unfortunate that this application though filed in 2008, has remained pending for almost five years before the District Judge and thereafter was transferred to this Court in 2008 and has again remained pending before this Court for a long time primarily for the reason that no one put in appearance on behalf of the non-applicants for quite some time. Matter was taken up for arguments today and arguments of learned counsel for the parties were heard. Although, in the normal course where the parties have in the agreement specified name of Arbitrator who shall conduct the proceedings, this Court under Section 11(6) of the Act would not have jurisdiction to appoint an arbitrator but where the named arbitrator has withdrawn himself from the arbitration on objection raised by the respondents which is what has happened in the present case, this Court can definitely intervene and substitute such arbitrator by appointing another independent arbitrator. The applicant has specifically averred in para 7 to 10 of the application that Mr. J.C. Sharma was named as arbitrator and non-applicant no. 2 questioned his impartiality and independence and raised objection as to his continuance and Mr. J.C. Sharma, sole arbitrator withdraw himself from the arbitration proceedings. Therefore, this Court is persuaded to appoint an independent arbitrator in the present case.;