Arbitration and Conciliation Act, 1996 – s.11(6) r/w s.11(9) – Appointment of arbitrator – The scope under s.11(6) read with s.11(9) is very limited to the extent of appointment of Arbitrator – The Court has to see whether there exists an Arbitration Agreement between the parties – While deciding the question of appointment of Arbitrator, court has not to touch the merits of the case as it may cause prejudice to the case of the parties – In the instant case, arbitration clause existed in the contract – Accordingly, sole arbitrator appointed to adjudicate the disputes.
Disposing of interlocutory application and petitions, the Court
HELD: 1. The first and the foremost thing is the existence of an arbitration agreement between the parties to the petition under Section 11 of the Act and the existence of dispute(s) to be referred to Arbitrator is condition precedent for appointing an Arbitrator under Section 11 of the Act. While deciding the question of appointment of Arbitrator, court has not to touch the merits of the case as it may cause prejudice to the case of the parties. The scope under Section 11(6) read with Section 11(9) is very limited to the extent of appointment of Arbitrator. Perusal of contract showed that arbitration clause did exist in the Contract. [Paras 7, 9][1030-D-E; 1031-F, G]
2. It is a cardinal principle of the Arbitration and Conciliation Act that the parties are free to decide the number of arbitrators, provided, it is an odd number, as well as the procedure for appointing them. However, if the parties are not able to agree on the said procedure, or constitute the Arbitral Tribunal to their mutual satisfaction, either of the party has an option to route to an appropriate remedy under Section 11 of the Act, which provides detailed machinery for appointment of Arbitrator through judicial intervention. Accordingly, Justice Amitava Roy, a former Judge of this Court, is appointed as the sole Arbitrator to adjudicate the disputes between the parties on such fees he may fix. The said appointment is subject to the necessary disclosure being made under Section 12 of the Act and the Arbitrator not being ineligible under Section 12(5) of the Act. [Paras 10-11][1031-GH; 1032-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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