IMPORTANT POINT
Appointment of Arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of sub section (8) of Section 11 of Arbitration and conciliation Act have to be kept in view, considered and taken into account.

JUDGMENT

Tarun Chatterjee, J. —

1. Leave granted.

2. These appeals by special leave have been filed against the orders dated 5th of January 2005 in A.R.B.P. Nos. 11, 12, 17, 18 and 28 of 2005 passed by the High Court of Orissa whereby the High Court had appointed She Bibhudhendra Mishra, a Senior Advocate of the Orissa High Court as the sole arbitrator on the application of the respondent filed under .Section 11 (6)• of the Arbitration and Conciliation Act 2006 (hereinafter referred to as “the Act”). Since the parties and the subject matter of the dispute are the same, we have clubbed all these appeals and the -same are being decided analogously by this common judgment to avoid any confusion.

3. The relevant facts leading to the• filing of these appeals as emerging from the records may be briefly stated as follows The parties herein entered into a contract pursuant to distinct notices -inviting tender by BSNL [in short ‘the appellant’ ] for the work of construction of 4 Nos. of Type-II, 2 Nos. Type-III and 1 No. of Type-IV Staff Quarters at Bhanjanagar of vertical extension to combined building at Aska of 3 Nos. of Type III , 3 Nos. of Type II and 4 K type T.E. building at Jankia and of vertical extension to 8 Nos. of Type II and 6 Nos. of Type IV staff quarters CTTC compound Vanivihar, Bhubaneshwar.

4. The said contract contained an arbitration clause In terms whereof the Chief Engineer, Telecommunication/ Postal Department In charge of the work at the time of dispute, or if there be no Chief Engineer, the Administrative Head of the said Telecommunication/ Postal Department was to be appointed as a sole arbitrator. The said provision envisaged that In terms thereof no person other than the ope appointed by such Chief Engineer or Administrative Head of the Telecommunication/ Postal as aforesaid should act as arbitrator to decide the disputes referred to him.

5. The Respondent ,by. letters, requested the Chief Engineer ( Civil) for appointment of an arbitrator to adjudicate the disputes• between the parties if, terms of clause 25 of the respective agreements. According to the respondent, letters were received by the Chief Engineer of the appellant no. 1 on different dates. The Appellants having failed to respond to the letters of respondent requiring them to appoint an arbitrator and to appoint an arbitrator in response to such letters within stipulated period in accordance with Clause 25 of the respective Agreements, the ‘respondent was constrained to file petitions under Section 11(6) of the Act for appointment of an Arbitrator. However, according to the case made out by the appellants, on 9th of March, 2005, Chief Engineer (Civil), BSNL had already appointed Sri. Gurbaux Singh, Principal Chief Engineer (Arbitration) BSNL vide its office letter No. 69- 41(05)/CE(c)/BBSR/205. By the impugned order, the High Court allowed application under S. 11(6) of the Act, and appointed one Sri. Bibhudhendra Mishra in place of departmental nominee Sri. Gurbaux Singh - who was appointed by Chief Engineer (Civil) BSNL of appellant No.1.

6. Feeling aggrieved by the said order of the High Court, the appellant has filed these special leave petitions which on grant of leave, were heard In the presence of learned counsel for the parties.

7. Before we consider the arguments raised by the learned counsel for the parties before us, it would be necessary to refer to Section 11 of the Act, which reads as under:

“Section 11. Appointment of arbitrators. (1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

(2) Subject to sub-section

(6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

(3) & (4)..............omitted because these are not necessary for our purpose

(5) Failing any agreement referred to ~n sub- section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a” request by one party f