H. K. SEMA,J.

( 1 ) THIS is an application filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (in short "the Act")for appointment of an Arbitrator.

( 2 ) I have heard Dr. A. M. Singhvi, learned senior counsel for the applicant and Mr. Kailash Vasdev, learned senior counsel for the respondents at length.

( 3 ) THE sole question that arises for consideration in this petition is as to whether an application under Section 11 (6) of the Act is maintainable?

( 4 ) IN view of the order that I propose to pass, it may not be necessary to recite the entire facts, leading to the filing of the present application.

( 5 ) SUFFICE it to say that contract Nos. 2001-SI/25, 2001-SI/26 both dated 12th January 2001 and Contract no. 2001-SII/41 dated 28th February 2001 were amended/modified by way of a common addendum No. 1 on 2. 3. 2001. By an addendum dated 2nd March, 2001 clause (ii)was introduced. It reads:

" (ii) Settlement of disputes through Indian arbitration Council, Delhi. "

( 6 ) THE dispute having arisen and as agreed to by both the parties the matter was referred to one Mr. Samuel J. Marshall, who was agent for both the parties in the transactions and who also agreed to mediate between the parties. With the intervention of Mr. Samuel J. Marshal, the parties arrived at an agreement to resolve the dispute between the parties. The settlement agreement was entered into on 18. 1. 2002. Clause 18 of the settlement reads:

"18. Should any dispute or non implementation arise this will be adjudicated solely by Mr. Samuel J. Marshall. "

( 7 ) IT also appears from the letter dated 12. 11. 2002 and accepted on 21. 11. 2002 the parties have agreed to resolve the dispute under the following conditions:

1. That the venue for resolution of this dispute will take place in Singapore, assuming that mr. Marshall is resident there, alternatively the UK; 2. That the Agreement dated 18th January 2002 is governed by India Law; and 3. UNCITRAL rules will apply.

( 8 ) PURSUANT to the aforesaid agreement, an application was filed sometime in January 2004, before the Arbitrator namely Mr. Samuel J. Marshall. However, the respondents herein did not participate in the arbitration proceedings. On 20. 6. 2005, the Arbitrator proceeded with the arbitration at singapore and passed the Award in favour of the applicant.

( 9 ) AGGRIEVED by the Award dated 20. 6. 2005, the respondents herein challenged the said Award before the High court of Republic of Singapore in Originating Motion no. 35/2005/h inter alia on the ground of violation of principles of natural justice. On 31. 7. 2006, the High Court of singapore, set aside the Award with a liberty to the parties to apply for fresh arbitration. This is undisputed that the applicant herein did not apply for fresh arbitration before the arbitrator at Singapore. However, this application has been filed before this Court under Section 11 (6) of the Act.

( 10 ) DR. SINGHVI, learned senior counsel for the applicant, would submit that the agreement is governed by Indian Law and, therefore, the law in India is applicable and thus, this court can appoint Arbitrator in exercise of power under section 11 (6) of the Act. Per contra Mr. Kailash Vasdev, learned senior counsel for the respondents, would content that this application under Section 11 (6) is not maintainable inasmuch as the parties have referred to the Arbitrator Mr. Samuel J. Marshall in Singapore. The Award was passed by mr. Marshall at Singapore and the Award was set aside by the high Court of Singapore with liberty to apply for fresh arbitration and, therefore, the appropriate Court to apply is the Court at Singapore and this application is misconceived.

( 11 ) THE facts are not disputed that the parties by a mutual agreement referred the dispute to Mr. Samuel J. Marshall. Mr. Samuel J. Marshall proceeded with the arbitration and passed the Award on 20. 6. 2005, which was set aside by the High Court of Singapore on 31. 7. 2006.

( 12 ) SECTION 2 (1) (e) o