IMPORTANT POINT
Appointment of arbitrator by invoking arbitration agreement cannot be challenged under section 11(6) of the 1996 Act.

Judgment :-

AltamasKabir, CJI.

1. An application under Section 11(4) read with Section 11(10) of the Arbitration and Conciliation Act, 1996, hereinafter referred to as "the 1996 Act", has given rise to an important question of law relating to the scope and ambit of the powers of the Chief Justice under Section 11(6) of the said Act. In view of the importance of the question, which has arisen, the matter which was being heard by the delegatee of the Chief Justice, has been referred to a larger Bench for determination thereof.

2. M/s. Antrix Corporation Limited, the Petitioner herein, a Government Company incorporated under the Companies Act, 1956, and engaged in the marketing and sale of products and services of the Indian Space Research Organization (ISRO), entered into an Agreement with the Respondent, Devas Multimedia P. Ltd., hereinafter referred to as "Devas" on 28th January, 2005, for the lease of Space Segment Capacity on ISRO/ Antrix S-Band Spacecraft. Article 19 of the Agreement empowered the Petitioner to terminate the Agreement in certain contingencies. It also provided that the Agreement and the rights and responsibilities of the parties thereunder would be subject to and construed in accordance with the laws of India. In other words, the domestic law would be the governing law of the Agreement.

3. Article 20 of the Agreement deals specially with arbitration and provides that in the event any dispute or difference arises between the parties as to any clause or provision of the Agreement, or as to the interpretation thereof, or as to any account or valuation, or as to rights and liabilities, acts, omissions of any party, such disputes would be referred to the senior management of both the parties to resolve the same within 3 weeks, failing which the matter would be referred to an Arbitral Tribunal comprising of three Arbitrators. It was provided that the seat of arbitration would be New Delhi in India. It was also provided that the arbitration proceedings would be held in accordance with the rules and procedures of the International Chamber of Commerce (ICC) or UNCITRAL.

4. On 25th February, 2011, the Petitioner Company terminated the Agreement with immediate effect in terms of Article 7(c) read with Article 11(b) of the Agreement in keeping with the directives of the Government, which it was bound to follow under Article 103 of its Articles of Association. By its letter dated 28th February, 2011, the Respondent objected to the termination. On 15th April, 2011, the Petitioner Company sent to the Respondent Company a cheque for Rs. 58.37 crores refunding the Upfront Capacity Reservation Fee received from Devas. The said cheque was, however, returned by Devas on 18th April, 2011, insisting that the Agreement was still subsisting.

5. In keeping with the provisions of Article 20 of the Arbitration Agreement, the Petitioner wrote to the Respondent Company on 15th June, 2011, nominating its senior management to discuss the matter and to try and resolve the dispute between the parties. However, without exhausting the mediation process, as contemplated under Article 20(a) of the Agreement, Devas unilaterally and without prior notice to the Petitioner, addressed a Request for Arbitration to the ICC International Court of Arbitration on 29th June, 2011, seeking resolution of the dispute arising under the Agreement. Through the unilateral Request for Arbitration, Devas sought the constitution of an Arbitral Tribunal in accordance with the ICC Rules of Arbitration, hereinafter referred to as "the ICC Rules", and nominated one Mr. V.V. Veedar, Queen's Counsel, as its nominee Arbitrator, in accordance with the ICC Rules.

6. According to the Petitioner, it is only on 5th July, 2011, that it came to learn that Devas had approached the ICC and had nominated Mr. V.V. Veedar, as its nominee Arbitrator, upon receipt of a copy of the Respondent's Request for Arbitration forwarded by the ICC. By the said letter, the Petitioner was also inv