Judgment :-

We have heard Mr. Jagdeep Kishore, learned counsel for the petitioner, and Mr. Chetan Sharma, learned senior counsel for the respondents.

2. Leave granted.

3. It is not necessary to refer to the facts of the case. Suffice it to say that the arbitration clause in the agreement between the parties provides that all disputes and differences between them shall be referred by any aggrieved party to the contract to the sole arbitration of ED(NR) of the respondent No. 1 - Indian Oil Corporation (for short, 'Corporation'). Arbitration clause further provides that, if such ED(NR) is unable or unwilling to act as the sole arbitrator, the matter shall be referred to the sole arbitration of some other person designated by such ED(NR) in his place who is willing to act as sole arbitrator. The arbitration clause also provides that no person other than ED(NR) or the person designated by the ED(NR) should act as arbitrator.

4. It is admitted case that when the disputes arose between the parties, the present appellant - M/s Newton Engineering and Chemicals Limited (for short, 'Contractor') wrote to the Corporation for appointment of ED(NR) as sole arbitrator as per the arbitration clause. The Corporation, vide communication dated April 28, 2004, informed the Contractor that due to internal reorganisation in the Corporation, the office of ED(NR) has ceased to exist and since the intention of the parties was to get their disputes settled through arbitration, the Corporation offered to the Contractor the substitution of the named arbitrator, i.e., ED(NR), with Director (Marketing) in the existing arbitration clause. The Corporation further informed the Contractor that, if it agrees to the same, it may send written confirmation giving its consent to the substitution of the named arbitrator. The said communication further stated that on receiving the confirmation, the case for appointment of arbitrator would be put up before the new agreed arbitrator between the parties, i.e., Director (Marketing).

5. To the above communication, the Contractor informed the Corporation, vide communication dated May 19, 2004, that it would like to have the arbitration as per the provisions contained in the Arbitration and Conciliation Act, 1996 (for short, 1996 Act') whereby each of the parties would be appointing one arbitrator each. The Contractor stated that it would be appointing its arbitrator soon after confirmation from the Corporation.

6. It appears that the Corporation did not agree to that and ultimately appointed Director (Marketing) as arbitrator.

7. The Contractor aggrieved thereby made an application under Section 11(6)(c) read with Sections 13 and 15 of the 1996 Act before the Delhi High Court for appointment of a retired Judge of that Court as a sole arbitrator to adjudicate upon the claims of the Contractor raised in the petition. It was also prayed that the arbitration proceedings be stayed before the arbitrator appointed by the Corporation.

8. The single Judge of the High Court, by the impugned order dated November 8, 2006, dismissed the petition filed by the Contractor and directed it to appear before the arbitral tribunal. While doing so, the single Judge observed that the challenge to the appointment of the arbitrator may be raised by the Contractor before the arbitral tribunal itself.

9. Having regard to the express, clear and unequivocal arbitration clause between the parties that the disputes between them shall be referred to the sole arbitration of the ED(NR) of the Corporation and, if ED(NR) was unable or unwilling to act as the sole arbitrator, the matter shall be referred to the person designated by such ED(NR) in his place who was willing to act as sole arbitrator and, if none of them is able to act as an arbitrator, no other person should act as arbitrator, the appointment of Director (Marketing) or his nominee as a sole arbitrator by the Corporation cannot be sustained. If the office of ED(NR) ceased to exist in the Corporation and