JUDGMENT :

1. Feeling aggrieved and dissatisfied with the impugned orders passed by the High Court of Judicature for Rajasthan at Jaipur allowing the applications under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) and appointing an Arbitrator, Jaipur Zila Dugdh Utpadak Sahkari Sangh Ltd, Jaipur (hereinafter referred to as Sahkari Sangh) and others have preferred the present Special Leave Petitions.

2. For the sake of convenience, the facts in SLP (C) No.13520 of 2021 are narrated and SLP (C) No.13520 of 2021 be treated as a lead matter.

3. On 31.03.2015, the respondent herein and the Sahkari Sangh entered into Distributorship Agreement for the distribution of milk and butter milk in certain zones in Jaipur, which was for a period of two years. The dispute arose between the parties. Clause 13 of the distributorship agreement provided for resolution of disputes. Clause 13 contains an arbitration clause and it provides that all disputes and differences arising out of or in any way touching or concerning the agreement, whatsoever shall be referred to the sole Arbitrator, the Chairman, Jaipur Zila Dugdh Utpadak Sahkari Sangh Ltd. and his decision shall be final and binding for the parties. On 18.08.2018, the respondent made representation pointing out his grievance/dispute. Vide letter dated 22.08.2018, the respondent herein – original applicant was advised to raise dispute before the Sole Arbitrator/Chairman. That on 19.10.2019, the respondent firm/original applicant approached the Sole Arbitrator as per Clause 13 of the Agreement dated 31.03.2015 i.e. the Chairman, Jaipur Zila Dugdh Utpadak Sahkari Sangh Ltd. for settlement of a commercial dispute between the parties. That during the pendency of the arbitration proceedings before the Chairman – Sole Arbitrator, the respondent herein – firm approached the High Court for appointment of an arbitrator in exercise of powers under Section 11 of the Act and invoking the arbitration contained in clause 13 of the Agreement dated 31.03.2015. The said application was opposed by the petitioners herein. It was submitted that once the respondent – firm approached the Chairman – Sole Arbitrator for resolving the dispute between the parties invoking Clause 13 of the Agreement dated 31.03.2015 and having participated in the arbitration proceedings thereafter it is not open for it to approach the High Court to appoint an arbitrator under Section 11 of the Act. It was also submitted on behalf of the petitioners that the Agreement dated 31.03.2015 was prior to the amendment of Section 12/insertion of Section 12 (5) of the Act and the contract was entered into between the parties before insertion of Sub-section (5) of Section 12 by amendment of Act, 2015 read with Seventh Schedule to the Act, Sub-section (5) of Section 12 read with Seventh Schedule to the Act shall not be applicable and the Chairman continues to be the sole arbitrator as per Clause 13. That thereafter by the impugned order and considering the Sub-section (5) of Section 12 read with Seventh Schedule to the Act, the High Court has allowed the said application and has appointed the former District and Sessions Judge to act as an arbitrator. Feeling aggrieved and dissatisfied with the impugned order passed by the High Court appointing a fresh Arbitrator in exercise of powers under Section 11 of the Arbitration Act, Sahkari Sangh has preferred the present petitions.

4. Shri Gunjan Pathak, Learned Counsel appearing on behalf of the petitioners has vehemently submitted that the High Court has materially erred in appointing the arbitrator other than the arbitrator mentioned in Clause 13 of the Agreement dated 31.03.2015.

4.1 It is submitted that first of all Sub-section (5) of Section 12 read with Seventh Schedule to the Act shall not be applicable to the facts of the case on hand more particularly when the agreement between the parties was prior to insertion of Sub-section (5) of Section 12 read w