This application is filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996 seeking removal of the sole arbitrator and appoint a former judge of this Court to assume the office of Arbitrator for resolution of the disputes between the applicant and the respondent arising out of the Agreement dated 23.11.2005.

I have heard the learned counsel for both the parties.

The applicant herein was awarded civil works of 765 KV Switch Yard for ALSTOM – AREVA, NTPC, SITAT by the respondent company vide work order dated 23.11.2005. When certain disputes arose between the parties with regard to the execution of the works awarded, the applicant by letter dated 1.3.2010 called upon the respondent to settle its disputes and pay a sum of Rs.8,9,03,406/- together with interest at 18% failing which to appoint an arbitrator as agreed between the parties. The respondent company by letter dated 20.03.2009 agreed for appointment of an arbitrator and accordingly the Chief Operating Officer – PMC by name R. Venkata Raghavan was appointed as the sole arbitrator. The arbitrator so appointed after notice to both the parties held a preliminary meeting on 19.05.2010 and the schedule of arbitration proceedings was fixed. The applicant filed its claim statement within the stipulated time. However the respondent did not file its reply/counter-claims and sought extension of time. The applicant by letter dated 2.12.2010 while opposing grant of extension of time, alleged that the arbitrator was biased towards the respondent company. A doubt was also expressed about the independency and impartiality of the arbitrator on the ground that be being the subordinate of the respondent company, is directly involved with the claims under the dispute. The arbitrator by letter dated 16.12.2010 while informing the applicant that his appointment was made strictly as per the arbitration clause and that he was discharging his duties as per law, directed the respondent to submit its counter-statement on or before 20.01.2011 with a copy to the applicant.

At that stage, the present application came to be filed seeking removal of the sole arbitrator and appointment of a new arbitrator under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act’) contending that the letter dated 16.12.2010 addressed by the arbitrator itself shows the biased attitude of the arbitrator.

In response to the notice ordered by this Court, appearance has been entered on behalf of the respondent. Though no counter-affidavit is filed, the learned counsel for the respondent at the outset raised a preliminary objection as to the maintainability of the application. While relying upon ACE PIPELINE CONTRACTS (P) LTD. v. BHARAT PETROLEUM CORPN LIMITED ((2007) 5 SCC 304), the learned counsel contended that the only remedy available to the applicant is to prefer an appeal under Section 34 of the Act after an award is passed.

I have also heard the learned counsel for the applicant, who, while relying upon a Division Bench Judgement of this Court in SAI PRIYA CONSTRUCTION COMPANY v. K. ANANTHA KUMAR (2006 (2) ALT 70 (D.B.)), vehemently contended that the application is maintainable under Section 11 (6) of the Arbitration and Conciliation Act, 1996.

It is not disputed before this Court that as per the arbitration clause contained in the special conditions of contract, subject to which the Work Order was issued to the applicant, the officer of the respondent company as nominated by its Managing Director shall be the sole arbitrator. The said clause reads as under:

“Clause 28. DISPUTES: In the event of any dispute arising out of this Sub-Contract, the parties hereto agree that the matter shall be referred to the Sole Arbitrator who is the officer of M/s.IVRCL Infrastructures & Projects Limited (other than concerned with this Sub-Contract), nominated by Managing Director of IVRCL. The award of the Arbitrator so nominated shall be final conclusive and binding on all