This C.M.P is filed under Section 11(6) r/w Section 15(2) of the Arbitration and Conciliation Act, 1996, praying to appoint an arbitrator in place of Sri. R.N. Narasimha Murthy in the Arbitration dispute between Petitioner and Respondent concerning property bearing corporation No.4/1, Bannerghatta Road, Ward No.63, Bangalore, pending adjudication in the interest of justice and equity).

A short question that arises for consideration in this petition is

“Whether the petition filed under Section 11(6) read with Section 15(2) of the Arbitration and Conciliation Act, 1996 (hereinafter called ‘the Act’) for appointment of an arbitrator in the vacancy that arose due to withdrawal of Sri. R.N. Narasimha Murthy, senior advocate from the office of the Arbitrator is maintainable in the absence of non-compliance of sub-section 4(a) of Section 11 of the Act?”

Answer to the above point is in the negative for the following reasons:

2. The brief facts of the case leading to the filing of the petition may be stated as under:

The respondent herein is the claimant before the Arbitral Tribunal which is comprising of Sri. Justice K. Shivashankar Bhat, retired High Court Judge, as a Presiding Officer and M/s. R.N. Narasimha Murthy and Sri. B.V. Acharya, senior advocates as arbitrators to adjudicate the dispute between the parties.

On 09.07.2008, in the 17th sitting of the Arbitral Tribunal Sri. R.N. Narasimha Murthy, arbitrator on behalf of the claimant, indicated that he wanted to rescue himself from the case. He sent a letter dated 12.07.2008 to the Presiding Officer as well as the counsels appearing for the parties expressing his desire to withdraw from the officer of the arbitrator. In view of the withdrawal from the office of the arbitrator by Sri. R.N. Narasimha Murthy, remaining arbitrators decided to continue the proceedings after the Arbitral Tribunal is reconstituted and adjourned the proceedings.

The present petition was filed on 18.09.2008 seeking appointment of an arbitrator in place of Sri. R.N. Narasimha Murthy contending that the respondent failed to nominate its arbitrator in place of Sri. R.N. Narasimha Murthy.

On 22.09.2008, emergent notice was issued regarding admission. The respondent entered appearance through its counsel M/s. Kamal and Bhanu, Advocates. They filed vakalath on 13.10.2008 in the office.

3. Learned senior counsel Sri. Jayavittai Rao Kolar appearing for the petitioner submits that the cause of action for the proceedings arose on 09.07.2008 when Sri. R.N. Narasimha Murthy expressed his willingness not to continue as arbitrator on behalf of the respondent/claimant and on 12.07.2008, when Sri. R.N. Narasimha Murthy addressed a letter to the Presiding Officer and marking a copy to the respective counsels for the parties. But the respondent/claimant did not take steps to appoint Arbitrator in place of Sri. R.N. Narasimha Murthy and therefore, the present petition was filed for appointment of an arbitrator. He further submits that the nomination made by the respondent after lapse of 30 days from the knowledge as to retirement is not valid and the same shall be rejected.

4. On the other hand, learned counsel for the respondent/claimant submits that the petitioner has not issued notice calling upon the respondent/claimant to fill the vacancy of the arbitrator that arose on 12.07.2008 and therefore, the petition is liable to be rejected. He further submits that in pursuance of the request made, the respondent/claimant’s advocate Sri. Chaitanya A. Mehta, by his letter dated 20.09.2008 consented to be arbitrator on behalf of the respondent/claimant in the dispute. Thereafter, the claimant filed a memo dated 22.09.2008 before the Arbitral Tribunal appointing Sri. Chaitanya Mehta, Solicitor, India, United Kingdom and Wales of Dhruve Liladhar and Company, 13 “A B”, Ismail Buidling, 381, D.N. Road, Flora Fountain, Mumbai-400 001, as its arbitrator in place of Sri. R.N. Narasimha Murthy and on receipt of the memo on 26