JUDGMENT :

ANANT RAMANATH HEGDE, J.

1. This Commercial Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (Hereinafter referred to as ‘Act 1996’ for short) read with Section 13(1)(A) of the Commercial Courts Act, 2015, is arising from the judgment in Com. A.S. No. 129/2019 on the file of LXXXV Additional City Civil Court, Bengaluru. In terms of the impugned judgment dated 09.12.2021, the learned Additional City Civil Judge has allowed the Section 34 application under the Act, 1996, consequently, the award dated 20.05.2019, passed by the learned arbitrator is set aside on the ground that the learned arbitrator lacked the jurisdiction to pass the award.

2. The following questions emerge in the set of facts pleaded in this appeal:

(i) Whether the arbitrator could have been appointed by the authority named in the arbitration agreement, when the application filed under Section 11(6) of the Act, to appoint an arbitrator was pending consideration before the High Court?

(ii) If such an appointment is impermissible, whether participation of the claimant in the arbitral proceedings before the arbitrator, who is appointed when Section 11(6) application was pending before the court, amounts to waiver of objection relating to the jurisdiction of the arbitrator?

(iii) Whether the dismissal of the application under Section 11(6) of the Act, 1996, as having become infructuous on the premise that the arbitrator has already passed an award, will preclude the party from questioning the jurisdiction of the arbitrator in Section 34 proceeding?

3. Brief facts which crop up the aforementioned questions and the facts necessary for adjudication of the case are:

(i) The respondent in this appeal who is the claimant before the arbitrator, (hereinafter referred to as claimant) was the successful bidder in the auction conducted by the present appellant who is the respondent before the arbitrator (hereinafter referred as respondent) where the auction was held to sell iron ore.

(ii) The agreement between the parties provided for the resolution of the dispute amicably through mutual consultation and in the event of dispute or difference remaining unresolved, same shall be settled by arbitration by referring the claims to the sole arbitrator to be appointed by the Chairman, Central Empowered Committee (‘CEC’ short).

(iii) According to the claimant, the dispute arose relating to the quality of the ore and a request was made to refer the matter to arbitration. Thus on 25.09.2015, the claimant made a request to appoint an arbitrator. The Chairman of the CEC who is authorized under Clause No. 19, to appoint the arbitrator did not appoint the arbitrator even after lapse of a year.

(iv) On 15.9.2016, CMP 233/2016 is filed by the claimant invoking Section 11(6) of the Act, before the High Court, praying for appointment of an arbitrator.

(v) On 10.1.2017, the Chairman of the CEC appointed Justice Anil Kumar, a retired Judge of the Delhi High Court as the arbitrator.

(vi) On the next day i.e. on 11.1.2017, the arbitrator accepted the appointment. Then notice was sent by the arbitrator to the CEC as well as the claimant fixing the venue and date of appearance.

(vii) On 22.3.2017, within 15 days of being informed about the constitution of the Arbitral Tribunal, (as asserted by the claimant) the claimant requested the arbitrator not to proceed further with the arbitration proceeding on the premise that the CMP 233/2016 was pending consideration before the High Court.

(viii) The request letter sent by the claimant was treated as an application for the stay of further proceedings and notice on his request letter was issued to the CEC inviting objections to the said application.

(ix) After hearing both parties, vide order dated 22.4.2017 the application was rejected.

4. Thereafter, the parties participated in the arbitration proceeding. Parties adduced evidence before the arbitrator. The arbitrator, vide award dated 20.5.2019, rejected the claimant’s claim.

5. After the co