When parties fail to act as per the arbitration clause in an agreement, the petitioner is entitled to approach the court for appointment of an arbitrator under Section 11(6A) of the Arbitration And Conciliation Act, 1996.

ORDER :

1. This Civil Miscellaneous Petition is filed under Sec. 11(6) of the Arbitration And Conciliation Act, 1996 (hereinafter referred as ‘the Act’ for brevity) for appointment of an arbitrator in terms of agreement dated 29.02.2020 vide Annexure-A entered into between the petitioner and respondent No. 1.

2. Learned counsel for the petitioner has brought to the notice of this Court that the agreement entered into between petitioner and respondent No. 1 dated 29.02.2020, wherein at Para No. 3 there is a provision for a arbitration clause and appointment of an arbitrator for resolving the dispute arising between the parties. It is the contention of learned counsel for petitioner that petitioner is a partnership firm engaged in the business of development of real estate, respondent No. 1 is the owner of property bearing CTS No. 9689 situated at Veerabhadra Nagar, Belagavi and respondent Nos. 2 to 4 are the wife and children of respondent No. 1. Petitioner had entered into an agreement with respondent No. 1 for development of property stated above into a multistoried building consisting of residential houses and commercial shops. The joint development agreement was executed on 29.01.2016, which is not in dispute. As the notice issued by learned counsel for petitioner for appointment of an arbitrator has been replied by way of reply notice which is placed before this Court through a counsel namely R.B. Deshpande, produced as Annexure-E. In which reply notice, respondents have admitted execution of joint development agreement dated 29.01.2016, but however has denied execution of agreement dated 29.02.2020.

3. Despite service of notice to the respondents, they have remained absent and there is no representation.

4. I have heard learned counsel for petitioner.

5. On perusal of the agreement dated 29.02.2020, there is a clause for resolution of dispute at Para No. 3 by way of appointment of an arbitrator. Exercising clause-III of the agreement dated 29.02.2020, petitioner has got issued a legal notice to the respondents vide Annexure-D for calling upon the respondents to consent for appointment of an arbitrator. Despite said legal notice issued on 18.05.2022, the respondents have not consented or suggested any name of the arbitrator for resolution of dispute though the respondents have replied to the legal notice vide reply dated 21.06.2022. In the said reply as stated earlier, respondents have denied the execution of the agreement dated 29.02.2020 which contains the mechanism for resolution of the dispute by way of appointment of an arbitrator.

6. Be that as it may, the agreement produced by the petitioner dated 29.02.2020 at Annexure-C very specifically states that parties are at liberty to appoint an arbitrator and in exercise of the same, petitioner has got issued legal notice which is not been consented for appointment of an arbitrator and neither any name is suggested by the respondents. Section 11 (6) of the Act reads as under:

“(6) Where, under an appointment procedure agreed upon by the parties:

(a) a party fails to act as required under that procedure.

(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure.

(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure [the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be] to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.”

7. Under Section 11(6A) of the Act, petitioner is entitled to approach this Court for appointment of an arbitrator as required under the procedure when the parties failed to act as per the Arbitration Clause provided in the agreement. As per th