Under sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996, the Chief Justice or the person designated by him has the power to appoint arbitrators himself and cannot merely order the appointing authority to act in terms of the agreed procedure and to appoint the arbitrators.

Dr. B.P. Saraf, J. - This is a petition under sub-section (6) Section 11 of the Arbitration and Conciliation Act, 1996, ("Act") for appointment of arbitrators to adjudicate the disputes and differences between the parties arising out of contract agreement dated 10th May, 1991 for construction of major bridges.

2. The material facts, briefly stated, are as follows:

Under contract dated 10th May, 1991 between the petitioner company and the respondent Konkan Railway Corporation Limited, the petitioner company was to undertake construction of the railway bridges set out therein. The case of the petitioners is that due to various circumstances, for which the respondent Corporation was solely responsible, there was delay in execution of the work. The further case of the petitioners is that several items of extra work were also carried out by the petitioners under instructions of the respondents. The petitioners claimed a sum of Rs. 38,17,795/- on that account. This claim having not been settled and disputes and differences having arisen between the parties on that account, the petitioners, by their letter dated 19th February, 1996, submitted their claim to the Chairman & Managing Director of the respondent Corporation in accordance with Clause 62 of the contract dated 10th May, 1991 and requested him to take decision on those claims/disputes. No decision having been given by the Chairman & Managing Director of the respondent Corporation, the petitioners by their letter dated 17th August, 1996, informed the Chairman & Managing Director of the respondent Corporation that the disputes and differences arising between the parties were required to be referred for arbitration as per Clause 63(1) of the general conditions of the contract. The petitioners also requested the Chairman and Managing Director of the respondent Corporation, in accordance with sub-clause 63(3)(b) of the general terms and conditions of contract, to sent a panel of names of independent persons of good standing within a reasonable time to enable them to choose an arbitrator. On the failure of the Chairman & Managing Director to forward the panel of names as required by Clause 63.3(b) of the general conditions of contract, the petitioners have filed this petition under sub-section (6) of Section 11 of the Act for appointment of arbitrators to decide the disputes and differences arising between them.

3. Mr. A.S. Rajadhyaksha, learned Counsel for the petitioners, submits that the respondents having failed to send the panel of names of arbitrators as contemplated by Clause 63.3(b) of the general conditions of contract, I should appoint two independent and impartial arbitrators to decide the disputes and differences between the parties in exercise of the powers under sub-section (6) read with sub-section (8) of Section 11 of the Act. There is no dispute in this case about the arbitration agreement between the parties, existence of disputes and differences and the failure of the appointing authority of appoint the arbitrators as required under the procedure agreed upon by the parties. Situated thus, Ms. Bhagalia, learned Counsel for the respondents, stated that the Chairman and Managing Director of the respondent Corporation was now prepared to appoint the arbitrators under the procedure set out in Clause 63.3(b) of the general terms and conditions of contract. In the circumstances, it was submitted, that in exercise of the power under sub-section (6) of Section 11 of the Act, the Chairman and the Managing Director of the respondent Corporation, who is the appointing authority under the agreed procedure, should be directed to act under that procedure. According to her, under sub-section (6) of Section 11 of the Act, the Chief Justice or the person designated by him cannot make he appointment of arbitrators himself. He can only direct the appointing authority who failed to act, to act under the agreed procedure. Reliance is placed in support of this submission on th