By this application filed under section 11(6) of the Arbitration & Conciliation Act, 1996 (for short “Arbitration Act”) the applicant seeks appointment of an arbitrator.

2. Some of the facts relevant for the purpose of deciding this application are as under:

(a) By a deed of partnership dated 15th January, 1979, the applicants along with respondent nos.4 and 5 and late Bhawabai Pamnani and late Jaiprakash Pamnani were carrying on business in partnership under the name and style of “M/s. Jeevan Development Corporation”. The terms of the said partnership deed was varied by another Deed of partnership dated 22.08.1979 and was further modified by partnership deed dated 1st June, 1980. It is the case of the applicants that the dispute arose between the parties and accordingly the applicants vide letter dated 29th August, 2003 dissolved partnership firm and called upon the other partners/respondents to render the accounts of the partnership, settle the shares of each of the partner and to pay the outgoings of the society in respect of the flats in their possession and appointed Mr. Shailesh Shah, Advocate, as sole arbitrator. It is the case of the applicants that the said partnership deeds recorded an arbitration agreement and more particularly in clause 17 thereof, which reads thus :

“17. Any dispute or differences in connection with the partnership shall be referred to the Sole Arbitration of one person mutually agreed upon and appointed by the partners hereto, all the parties hereto and the decision of the said Arbitrator shall be binding on all the parties hereto.”

(b) On 5th November, 2003 the applicants filed arbitration petition bearing No. 266 of 2003 before the Chief Justice for appointment of arbitrator under clause 11(6) of the Arbitration & Conciliation Act, 1996. By an order dated 20th February, 2004, designate of the Chief Justice appointed Mr. Shailesh Shah as sole arbitrator. The respondents opposed appointment of the learned arbitrator then appointed on the ground that his appointment was not made by consent of the respondents. In view of the said objections by the respondents, Mr. Shailesh Shah, conveyed that it would not be possible for him to accept his appointment as arbitrator unless specific consent was obtained from the concerned parties.

(c) The applicants accordingly filed Arbitration Application No. 251 of 2004 before the Chief Justice for appointment of the another arbitrator. By an order dated 20th January, 2006, Justice A.B. Palkar former Judge of this court (as his Lordship then was) was appointed as sole arbitrator. It is stated that two arbitration meetings were held by Mr. Justice A.B. Palkar former Judge of this court. On 21/5/2008 Justice A.B. Palkar expired. The respondents did not appear before this court when said arbitration application No. 251 of 2006 was heard though served.

(d) On 4th June, 2008, the applicants filed this application for appointment of another arbitrator in view of the demise of Mr. Justice A.B. Palkar (retd). The respondents have not disputed the existence of the arbitration agreement.

3. Mr. Govilkar, learned counsel for the respondent no. 5 has raised preliminary objection and also addressed on merits such as : (a) Under Rule 803E of the High Court Original Side Rules, the arbitration application under section 11(6) has to be placed on board for acceptance. Unless the application is accepted and notice is issued by the court to all the parties concerned, the matter cannot be heard finally. It is submitted that there is total non compliance of the Rule 803E read with clause 7 of the scheme framed by the Hon'ble Chief Justice under the provisions of the Arbitration & Conciliation Act, 1996.

(b) The application filed under section 11 by the applicant is hopelessly barred by law of limitation.

(c) There are serious allegations of fraud and misappropriation against applicants made by the respondent no. 5 in the sur-rejoinder filed by the respondent no. 5 and in view of such a