Unilateral appointment of an arbitrator without the consent of both parties renders the arbitral proceedings without jurisdiction and the award null and void.

1. Learned counsel appearing for the petitioner states that the respondent has been served. None appeared for the respondent.

2. By this petition filed under section 34 of the Arbitration & Conciliation Act, 1996 (for short “the Arbitration Act”), the petitioner has impugned the arbitral award dated 31st March, 2008. Some of the relevant facts for the purpose of deciding this petition are as under :

3. The respondent was appointed by the petitioner by the franchise agreement dated 30th October, 2002 as franchisee for the period of two years on the terms and conditions recorded in the said agreement. It is the case of the petitioner that with effect from 21st July, 2007, the petitioner changed its old address to new address and accordingly filed Form No.18 with the Registrar of Companies.

4. The dispute arose between the parties. The respondent through its advocate issued a notice on 24th October, 2005 to the petitioner and suggested the name of three persons with a request to select one out of them to act as the sole arbitrator within 30 days from the date of the said notice.

5. The petitioner by its reply dated 10th October, 2005 informed the respondent that the petitioner was not agreeable to the names proposed by the respondent.

6. The respondent vide its advocate's letter dated 22nd December, 2005, suggested the name of Mr.Suresh Kamble as arbitrator and requested the petitioner to accept his name as a sole arbitrator. In the said letter, the respondent informed the petitioner that the respondent had separately informed the said Mr.Suresh Kamble about his selection as the sole arbitrator. In response to the said letter, the petitioner vide its letter dated 27th December, 2005, protested against the appointment of Mr.Suresh Kamble as the sole arbitrator and contended that his appointment was not binding upon the petitioner.

7. The petitioner thereafter filed Arbitration Application (No.70 of 2006) under section 11 of the Arbitration & Conciliation Act, 1996 inter-alia praying for an appointment of an arbitrator. The said arbitration application appeared before this Court on 6th October, 2006. This Court was of the opinion that since the respondent had already appointed an arbitrator, the remedy of the petitioner was not under section 11 of the Arbitration Act and it would be some where else.

8. It is the case of the petitioner that since the office of the petitioner was shifted to new address, the petitioner did not receive any notice from the said arbitrator illegally appointed by the respondent nor any papers and proceedings had been served upon the petitioner.

9. The petitioner came to know about the declaration of the impugned award only on 12th April, 2013 when a bailiff from the office of the Sheriff visited the premises of the petitioner for delivering the warrant of attachment of the property. The petitioner, without prejudice issued a cheque of Rs.10.00 lakhs and immediately filed an application before this Court inter-alia praying for staying of the execution proceedings. On 15th April, 2013, this Court granted ad-interim order and recorded the statement made by the respondent that the said cheque of Rs.10.00 lakhs issued by the petitioner would not be encashed. The petitioner also called upon the learned advocate representing the respondent to furnish copy of the papers and proceedings of the arbitration and also copy of the award. After getting copy of the award from the learned advocate representing the respondent, the petitioner filed this petition.

10. Learned counsel for the petitioner invited my attention to the correspondence exchanged between the parties and also other annexures to the petition. He also invited my attention to the arbitration clause recorded in clause 28(1) of the franchise agreement and submits that under the said clause, the power of appointing the arbitrator did not vest in the respondent exclusively. He submits that since the petitioner did not agree to the name suggested by th