IMPORTANT POINT
A party that frustrates arbitration forfeits its right to appoint an arbitrator, and written commitments to arbitration must be honored unless revoked.

JUDGMENT :

Somasekhar Sundaresan, J.

1. This Application has been filed by the Original Respondent, asking for a review of an order passed by me under Section 11(6) of the Arbitration and Conciliation Act, 1996 (“the Act”) dated June 20, 2024, appointing a sole arbitrator, on the basis of the Original Respondent’s own stance, demonstrated when the Original Applicant invoked arbitration in accordance with the admitted arbitration agreement between the parties.

Background and Context:

2. The flow of relevant events and the conduct of the Original Respondent calls for an iteration in the context of this Application – the same is set out below:-

a. On May 25, 2022, the Original Applicant sought to invoke arbitration and proposed the name of an arbitrator. The Original Applicant called upon the Original Respondent to accept the identity of the arbitrator or to nominate the second arbitrator in terms of the arbitration agreement;

b. The Original Respondent chose to reply only on December 19, 2022 (seven months later). The Original Respondent did not deny the existence of the arbitration agreement, but refused to either accept the arbitrator proposed, or to nominate an arbitrator to enable a three-member arbitral tribunal to be constituted;

c. Instead, the Original Respondent made it clear that it had no intent of going into a three-member arbitration. The Original Respondent also asserted that a three-member arbitral tribunal would be “time-wise and cost-wise, mind-boggling”. The Original Respondent expressed its willingness in writing that it would agree to a sole arbitrator so long as such arbitrator was appointed either by mutual consent, or by the Court. The Original Respondent also proposed a meeting to discuss an amicable resolution;

d. On January 2, 2023, the Original Applicant’s advocates wrote to the advocate for the Original Respondent calling for a meeting on January 9, 2023. According to the Original Respondent, the very fact that the Original Applicant chose the option of holding a meeting, would mean that the other option proposed by the Original Respondent, namely, of going into arbitration by a sole arbitrator appointed by mutual consent or by court, stood rejected and was not accepted or agreed upon by the Original Applicant;

e. On February 27, 2023, the Original Respondent filed an application, namely, Comm. Arbitration Application (L) No. 6429 of 2023 in this Court seeking the appointment of an arbitrator under Section 11(6) of the Act (“Original Application”);

f. On April 26, 2023, a Learned Single Judge observed that an arguable case had been made out for grant of relief by way of appointment of an arbitral tribunal, and called for the Original Respondent to be served with the Original Application to hear its say. The Learned Single Judge permitted private service, backed by a service affidavit with tangible evidence of service;

g. The Original Applicant demonstrated service on the Original Respondent, not only at the Original Respondent’s known address in Gomati Nagar, Lucknow, Uttar Pradesh (on July 3, 2023) but also at its known address in Mumbai (on July 1, 2023);

h. The matter was listed on June 26, 2023, July 11, 2023, August 3, 2023, before it came to be listed before me on June 20, 2024. It was apparent from the record that the Original Respondent chose not to enter appearance throughout this journey of the proceedings, including when the matter was listed on June 20, 2024 before me. On that date, going by the material on record, I passed an order appointing a Learned Sole Arbitrator; and

i. Now, by this Application, the Original Respondent has sought to argue that the appointment of the Learned Sole Arbitrator is contrary to the arbitration agreement, and it matters not that the promise to participate in arbitration by a sole arbitrator, provided the arbitrator was appointed by consent or by the court, was held out in writing.

3. By the time the matter was listed before me on June 20, 2024, two years and one month ha