Refusal to extend arbitrator's mandate under Section 29A due to claimant's fault and abandonment terminates arbitral proceedings, barring fresh appointment under Section 11 by defaulting party.

JUDGMENT :

SANDEEP V. MARNE, J.

1) This Application, filed under Section 11 of the Arbitration and Conciliation Act, 1996 (Arbitration Act) for appointment of an arbitrator, raises an interesting issue as to whether an arbitrator can be appointed when the Court has expressly refused to extend the mandate of the earlier arbitrator by rejecting the Petition filed under Section 29A of the Arbitration Act. The Court is thus tasked upon to decide the issue as to whether refusal by the Court to extend the mandate under Section 29A of Arbitration Act would bring to an end the very arbitral proceedings making it impermissible to appoint another arbitrator to decide the same dispute.

2) Disputes and differences between the parties have arisen out of performance of Deed of Assignment of Development Rights dated 6 December 2010. Petitioners had filed Commercial Arbitration Petition No. 1310 of 2019 under Section 9 of the Arbitration Act in this Court seeking interim measures. In that Petition, this Court referred the parties to arbitration in view of arbitration agreement contained in clause 17 in the Deed of Assignment of Development Rights. By order dated 14 November 2019, this Court appointed a sole Arbitrator for adjudication of disputes and differences between the parties by converting Section 9 Petition into application under Section 17 of the Arbitration Act. The Arbitrator so appointed by order dated 14 November 2019 expressed inability to take up the reference and accordingly by order dated 13 January 2020, this Court substituted the Arbitrator. The learned sole Arbitrator passed order under Section 17 of the Arbitration Act on 31 August 2020. Nothing happened thereafter for a considerable period of time. Applicants thereafter filed Commercial Arbitration Petition No.221 of 2024 under Section 29A of the Arbitration Act seeking extension of mandate of the arbitrator. By order dated 18 October 2024, this Court refused to extend the mandate of the Arbitrator observing that the Applicants had abandoned the arbitration proceedings. Special Leave to Appeal (C) No. 29786 of 2024 preferred by the Applicants came to be dismissed by the Apex Court by order dated 14 February 2025.

3) Applicants have thereafter issued notice dated 10 July 2025 contending inter alia that the cause of action for arbitration continues and accordingly made demand for appointment of arbitrator for adjudication of the disputes. Respondent was called upon to either consent for the suggested Arbitrator or to suggest name of other nominee arbitrator. Since the Respondent did not consent for appointment of the arbitrator, the present Application is filed under Section 11(6) of the Arbitration Act for appointment of arbitrator.

4) Respondent has appeared in the Application and has opposed the same inter alia submitting that appointment of arbitrator is now impermissible in the light of termination of arbitration proceedings by this Court vide order dated 18 October 2024, which is upheld by the Apex Court.

5) Mr. Cama, the learned counsel appearing for the Petitioner has submitted that order dated 18 October 2024 passed by this Court merely refuses to extend the mandate of the arbitrator on account of lack of sufficient cause