The Court:- This is an application under Section 11(6) of the Arbitration and Conciliation Act, hereafter referred to as the "1996 Act" for appointment of an Arbitrator in place of the erstwhile Arbitrator, a retired Judge.

The short question involved in this application is, whether, upon the death, resignation or termination of mandate of an Arbitrator appointed by the Chief Justice under Section 11 Sub-section 6 of the 1996 Act , the substitute Arbitrator is to be appointed by the Chief Justice and/or his designate or in accordance with the arbitration agreement.

Disputes appear to have arisen in connection with a contract which, inter alia, contained an arbitration clause which is set out herein below for convenience:

"ARBITRATION Except where otherwise provided in the contract all question and disputes relating to the meaning of specifications, designs, drawings and instructions herein contained and as to the quality of the workmanship or materials used on the work or as to any other question claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment therefore shall be referred to the sole arbitration of a person appointed by the DVC who may or may not be a DVC Officer. Such appointment shall not be objected on the ground that the arbitrator so appointed is a DVC Official or that he had to deal with matters to which the agreement rules and in the course of his duties as DVC official he had expressed views on all or any of the matter in disputes or difference. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the contract." In terms of the arbitration agreement, disputes were to be referred to an arbitrator appointed by the respondent who might or might not be an officer of the respondent. The petitioner apparently sought reference of the disputes to arbitration. No action was, however, taken by the respondent.

In the circumstances, the petitioner made a request to the Honble Chief Justice and/or his designate for appointment of an 3 Arbitrator by filing an application being AP No.144 of 2006, under Section 11(6) of the 1996 Act.

In this Court, a request to the Chief Justice under Section 11 Sub-section 6 of the 1996 Act, for appointment of an arbitrator, is made by way of an application, in the same manner as other applications to Court, and is considered by the Single Judge having determination. If the application succeeds, the Single Judge refers the application to the Honble Chief Justice and/or His designate for naming the Arbitrator. After the said application under the 1996 Act, being A.P.No.144 of 2006, was filed in this Court, the respondent appointed an Arbitrator. However, by an order dated November 23, 2007 this Court ( Pinaki Chandra Ghose, J ) allowed the said application, being A.P.No.144 of 2006, inter alia, holding that it was settled law that once an application was filed in Court for appointment of an Arbitrator by the Chief Justice and/or His designate, the respondent lost its right to appoint an Arbitrator in accordance with the agreement.

The Honble Chief Justice and/or His designate named a retired Judge of this Court, Shri Sohan Lal Saraf, as Arbitrator. The learned Arbitrator entered into reference. While the reference was in progress the respondent brought out an application being AP No.557 of 2008, praying for termination of the mandate of the learned Arbitrator on the ground of his ill health and consequential inability to properly perform his function as arbitrator.

After the application being A.P.No.557 of 2008 was entertained by this Court, the learned Arbitrator, through Counsel, submitted that he did not wish to continue as Arbitrator in view of t