The appointment of the arbitrator must be in accordance with the arbitration agreement and must satisfy the provisions of the arbitration act.

JUDGMENT

Prakash Shrivastava, CJ. - This application under Section 11(6) of the arbitration and Conciliation act, 1996 for appointment of arbitrator to resolve the dispute between the parties.

2. It is undisputed that the agreement dated 26th June, 2015 was executed between the parties which contain the following arbitration clause:

'33. any dispute arising out of or in connection with this agreement including matters relating to the rights and obligations of the parties arising out of or in connection with this agreement or the breach or termination of it, shall be first discussed in good faith among representatives of each party who are of appropriate authority within a period of 20 days from the date of notice by one party to another. If the dispute is not resolved by discussion within 20 days (or such longer period as may be mutually agreed), then any party may refer such matter to be finally resolved by arbitration conducted by a panel of three arbitrators appointed as per the provisions of the arbitration and Conciliation act, 1996. The appointment of all the three arbitrators shall be completed within 45 days of first reference of dispute by any party. The place of arbitration shall be Kolkata. The place of jurisdiction shall be at Kolkata, West Bengal.'

3. The dispute had arisen between the parties, therefore, applicant had given the notice dated 30th May, 2021 under Section 21 of the arbitration and Conciliation act, 1996 (for short, 'arbitration act') invoking the arbitration clause and proposing the name of Hon'ble Justice Subhro Kamal Mukherjee (Retd.), Former Chief Justice of the Karnataka High Court as its nominee arbitrator and requesting the respondent to nominate its arbitrator in terms of Clause 33 of the agreement. The record further reflects that earlier, some disputes had arisen between the parties, hence, the applicant had filed WP 5306(W) of 2018 which was disposed of by the order dated 28th November, 2018 directing the parties to take recourse to the arbitration clause. The respondent had sent the communication dated 13th March, 2019 purported to be in pursuance to the order of the High Court nominating a panel of four retired Railway Officers and requesting the applicant to suggest two names out of the said panel as its nominee. The applicant vide reply dated 05th april, 2019 had expressed its disagreement with the panel and rejected the proposal. The respondent even after the refusal by the applicant had proceeded further and on 26th april, 2019 appointed three arbitrators, i.e., one Presiding arbitrator and two Co-arbitrators out of the panel which was already rejected by the applicant. The respondent had requested the three arbitrators to proceed with the arbitration proceedings. Out of the three nominated arbitrators by the respondent, two namely, Shri Shivaji Rakshit and Shri K. Gangopadhyay, had expressed their inability and had resigned vide communication dated 14th May, 2019 and 15th May, 2019, respectively. In spite of their resignation, the respondent had issued the communication dated 13th June, 2019 to the same panel of arbitrators to start the arbitration proceedings and publish the award at the earliest. Thereafter, on 17th July, 2019, the respondent substituted two arbitrators from the panel and appointed new Presiding arbitrator and one new Co-arbitrator vide communication dated 17th July, 2019. The applicant had sent the reply dated 31st July, 2019 taking the stand that the General Manager of the respondent had no authority to appoint the arbitrator and such appointment is contrary to the order of the High Court as also the arbitration Clause 33 of the agreement. Thereafter, applicant has approached this Court by way of present application under Section 11 of the arbitration act.

4. Submission of learned Counsel for the applicant is that the arbitrator is required to be appointed in terms of Clause 33 of the arbitration agreement and that a panel of arbitrators appointed by the respondent d