JUDGMENT :

Shekhar B. Saraf, J.

1. The petitioner, East Indian Minerals Limited, has filed the instant application [being A.P. No. 677 of 2022] praying for appointment of a presiding arbitrator in the position of the erstwhile arbitrator, Late Justice R.N. Ray, who expired during the subsistence of the ongoing arbitration proceedings. Consequent to the failure of the arbitrators of the arbitral tribunal to appoint a presiding arbitrator, the petitioner prays for termination of the mandate of the expired arbitrator and appointment of a presiding arbitrator under Section 14 and 15 read with Section 11 of the Arbitration and Conciliation Act, 1996 [hereinafter referred to as ‘the Act’].

2. The relevant facts of the matter are as follows:

a) The respondent no. 1 and 2 executed an MOU for formation of Special Purpose Vehicle to carry out mining operations at Thakurani and Roida mines, Barbil and other freehold areas of Orissa. Thereafter, the petitioner being a Joint-Venture Company and the respondent no. 1, being a company holding iron mines under lease from the Government of Orissa, entered into an agreement on October 4, 1993 for a period of 20 years for setting up crushing and processing plant and for sale of iron ore.

b) However, the respondent no. 1 was allegedly unable to materialize the object of the Joint-Venture Agreement. As a resultant of the disputes having arisen, the petitioner invoked the arbitration clause by letter dated December 15, 2006 wherein the petitioner nominated Mr. Ahin Choudhury, Senior Advocate as its nominee arbitrator. The respondent nominated Mr. R.N. Das, Senior Advocate as arbitrator and both the arbitrators appointed Dr. Tapan Banerjee as the presiding arbitrator. The proceedings commenced but could not be completed on the death of the presiding arbitrator and a reconstituted arbitral tribunal was appointed with Mr. R.N. Ray being the presiding arbitrator who also expired after the 32nd sitting was concluded.

c) During the pendency of Sec. 16 application before the arbitral tribunal, criminal proceedings were commenced against the petitioner which got completed on December 18, 2021. The last arbitration sitting was conducted on February 4, 2016 after which there have been no developments in the arbitration proceeding.

d) By a letter dated May 23, 2022, the petitioner requested the two arbitrators to appoint a presiding arbitrator, which the arbitrators could not comply with. Hence this application has been filed before the Hon’ble Court for termination of the mandate of the late presiding arbitrator and a fit and proper person to be appointed in his position.

Rival Submissions:

3. Mr. Jishnu Chowdhury, counsel appearing on behalf of the petitioner made the following averments:

a) The respondent no. 1 was holding 26% shareholding in the petitioner company. The iron ore mining business had become profitable and therefore the respondent no. 1 attempted to bring the business to a standstill by not supplying transit passes which affected the employees of the petitioner.

b) The Learned Counsel in his submitted document enclosing brief sequence of events claimed that an Equity Agreement was executed in June 1, 1998. It is further averred that the business activities commenced from March, 1999 and therefore the agreement is to remain valid and continue till 2019.

c) After the commencement of the arbitral proceedings, the petitioner being the claimant had prayed for an award of Rs. 3,02,12,893/-amongst the other claims in its statement of claim. Unfortunately, the presiding arbitrator died, subsequent to which, Justice R.N. Ray was appointed as the presiding arbitrator.

d) During the pendency of the first application under Sec. 16 of the Act before the reconstituted tribunal, an affidavit was filed by respondent no. 1 contending that criminal proceedings had been commenced against the petitioner for which there must not be any progress in the arbitration and thereafter the petitioner waited until its name was finally