( 1 ) THIS is a petition under Section 11 of the Arbitration and Conciliation Act, 1996, raising a significant question with regard to the scope and exercise of jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act, for short ).

( 2 ) THE appointment of the Arbitrator is sought by the petitioner under Section 11 of the Act on the ground that the respondent despite the invocation of the arbitration agreement, initially failed and neglected to appoint the Arbitrator and thereafter appointed the Arbitrator after filing of the present petition under Section 11 of the Act. The question to be considered by the Court in this petition is, despite the respondent having appointed an arbitrator after filing of the petition, can the Court proceed to appoint another arbitrator under Section 11 (6) of the Act treating the appointment of arbitrator made by the respondent as being contrary to Datar Switchgear versus Tata Finance Co. Ltd. reported at (2000) 8 SCC 151 and of no effect.

( 3 ) LET us now notice the facts of the present case: petitioner was a successful bidder in the tender floated by the respondent for procurement of underground PIJF telephone cables for the years 1995-96, 1996-97. Based on the Evaluation Committee, the petitioners claimed to be entitled to orders for a sizeable quantity of cables. Petitioner s grievance is that the contract to which they were entitled, were not given resulting in losses to them. A Writ Petition bearing No. 1200/97 filed by the petitioner-Company was disposed of, giving liberty to the petitioner-Company to invoke the arbitration clause. On 25. 4. 2000, the Director General Telecome appointed Shri K. L. Jain, General Manager (Development) as the sole arbitrator in view of the letter by the petitioner dated 26/02/2000. Shri K. L. Jain indicated his unwillingness to act as arbitrator.

( 4 ) THEREAFTER, petitioner-Company filed its claim before Mr. Ram Kumar, G. M. (Aandp) U. P. (W) Circle Dehradun, who was appointed as the arbitrator in his place, claiming Rs. 274430. 00 with interest at 18% and also for release of purchase orders for cables. The arbitrator despite the petitioner s request vide letter dated 14/02/2001, did not proceed with the arbitration. The petitioner perforce on 23/03/2001, requested the Director to appoint an arbitrator as the arbitrator did not hold any hearing and appeared not to be willing to act an an arbitrator.

( 5 ) AS there was no response the petitioner filed AA 125/2001 seeking appointment of an arbitrator. After issuance of notice, respondent filed their affidavit dated 9/10/2001 stating that Shri R. K. Tyagi, General Manager (Development), Haryana Telecom Circle, had been appointed the sole arbitrator in place of Shri Ram Kumar. The petitioner-Company objected to the said appointment of Shri R. K. Tyagi on the ground that Mr. R. K. Tyagi had been monitoring the case against the applicant-Company. The respondent in place of Shri R. K. Tyagi, appointed Shri Ram Narain as the arbitrator. The appointment of Shri Ram Narain was also opposed by the petitioner-Company on the ground that he has been appearing against the Company in another arbitration proceeding.

( 6 ) THE petitioner-Company thereupon requested Director General, Telecom to appoint another arbitrator in place of Shri Ram Narayan vide its letter dated 30th March, 2003. It is on the non-appointment of another arbitrator pursuant to the demand made on 3rd April, 2003, that the present petition has come up before this Court. The present petition has been filed on 21st April, 2003, by which time the Director General, Telecom, had not appointed any arbitrator. It is claimed that the respondents were served prior to 27th May, 2003. Respondent now have chosen to appoint the arbitrator. Shri Gurdeep Singh, G. M. (NMS NTR) as the new arbitrator.

( 7 ) THE plea raised by the petitioner is that as the respondents have failed to appoint an arbit