The main legal point established in the judgment is that the unilateral appointment of an arbitrator contrary to the arbitration clause is non est and the affected party has the right to approach the court for the appointment of a sole arbitrator under Section 11(5) of the Arbitration and Conciliation Act, 1996.

VIBHU BAKHRU, J.

1. The petitioners have filed the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act'), inter alia, praying that a sole arbitrator be appointed to adjudicate the disputes that have arisen in connection with the Operating Agreement dated 08.09.2000 (hereafter 'the Operating Agreement') entered into between the respondent and Mr. Surender Kumar Kandhari (since deceased). The petitioners are the sons and legal heirs of late Sh. Surender Kumar Kandhari.

2. The Operating Agreement includes an arbitration clause, which is set out below :-

“19.1 ARBITRATION

Any dispute or difference arising between the parties hereto regarding the construction, meaning or effect or obligation of the parties hereto under this agreement or any clause thereof or matter .or thing herein contained or as to rights and liabilities of the parties hereto shall be referred to arbitration of the Arbitrator to be appointed by the parties hereto in accordance with the provisions of the Indian Arbitration Act 1940 or any statutory modification or re-enactment thereof for the time being in force.

19.2 The Arbitration and all legal proceedings shall be conducted and carried on in Delhi.”

3. Sh. Surender Kumar Kandhari and the respondent also entered into a supplementary agreement on 06.11.2004 (hereafter 'the Supplemental Agreement'), whereby the Operating Agreement was modified to the extent as agreed thereunder. It is relevant to state that the Supplemental Agreement also expressly provided that “All other terms and conditions of the said Operating Agreement shall remain unchanged, valid and binding on the parties hereto, save and except to the extent as modified hereinabove”.

4. There is no dispute that the arbitration clause, as contained in the Operating Agreement, is valid and binding on the parties.

5. The respondent has opposed the present petition solely on the ground that the respondent has already appointed an arbitrator and, therefore, the present petition is not maintainable.

6. Mr. D.D. Singh, learned counsel appearing for the respondent could not dispute that the appointment made by the respondent was contrary to the terms of the arbitration clause. However, he submitted that the petitioners had acquiesced in such appointment. He further contended that since the arbitrator had been appointed, the present petition was not maintainable. He relied upon the decision of the Supreme Court in Antrix Corporation Limited v. Devas Multimedia P. Ltd., (2014) 11 SCC 560 in support of his contention that once an arbitrator had been appointed, his appointment could not be questioned in the subsequent proceedings initiated for appointment of an arbitrator. He submitted that the petitioners may be entitled to challenge the appointment of the arbitrator but it could not do so in a petition under Section 11 of the Act.

7. Mr. Dubey, learned counsel appearing for the petitioners submitted that the petitioners had not concurred in the appointment of an arbitrator and, therefore, unilateral appointment of any person as an arbitrator by the respondent, was non est and of no consequence.

8. I have heard the learned counsel for the parties.

9. The undisputed facts are that the respondent had sent a letter dated 13.04.2016 to the petitioners calling upon them to handover possession of the immovable property, as specified in the said letter, to enable the respondent to proceed with the project contemplated under the Operating Agreement. The petitioners responded by a letter dated 03.05.2016 disputing the statements made in the letter dated 13.04.2016 and further calling upon the respondent to honour its commitments under the said Operating Agreement as modified by the Supplemental Agreement.

10. Thereafter, on 15.06.2016, the respondent caused another notice to be issued by its Advocate demanding the possession of the property in question failing which the return of a sum of Rs. 3 crores paid by the respondent under t