Sanjeev Narula, J.

The facts of both the petitions are similar and a common question of law arises and therefore both the petitions are being decided by a common order.

2. Petitioner company is engaged principally in the business of providing certain software and related services to telecom companies. Respondent is a telecommunication company engaged in operating cellular mobile services in India. Petitioner was the successful bidder under the tender dated 6th August 2015 floated by the Respondent for deployment of system for Easy Credit Platform in BSNL network. In terms of the tender, Petitioner furnished a performance bank guarantee to the Respondent and thereupon Respondent placed work order dated 31st January 2017 on the Petitioner.

3. Petitioner contends that due to adverse changes in the circumstances, the entire contract stands frustrated. Since disputes between the parties could not be resolved amicably, Petitioner vide notice dated 14th February 2019 invoked the Arbitration Clause contained in the tender.

4. The Chairman cum Managing Director (hereinafter referred to as 'CMD') of the Respondent in response to the invocation notice dated 14th February 2019, proceeded to appoint a retired judge of this Court as the Sole Arbitrator.

5. Aggrieved with the aforesaid appointment Petitioner, has filed the present petitions under Section 11 (5) read with Section 11 (6) of the Arbitration and Conciliation Act, 1996 ( hereinafter referred to as the 'Act') seeking appointment of an Arbitrator.

6. On 20th March 2019, the Court passed the following order:

"ARB.P. 189/2019 & ARB.P. 190/2019

2. At the outset, learned counsel for the Respondents submits that pursuant to a request for appointment of Arbitrator, the Chairman and Managing Director of Respondent Company has appointed a retired Judge of this Court as Arbitrator to adjudicate upon the disputes that have arisen between the parties. Learned counsel has handed over a copy of a letter dated 11th March 2019, copy whereof has been furnished to the Learned Counsel for the Petitioner. Mr. Sandeep Sethi learned senior counsel for the Petitioner, submits that the said appointment is invalid, in view of the clause contained in the Arbitration Agreement, which reads as under:

"18.2 In the event of any question, dispute or difference arising under this agreement or in connection there-with (except as to the matters, the decision to which is specifically provided under this agreement), the same shall be referred to the sole arbitration of the CMD, BSNL or in case his designation is changed or his office is abolished, then in such cases to the sole arbitration of the officer for the time being entrusted (whether in addition to his own duties or otherwise) with the functions of the CMD, BSNL or by whatever designation such an officer may be called (hereinafter referred to as the said officer), and if the CMD or the said officer is unable or unwilling to act as such, then to the sole arbitration of some other person appointed by the CMD or the said officer. The agreement to appoint an arbitrator will be in accordance with the Arbitration and Conciliation Act 1996. There will be no objection to any such appointment on the ground that the arbitrator is a Government Servant or that he has to deal with the matter to which the agreement relates or that in the course of his duties as a Government Servant he has expressed his views on all or any of the matters in dispute. The award of the arbitrator shall be final and binding on both the parties to the agreement. In the event of such an arbitrator to whom the matter is originally referred, being transferred or vacating his office or being unable to act for any reason whatsoever, the CMD, BSNL or the said officer shall appoint another person to act as an arbitrator in accordance with terms of the agreement and the person so appointed shall be entitled to proceed from the stage at which it was left out by his predecessors.

18.3 Subject to the afor