Strict enforcement of arbitration agreement and the law does not permit either party to act as an arbitrator or appoint the arbitrator to arbitrate on the disputes.

JUDGMENT

C. Hari Shankar, J. - This is a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "1996 Act"), to refer the dispute, between the petitioner and the respondent, to arbitration.

2. Given the nature of the controversy, a brief recital of facts would suffice. On 3rd December, 2011, an Agreement was executed between the petitioner and the respondent, whereunder the petitioner was required to supply Sandwich Bus Ducts to the respondent.

3. Article 15.3.1 of the Agreement dated 3rd December, 2011, provided for resolution of the disputes by arbitrator, which read thus:

"15.3.1 All disputes shall be resolved through Arbitration. The appointment of a sole arbitrator to be selected by the Supplier/ Manufacturer out of the names 3 such notable persons to be given by "JOP" within a period of 30 days from the notice of reference of unresolved disputes between the parties. The jurisdiction of holding the proceedings of such arbitration shall be the state of Delhi. The applicable law will be Arbitration and Conciliation Act, 1996. In case the Supplier/ Manufacturer fails to choose the name of an Arbitrator from the 3 names of Arbitrators suggested by "JOP" BOARD reserves its right to appoint an Arbitrator of its choice and the Supplier/Manufacturer shall be bound by such Arbitrator and his award."

4. Disputes arose between the parties. Vide letter dated 14th June, 2014, the respondent appointed one Mr. K. Sunil as the arbitrator to arbitrate on the disputes.

5. Contending that the learned arbitrator was not exercising its function with due diligence and he was unduly delaying the proceedings, the petitioner filed OMP(T)(COMM) 1/2018 before the learned Additional District Judge (hereinafter referred to as "learned ADJ"), under Sections 14(1) and 14(2) of the 1996 Act, for termination of the mandate of Mr. K. Sunil. Vide order, dated 29th September, 2020, OMP(T)(COMM) 1/2018 was allowed by the learned ADJ and mandate of Mr. K. Sunil, to arbitrate on the disputes between the petitioner and the respondent, was terminated, in terms of Section 14 of the 1996 Act. This order has, admittedly, attained finality.

6. Pursuant to the termination of the mandate of Mr. Sunil, it became necessary to appoint a substitute arbitrator to arbitrate on the disputes between the petitioner and the respondent.

7. The respondent, acting in accordance with the afore-extracted Clause 15.3.1 of the Agreement, proposed, vide letter dated 26th November, 2020 addressed to the petitioner, the names of three persons, out of which, the petitioner was requested to suggest one to appoint its arbitrator to arbitrate on the aforesaid disputes. The petitioner responded only on 4th January, 2021, after the period of 30 days, stipulated in Clause 15.3.1 of the Agreement, had expired, suggesting the name of Mr. O.P. Bhatia, one of three names, proposed by the respondent, to act as an arbitrator to arbitrate on the disputes between the parties.

8. On the same day, the respondent wrote to the petitioner stating that it had already appointed Mr. G.K. Pharlia, also one of the three names, proposed by the respondent in its communication dated 26th November, 2020, to arbitrate on the disputes.

9. Apparently, thereafter, Mr. Pharlia accepted his nomination as arbitrator and fixed hearing in the matter.

10. The petitioner, however, vide email dated 9th January, 2021, opposed the appointment of Mr. Pharlia as the arbitrator, stating that it had already appointed Mr. Bhatia as arbitrator vide its communication dated 4th January, 2021.

11. It is in these circumstances that the petitioner has moved the present petition, requesting this Court to appoint an independent arbitrator, in exercise of its powers conferred by Section 11 of the 1996 Act.

12. Mr. Rahul Malhotra, learned counsel for the petitioner, first sought to argue that though the petitioner had not responded to the communication dated 26th November, 2020, of the respondent, by selectin