The expiration of an arbitrator's mandate due to statutory limits precludes the appointment of a substitute arbitrator under Section 15(2) of the Arbitration Act, 1996.

ORDER :

1. The instant petition has been filed with the prayer to appoint a co-arbitrator on behalf of the respondent in respect of the arbitration proceedings between the petitioner and the respondent.

2. Brief facts relevant to decide the controversy at hands are that the petitioner and Respondent No. 1-Company are privity to a share purchase and Share Subscription Agreement (SPA) and Share Holders Agreement (SHA) dated 03.06.2015. Clause 11.10 of the Share Purchase Agreement pari materia to Clause 18.12 of the Share Holders Agreement governs dispute resolution and reads as under:

“11.10 Governing Law and Dispute Resolution

(a) If any dispute arises between the Investors on the one hand any or all of the Company, Promoter Group on the other hand during the subsistence of the Transaction Documents or thereafter, in connection with or arising out of the validity, interpretation, implementation or alleged breach of any provision of the Transaction Documents or regarding a question, including the question as to whether the termination of any of the Transaction Documents by any Party has been legitimate, the disputing Parties shall endeavour to settle such dispute amicably, and the same shall in the first instant be resolved through mediation by reputed lawyers, 1 (One) each appointed by the Investors and the Promoter Group. The attempt to bring about an amicable settlement is considered to have failed as soon as one of the disputing Parties, after reasonable attempts, which attempt shall continue for not less than 30 (Thirty) days, gives 15 (Fifteen) days' notice thereof to the other disputing Parties in writing.

(b) In case of such failure, the dispute shall be referred to a sole arbitrator to be mutually appointed by the Promoters Group, the Company and the Investor within 5 (Five) days from the expiry of the said 15 (Fifteen) days' notice or in case of disagreement as to the appointment of the sole arbitrator, to 3 (Three) arbitrators, the Investor nominating one arbitrator and the Promoter Group appointing the second arbitrator where the dispute is between the Investors and the Promoters and where the dispute is between the Investors on the one hand and the Promoters and the Company on the other hand, the second arbitrator shall be appointed jointly by the Promoters and the Company, who shall both be appointed within 15 (Fifteen) days from the expiry of the said 5 (Five) days' period. The third arbitrator shall be appointed by the 2 (Two) arbitrators so appointed within 15 (Fifteen) days of their appointment. The arbitration proceedings shall be governed by the (Indian) Arbitration and Conciliation Act, 1996.

(c) The place of arbitration shall be Ahmedabad, India.

(d) The proceedings of arbitration shall be in the English Language.

(e) The arbitrator's award shall be substantiated in writing. The arbitral tribunal shall also decide on the costs of the arbitration proceedings.

(f) The award shall be binding on the Parties subject to the applicable Laws in force and the award shall be enforceable in any competent court of law.

(g) The award shall be concluded within 120 (One Hundred and Twenty) days of the date of reference of the dispute to arbitration.

(h) This Agreement shall be governed and construed in accordance with the Laws of India and subject to the provisions of arbitration as set out above, the courts at Ahmedabad, India will have exclusive jurisdiction.

(i) For avoidance of doubt it is clarified that nothing in this Clause 11.10 shall apply to disputes inter se between the Company and the Promoter Group.”

(Emphasis supplied)

3. On a dispute between the parties, a notice dated 21.09.2020 was sent by the petitioner invoking arbitration/dispute resolution clause as per the dispute resolution clause, nominating a mediator and calling upon the respondents to appoint their nominee mediator within 15 days, in order to proceed with the mediation in respect of the disputes arising out of the aforesaid agreement. The notice also stipulat