1. The applicant has filed the present application, under Section 11 of the Arbitration and Conciliation Act (hereinafter referred to as ‘the said Act’) seeking appointment of an independent arbitrator to adjudicate upon the disputes having arisen between the parties.

2. The short facts necessary for deciding the present application are that the applicant is a film financer and the respondent is carrying on the business of production of cinematographic films. The respondent having approached the applicant to finance for the production of the film ‘Chupa Rustam’, the applicant had agreed to finance a sum of Rs.1,06,75,000/- to the respondent. It appears that thereafter the production of the film was stopped for want of funds, and the agreement dated 8/4/1998 was entered into between the parties, known as “World Right Agreement”. Copy of the said agreement is produced on record at Annexure-3. It appears that thereafter again some differences and disputes arose between the parties, and another agreement with reference to the said “World Right Agreement” was entered into between the parties on 21/7/2001 (Annexure-4) in respect of the said film. In the said agreement dated 21/7/2001, it was agreed that if any disputes or differences arose between the parties in respect of the said film or otherwise howsoever, the same shall be referred to the sole arbitrator Mr. C.B. Wadhwa, Advocate, whose decision/award shall be final/binding upon the parties. According to the applicant, despite the terms of settlement as mentioned in the said agreement dated 21/7/2001, the respondent continued to commit breach of the agreement, and therefore the applicant served a notice dated 19/11/203 (Annexure-7), calling upon the respondent to make the payment of outstanding amounts including the royalty of music sales. The respondent however through its Advocate sent a reply dated 29/12/2003 (Annexure-8) contending interalia that the agreement signed on 21/7/2001 had provided for execution of the deed of assignment, which was neither prepared nor executed and therefore the said agreement was neither operative nor binding. It appears that thereafter certain correspondence ensued between the parties, and ultimately the applicant through his Advocate wrote a letter dated 15/3/2004 (Annexure-12) to the named arbitrator Mr. C.B. Wadhwa requesting him to enter upon the reference, invoking the arbitration clause (viii) as envisaged in the agreement dated 21/7/2001. Thereafter also certain notices and replies were exchanged between the parties, and the applicant finally requested the arbitrator vide the letter dated 12/8/2008 to proceed further in the matter.

3. It further appears that the arbitrator vide the letter dated 24/9/2008 (Annexure-23) informed the applicant and the respondent about the fixing of the first date of hearing on 8/10/2008. The applicant accordingly filed the statement of claims along with the documents before the said arbitrator on 8/10/2008, however the respondent did not attend the said proceedings on that date and the arbitrator adjourned the proceedings. The respondent thereafter sent a letter dated 18/3/2009 (Annexure-24) to the arbitrator through its Advocate requesting him not to act as the arbitrator for the reasons stated therein. However, the said request was turned down by the Arbitrator Mr. Wadhwa as per the order dated 15/5/2009. The arbitrator thereafter appears to have adjourned the proceedings from time to time, and ultimately vide the letter dated 12/6/2009 informed the applicant that due to his advanced age, it was not possible for him to act as an arbitrator in the matter. The said letter is on record at Annexure-27. The said arbitrator having withdrawn from his office, the applicant has filed the present application, seeking appointment of an arbitrator under Section 11 of the said Act.

4. The respondent has resisted the present application by filing the reply raising preliminary objections contending interalia