The court clarified that a previous dismissal of an application for appointment of an Arbitrator does not preclude the applicant from seeking appointment through the correct authority, and hypertechnical objections should not render a party remediless.

JUDGMENT

Vinit Kumar Mathur, J. - Heard learned counsel for the parties.

2. The present application has been preferred under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of the Arbitrator in the present case.

3. Brief facts giving rise to the present application are that the petitioner entered into a contract with the Railways for performing the certain works. On a dispute being arisen between the parties, the applicant served a notice dated 15.03.2018 to the Divisional Railway Engineer (West), North Western Railway, Jodhpur for appointment of the Arbitrator which is placed on record as (Annex. R/2). When the Divisional Railway Engineer (West), North Western Railway, Jodhpur failed to appoint the Arbitrator, the applicant preferred an application being S.B. Arbitration Application No. 11/2018 before this Court. This court vide judgment dated 23.10.2018 disposed of the said application in the following terms:-

"In view of the above discussion, the applicant having failed to comply with the necessary pre-requisite conditions for invoking provisions of Section 11(6) of the Act, the application is not maintainable and, consequently, the same is dismissed leaving it open for the applicant to act in accordance with law."

4. After the decision of the Arbitration Application No. 11/2018, the applicant served a notice/representation on 27.10.2018 to the General Manager (North Western Railway), Jaipur for appointment of Arbitrator to resolve the dispute between the applicant and the respondent. In pursuance of the representation dated 27.10.2018, the respondents failed to appoint the Arbitrator in the matter and, therefore, the present application has been filed.

5. Learned counsel for the applicant submits that as per the Clauses 63 & 64 of the contract agreement between the applicant and the respondent, if any dispute is arisen between the parties, the same will be resolved by appointing an Arbitrator but the respondent failed to appoint the Arbitrator in the present case, thus, the present application has been preferred. It is prayed that an Arbitrator may be appointed in the matter for resolving the dispute between the applicant and the respondent.

6. Per contra, learned counsel for the respondent vehemently opposed and submits that it is not open for the applicant to move an application for appointment of the Arbitrator as the period of limitation has expired which is 180 days as per Clause 64 of the contract agreement. He further submits that the liberty was granted by this court vide order dated 23.10.2018 to the applicant to act in accordance with law and since the applicant has failed to approach the correct authority in the first instance, therefore, the applicant cannot be allowed to file representation/application for appointment of an Arbitrator to the correct authority at this belated stage. He further submits that as per Clause 64, the period of limitation for approaching the appropriate authority for appointment of an Arbitrator is 180 days and since the petitioner failed to approach the correct authority in time, he cannot be permitted at this stage to invoke the arbitration clause for appointment of the Arbitrator.

7. Learned counsel for the respondent has relied upon the judgments of Supreme Court in case of Union of India & Ors. v. M/s. Onkar Nath Bhalla & Sons reported in 2009 0 Supreme (SC) 755 and Wild Life Institute of India, Dehradun, Appellant v. Vijay Kumar Garg, Respondent reported in 1997 0 Supreme (SC) 801 1997 10 SCC 528.

8. I have considered the submissions made at the Bar and gone through the record of the case.

9. Admittedly, the arbitration Clause 63 & 64 of the contract agreement exists between the applicant and the respondent as and the same is not disputed by the parties before this Court. It is also noted that in the earlier round of litigation, the application preferred by the applicant was decided by this Court on 23.10.2018 and a liberty was granted to the applicant to act i