Once a party initiates arbitration proceedings under Section 11(6), the opposing party's right to appoint an arbitrator ceases, making any subsequent appointment invalid.

JUDGMENT :

MANEESH SHARMA, J.

1. The present Arbitration Application has been filed by the applicant under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996'), seeking appointment of an arbitrator to adjudicate the dispute pending between the parties in relation to the operating of a Refreshment Trolley No. 2 at West Central Railway, Kota. The said trolley was licensed to sell fruits, sweets, tea, and other commodities in the name of the applicant’s late husband, Shri Krishan Kumar Nagar, who passed away on 03.11.2023.

2. Brief facts giving rise to the present application are that after the demise of her husband, the applicant, Smt. Sohan Bai was not permitted to continue operations or transfer the trolley license in her name, despite the existence of a subsisting agreement dated 08.05.2010. Being aggrieved by the respondents’ actions and their attempt to dispossess her, the applicant filed S.B. Civil Writ Petition No. 3063/2024 titled as 'Sohan Bai vs. Union of India & Ors.', whereby a Co-ordinate Bench of this Court, while disposing of the petition, granted liberty to the applicant to initiate proceedings for appointment of an arbitrator in terms of the Catering Policy, 2017.

3. That pursuant to the liberty granted, the applicant, vide notice dated 06.03.2024, requested the respondents to appoint an independent arbitrator not below the rank of a retired District Judge. Despite receipt of the said notice, the respondents failed to act upon it and did not appoint an arbitrator.

4. Consequently, the applicant filed the present application under Section 11 (6) of the Act of 1996, before this Court on 17.05.2024; and on 31.05.2024, learned counsel for the respondents sought time to file a reply, and the matter was adjourned to 05.07.2024. Surprisingly, during the pendency of this application, the respondents appointed an arbitrator on 11.06.2024. Thereafter, vide order dated 05.07.2024, a Co- ordinate Bench of this Court stayed the proceedings before the arbitrator so appointed by the respondents.

5. Learned counsel for the applicant - Smt. Sohan Bai submits that once the applicant had sent the notice dated 06.03.2024, and subsequently filed this application under Section 11 (6) of the Act of 1996, the respondents lost their right to appoint an arbitrator; therefore, the appointment dated 11.06.2024 was without jurisdiction. To support his contention, he further placed reliance upon a judgment passed by the Hon'ble Apex Court in the matter of Union of India Vs. M/s Bharat Battery Manufacturing Co. (P) Ltd., (2007) 7 SCC 684 and Deep Trading Company Vs. Indian Oil Corporation , (2013) 4 SCC 35 . He further submits that, being an illiterate lady, the applicant lacks legal acumen and that the respondents have knowingly appointed the arbitrator to obtain a favorable forum.

6. Per contra, learned counsel for the respondents has opposed the submissions advanced by the learned counsel for the applicant and submitted that the arbitrator was duly appointed in terms of the arbitration clause i.e., Clause 26 of the Catering Policy of 2017, and the applicant, having initiated the arbitration process vide notice dated 06.03.2024, cannot now question the appointment made thereunder. He further argued that the applicant had waived the statutory mandate under Sections 12 (5) and 31A(5) of the Act of 1996, and to support his contention, he placed reliance upon a judgment of the Hon'ble Apex Court in Indian Oil Corporation Ltd. Vs. M/s Raja Transport Pvt. Ltd. , (2009) 8 SCC 520 and Union of India Vs. Pradeep Vino