The main legal point established in the judgment is the necessity to adhere to the arbitration clause in the contract and the failure of the respondent to appoint an arbitrator in accordance with the contract terms.

JUDGMENT :

The instant application is under Section 11(6) (c) of the Arbitration & Conciliation Act, 1996 for appointment of sole Arbitrator in terms of the condition stipulated under the Contract as under Clause 34 for resolution of dispute in between the parties.

2. The petitioner-applicant, namely M/s Kamdhenu Electronics Pvt. Ltd., has been engaged in the business of sale and marketing of various kinds of BSNL Telecom Products apart of other related businesses. The petitioner-applicant has been allotted Franchisee ship under the Ranchi SSA of the Jharkhand Telecom Circle. According to the applicant, the work has been performed but the claim has not been decided.

3. The petitioner-applicant had approached to this Court by filing an application under Section 11(6) (c) of the Arbitration & Conciliation Act, 1996 being Arbitration Application No.13 of 2018 but a Co-ordinate Bench of this Court held the application to be not maintainable since without exhausting the remedy of making request as stipulated under Clause 34 of Franchisee Agreement, the application under Section 11(6) of the Arbitration & Conciliation Act, 1996 has been made. However, liberty was granted to the petitioner-applicant to invoke Clause 34 of the Contract in accordance with law. The petitioner-applicant had made request upon the respondent-BSNL for appointment of Arbitrator in terms of Clause 34 of the Contract by making an application on 10.06.2019 but no order has been passed, therefore, the instant application has been filed for appointment of sole Arbitrator for resolution of dispute.

4. It appears that vide order dated 21.10.2021 an order has been passed for appointment of sole Arbitrator, by invoking the jurisdiction conferred under Section 11(6) (C) of the Arbitration & Conciliation Act, 1996. The relevant paragraph of the said order is referred hereunder as:-

“8. This Court, therefore, in exercising the jurisdiction conferred under Section 11(6)(c) of the Act, 1996 is hereby of the opinion, in the given facts of this case, that it is a fit case where the sole Arbitrator is required to be appointed in adherence to the arbitration clause as under Clause 34 of the contract.

So far as the contention raised by the learned counsel for the respondent BSNL that the sole Arbitrator has been appointed in terms of the contract as contained under Clause 31.3 and as such, there is no need to exercise the power under Section 11(6)(c), if the Arbitrator has already been appointed. But this Court is not impressed with such argument for the reason that Clause 31.3 of the contract confers power upon the BSNL Management to appoint CGM as the sole Arbitrator but the said conferment of power has not been invoked by the BSNL at the appropriate stage and when the petitioner has approached to this Court by filing an application under Section 11(6)(c) and in terms of the liberty granted therein a request has been made on 10.06.2019 then only the power conferred under Clause 31.3 of the contract has been invoked which cannot be said to be justified action on the part of the respondent Management. It is further for the reason that if the respondent BSNL would have invoked the power conferred under Clause 31.3 of the contract at the very initial stage when the petitioner has not invoked the jurisdiction as conferred under Clause 34 of the contract but having not done so, at this stage, the appointment of arbitrator as under Clause 31.3 cannot be said to be justified rather it is contrary to the terms and conditions of the contract.

9. Since today learned counsel for the parties are not having with the list of the Arbitrators, therefore, let the matter be posted on 11.11.2021 for filing affidavit disclosing the name of the Judicial Officers to be appointed and nominated as the sole Arbitrator for passing further appropriate order on the next date.”

5. The parties have filed affidavits giving suggestion of names of the retired judicial officers for appointment as sole Arbitrator.

6.