The existence of an arbitration clause allows a party to seek court assistance for appointing an arbitrator when no consensus exists, with other disputes to be resolved by the arbitrator.

ORDER :

Abdul Quddhose, J.

This petition has been filed under Section 11 of the Arbitration and Conciliation Act, seeking for the appointment of an Arbitrator by this Court.

2.There seems to be a dispute between the petitioner and the respondents arising out of the Loan Agreement dated 30.03.2016. The said Loan Agreement admittedly contains an arbitration clause and the same is extracted hereunder:

'17.Arbitration and Dispute Settlement

a)All disputes, differences and/or claims, arising out of this Agreement, whether during its subsistence or thereafter, shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any other statutory modification or re-enactment for the time being in force and shall be conducted by a sole arbitrator to be appointed by the Lender under the provisions of the Arbitration and Conciliation Act, 1996. The applicable law shall be Indian laws. In the event of incapacity or resignation or death of the sole arbitrator so appointed, the Lender shall be entitled to appoint another arbitrator in place of the earlier arbitrator and the proceedings shall continue from the stage at which the predecessor had left.

b) The award given by the arbitrator shall be final and binding on the parties to this Agreement. The cost of the Arbitration shall be borne with by the Party/ies, in accordance with the Award passed by the Arbitrator.

c)The venue of Arbitration shall be as specified in Schedule 1 hereto and the proceedings shall be conducted in English language.'

3.The petitioner has invoked arbitration in accordance with the arbitration clause by appointing a Sole Arbitrator. The Sole Arbitrator also passed an Arbitral Award in favour of the petitioner on 30.06.2018 against the respondents in A.C.P. No.49 of 2018. The said Arbitral Award was challenged by the first respondent before the Principal District Court, Ramanathapuram in A.O.P. No.46 of 2021. By order dated 28.03.2022, the earlier Arbitral Award dated 30.06.2018 passed by the Sole Arbitrator in A.C.P. No.49 of 2018 was set aside by the Principal District Court, Ramanathapuram under Section 34 of the Arbitration and Conciliation Act on the ground that the Arbitral Award passed by the Arbitrator at Karaikudi was not the seat of the arbitration. The petitioner was also granted liberty to initiate fresh arbitration through its order dated 28.03.2022 passed under Section 34 of the Arbitration and Conciliation Act. Based on the relief granted by the Principal District Court, Ramanathapuram, the petitioner has now filed this petition under Section 11 of the Arbitration and Conciliation Act seeking for appointment of an Arbitrator by this Court.

4.Prior to the filing of this petition, the petitioner had earlier sent a pre-arbitration notice dated 22.06.2023 to comply with the requirement under Section 21 of the Arbitration and Conciliation Act, 1996. Notice sent under Section 21 of the Arbitration and Conciliation Act, 1996 has been returned un-served.

5.Since there is no consensus between the parties with regard to the name of the Arbitrator, the petitioner has filed this petition under Section 11 of the Arbitration and Conciliation Act, 1996.

6.A counter affidavit has been filed by the respondents stating the following reasons:

a)This petition is not maintainable since the petitioner has not stated as to when the cause of action arose for the petitioner to file this petition under Section 11 of the Arbitration and Conciliation Act, 1996;

b)No proper authorisation has been filed for permitting the Authorised Signatory to file this petition under Section 11 of the Arbitration and Conciliation Act, 1996;

c)While issuing notice dated 22.06.2023 seeking to comply with the requir