The right to appoint an arbitrator is not forfeited by serving notice for appointment; jurisdictional interventions can temporarily affect appointment rights, and the court's role is to ensure compliance with the arbitration agreement.

Judgment :

Mohammad Rafiq, CJ.

1. This arbitration petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (in short “Act, 1996”) has been filed by the petitioner- M/s. Rawani Construction, represented through its Partner Sri Nimeesh Kumar Rawani praying for appointment of an independent arbitrator to adjudicate the dispute arising out of the agreement dated 01.10.2004 (Annexure-1) executed between the parties.

2. Bereft of unnecessary details, the facts giving rise to this petition are that pursuant to a tender process, the opposite party awarded the contract in favour of the petitioner for execution of the work of “Construction of 44 nos of ‘D’ type quarters at Permanent Township of TSTPP (Package-V)" and accordingly, agreement dated 01.10.2004 (Annexure-1) was executed between the petitioner and the opposite party. According to the petitioner, the opposite party committed several breaches during execution of the work for which the petitioner sustained loss and incurred additional cost. The petitioner therefore invoked Clause 56 of the General Conditions of Contract read with Clause 7 of the contract agreement and Clause 20 thereof and requested the Chairman-cum-Managing Director of the opposite party-Corporation to appoint an arbitrator. Accordingly, Shri Surendra Gandotra was appointed by the opposite party as the Sole Arbitrator to adjudicate the dispute between the parties.

3. It is the case of the petitioner that the learned Sole Arbitrator did not conduct the arbitration proceeding as per the provisions of the Act, 1996. Therefore, the petitioner approached the learned District Judge, Angul by filing an application i.e. Arbitration Case No.25 of 2014 under Sections 14 (2) and 15 of the Act, 1996 praying for termination of the mandate of learned Arbitrator.

4. Mr. S.S. Padhy, learned counsel for the petitioner has submitted that the petitioner vide letter dated 09.02.2017 approached the Chairman- cum-Managing Director of the opposite party-Corporation as per Clause 56 of the General Conditions of Contract requesting to appoint a new arbitrator in place of Sri Surendra Gandotra, whose mandate was terminated by the learned District Judge, Angul. The said letter dated 09.02.2017 was received by the opposite party on 14.02.2017 as per the postal acknowledgement, yet the Chairman-cum-Managing Director has failed to appoint any arbitrator in terms of Clause 56 of the General Conditions of Contract. Since the opposite party did not act upon as per the provisions of the Act, 1996 as well as the conditions stipulated in the agreement and more than 30 days has elapsed, the petitioner has now constrained to file the present arbitration petition under Section 11 (6) of the Act, 1996 seeking appointment of an independent arbitrator.

5. In support of his argument, learned counsel for the petitioner has relied upon the judgments of the Supreme Court in the case of Datar Switchgears Ltd. vs. Tata Finance Ltd. and another , reported in (2000) 8 SCC 151 ; Deep Trading Company vs. Indian Oil Corporation and Others , reported in (2013) 4 SCC 35 and Uttarkhand Purv Sainik Kalyan Coal Field Limited vs. Northern Coal Field Limited , reported in (2020) 2 SCC 455 and argued that in view of sub-section (6-A) of Section 11 , which has been inserted in 2015 Amendment Act, this Court has no other jurisdiction except to see the arbitration clause. Once the parties have entered into the agreement containing arbitration clause, appointment of arbitrator has to automatically follow.

6. Mr. B.S. Tripathy, learned counsel for the opposite party contended that the opposite party has never forfeited its right of appointment of arbitrator only because the petitioner has serv