JUDGMENT :

1. Heard Shri B.K. Saxena learned counsel and Sri O.P. Srivastava learned Senior Counsel assisted by Sri Anurag Verma learned counsel for the petitioners and Sri D.K. Srivastava learned counsel who has put in appearance on behalf of the respondent no. 1.

2. Attaching primacy to the domain of parties for constitution of the Arbitral Tribunal, this Court passed an order on 6.8.2021, which reads as under:

"Heard Sri.O.P. Srivastava, learned senior counsel and Sri B.K.Saxena, learned counsel assisted by Sri Anurag Verma learned counsel for the petitioners and Sri Dhirendra Kumar Srivastav, learned counsel for the opposite parties.

There is a hope of some mutual agreement insofar as the appointment of the arbitrator in the present case is concerned.

List this case on 11.08.2021 in terms of the order already passed."

3. The hope ultimately failed. The arbitration clause contained in the agreement giving rise to the dispute reads as under:

"All disputes or differences whatever arising between the parties out of or relating to the construction, meaning and operation or effect of this agreement or the breach thereof shall be settled by arbitration in accordance with the rules of arbitration of the Indian Council of Arbitration and the award in pursuance thereof shall be binding on the parties. The award will be speaking order."

4. At the time when dispute within the scope of agreement arose in the year 2002, the opposite party no. 1 approached this Court under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of the arbitrator. The application so filed registered as Arbitration Application No. 7 of 2002 was disposed of by order dated 12.7.2002 reproduced as under:

"Hon'ble Mr. M.M. Dutt, a retired Judge of the Supreme Court of India, is appointed sole Arbitrator under Section 11(5) of the Arbitration and Conciliation Act, 1996. The Arbitrator shall be paid Rupees 15,000/-per sitting to be borne by the parties equally."

5. It is pursuant to this order that both the parties subscribed to the arbitral proceedings before the Tribunal of sole Arbitrator until his demise on 15.7.2009.

6. Parties concede to the extent that a claim was raised before the Arbitral Tribunal by the opposite party no. 1 to which a written statement was also filed by the petitioners. It is also admitted to both the parties that as many as 104 sittings of the sole Arbitrator took place, however, the stage to which the proceedings progressed is not clearly stated in the present application or the objections filed by the opposite party. The proceedings before the Arbitral Tribunal of sole Arbitrator also remained unquestioned by either of the parties.

7. The present petition instituted in 2019 under Section 11(6) read with Section 15(2) of the Act has come up for hearing after about eleven years of the termination of mandate. An exhaustive exercise of correspondence prior to the filing of this application seems to have taken place between the parties but of no consequence.

8. The factual position that emerges from the averments made in the application and the counter affidavit filed in response thereto is that prior to filing of the present application, the petitioners seem to have constituted the Arbitral Tribunal of sole Arbitrator by appointing one Rajesh Saha, General Manager(F&A), FCI on 20.12.2017 but the opposite party no. 1 for the reasons best known did not subscribe to the proceedings.

9. The opposite party no. 1 instead chose to proceed in accordance with the agreement by making an application on 1.10.2017 to the Indian Council of Arbitration (ICA) pursuant to which the Arbitral Tribunal of three members was constituted notwithstanding the objection raised by the petitioners as to the procedure. According to the petitioners, the appointment of substitute arbitrator would not be legitimate unless he is appointed in the same manner in whi