The court emphasized the importance of following the agreed procedure before approaching the court for appointment of an Arbitrator under Section 11(6) of the Arbitration & Conciliation Act.

Sudhanshu Dhulia, J.

1. This is an application filed by the applicant, under sub-Section (6) of Section 11 of the Arbitration & Conciliation Act, for appointment of an Arbitrator. Notices were issued to the respondent. Mr. Vinay Garg, Advocate is representing respondent before this Court, who has also filed its reply in the matter.

2. Heard Mr. Deepak Jain, learned counsel for the applicant, Mr. Vinay Garg, Advocate holding brief of Mr. Vipual Sharma, learned counsel for the respondent/SIIDCUL and perused the record.

3. The case of the applicant/petitioner before this is that both the parties entered into a lease deed on 18.06.2013 regarding an industrial plot given by State Infrastructure and Industrial Development Corporation (from hereinafter referred to as “SIIDCUL”) in favour of the applicant i.e. M/s Golden Infracon Pvt. Ltd. Clause 9.2 of the Lease Deed dated 18.06.2013, which pertains to appointment of an Arbitrator, reads as follows:-

“9.2. All disputes and differences in relation to the applicability, interpretation, rights and obligations of the parties, hereunder and/or arising under these presents, shall be referred to a Sole Arbitrator to be nominated by the Managing Director of the Lessor within thirty (30) days from the date of receipt of a request for nomination of Sole Arbitrator, the Managing Director of the Lessor shall, nomination of Sole Arbitrator and issue communication in respect of the same to the parties. In case, the Sole Arbitrator is not nominated within a period stipulated hereinabove, the parties will be at liberty to invoke the provision of the Arbitration and Conciliation Act, 1996 and any subsequent amendments thereto or enactments in substitution thereof, for appointment of Sole Arbitrator.”

4. For the development of the industrial plot, which was given by the respondent in favour of the petitioner, the respondent allegedly failed to perform its part by not creating the infrastructure work and other facilities as per the agreement. Consequently, the petitioner has given a notice to the respondent/SIIDCUL for appointment of an Arbitrator on 19.10.2016 as per Clause 9 of the lease deed/agreement dated 18.06.2013. The relevant portion of the notice reads as under:-

“It is hereby submitted that the GIPL has made huge investments towards site and machinery and altered their position as per the MOU between the parties; however, SIIDCUL did not honour its commitments as per the MOU resulting in inordinate delays that have seriously affected the capital of GIPL.Therefore, we are hereby invoking Arbitration as per Clause 9 of the Lease Deed dated 18.06.2013. It is pertinent to mention herein that the appointment of an arbitrator as per the Arbitration Clause has become ineffective after the Amendment of Arbitration and Conciliation Act in 2015; therefore, in view of the same we are suggesting appointment of Justice (Retd.) R.C. Chopra R/o A-384, Defence Colony, New Delhi – 110 024 as Arbitrator in the present matter.

You are hereby requested to give your consent to the said appointment within thirty (30) days from the date of this notice so that the proceedings can be commenced at the earliest.”

(emphasis supplied)

5. Since the Arbitrator, as per the requisition of the petitioner, was not appointed, the petitioner was constrained to move the present application under sub Section (6) of Section 11 of the Arbitration & Conciliation Act, before this Court and the reply to it has also been filed by the respondent.

6. The main contention of the respondent is that the petitioner has not followed the procedure, which was liable to be done as per the agreement and only thereafter he could approach this Court by filing present arbitration application under sub-clause (6) of Section 11 of the Arbitration & Conciliation Act. The contention of the counsel would be that Section 11(6) of the Arbitration & Conciliation Act clearly contemplates that before approaching this Court under sub-Section (6) of Section 11 o