The main legal point established is that a party forfeits its right to nominate an arbitrator if it fails to do so within the specified time, and the court has the power to appoint an independent arbitrator in such circumstances.

Alok Aradhe, J.:-

This petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") for appointment of Arbitrator on behalf of the respondent. Background facts leading to filing of the petition briefly stated are that the petitioner is engaged in the business of civil construction. The petitioner agreed to carry out the construction work of various buildings for the respondent at Oriental Institute of Science and Technology and Oriental Engineering College in Jabalpur, Madhya Pradesh. A Letter of Intent was issued on 21-4-2009. Clause 27 of the aforesaid Letter of Intent contains an arbitration clause, which reads as under:--

"All disputes and differences of any kind, whatever arising out of or in connection with the contract or the carrying out of the works (whether during the progress of the works or after their completion and whether before or after the determination, abandonment or breach of the contract) shall be referred to and settled by the Architect who shall state his decision in writing. Such decision may be in the form of a Final Certificate or otherwise. The decision of the Architect with respect of any of the Excepted Matters shall be final and without appeal; but, if either the employer or the contractor be dissatisfied with the decision of the Architect on any matter, question or dispute of any kind (except any of the Excepted Matters) or as to the withholding by the Architect of any certificate to which the contractor may claim to be entitled then and in any such case either party (the employer or the contractor) may within 28 (twenty eight) days after receiving notice of such decision give a written notice to the other party through the Architect requiring that such matters in dispute be arbitrated upon. Such written notice shall specify the matters which are in dispute and such dispute or difference of which such written notice has been given and no other shall be and is hereby referred to the arbitration and final decision of a single Arbitrator being a Fellow of the Indian Institute of Architects to be agreed upon and appointed by both the parties or in case of disagreement as to the appointment of a single Arbitrator to the arbitration of two Arbitrators both being Fellows of the Indian Institute of Architects one to be appointed by each party, which Arbitrators shall before taking upon themselves the burden of reference appoint an umpire."

2. The dispute arose between the parties. The petitioner thereupon invoked arbitration clause and vide communication dated 25-8-2011 nominated Mr. Abhijit Ray as an Arbitrator whereas the respondent nominated one Mr. Amogh Kumar Gupta as an Arbitrator. The aforesaid two Arbitrators unanimously appointed one Mr. K. Rajagopalan as Presiding Arbitrator and the communication in this regard was sent to the parties on 19-1-2012. Thus, the Arbitral Tribunal was constituted in terms of arbitration clause.

3. Thereafter, the respondent filed an application under Section 14 of the Act for termination of the mandate of the Arbitral Tribunal comprising Mr. Abhijit Ray, Mr. Amogh Kumar Gupta and Presiding Arbitrator Mr. K. Rajagopalan. The Trial Court vide order dated 13-7-2013 terminated the mandate of the Arbitrator appointed by the respondent on the ground that the aforesaid Arbitrator by communication dated 17-3-2012 has expressed his unwillingness to proceed with the arbitration. Admittedly, the aforesaid order has attained finality.

4. The petitioner thereafter, vide communication dated 19-9-2013 requested the respondent to nominate its Arbitrator. However, the respondent failed to nominate the Arbitrator within a period of 30 days from the date of receipt of communication sent by the petitioner. In the aforesaid factual background, the petitioner has approached this Court seeking appointing of the Arbitrator on behalf of the respondent.

5. Learned Counsel for the petitioner submitted that the respondent