The court retains the authority to appoint a substitute arbitrator when the original arbitrator's mandate expires, regardless of other party actions to appoint arbitrators.

1. This is an application under S.11(6) of The Arbitration and Concilliation Act, 1996, (for short, the said Act), for appointment of the Arbitrator.

2. Briefly, the facts of the case relating to decide the above Application are that based on an Arbitration Clause in the Deed of Partnership executed between the parties on 20.03.1996, an application was filed before this Court for appointment of Arbitrator under S.11(6) of the said Act.

3. By an Order dated 30.08.2011, Justice G.D. Kamat, retired Chief Justice of Gujarat High Court, was appointed as the Sole Arbitrator to adjudicate the dispute between the parties. Thereafter, the said Arbitrator expired and, consequently, the above application was filed by the Applicant to appoint a new / substitute Arbitrator to proceed with the Arbitration.

4. The Respondent after being served, objected to the said application. It is the contention of the Respondent that once the Arbitrator has expired, his mandate gets terminated in terms of S.14 of the said Act and that a new Arbitrator would have to be appointed after following the procedure to appoint an Arbitrator in terms of the Agreement between the parties. It is further the contention of the Applicant that as such the power to appoint an Arbitrator under S.11(6) of the said Act, only arises when there is a refusal on the part of the Respondent to appoint an Arbitrator in terms of the Agreement. It is further pointed out that as the claim itself is not maintainable and, as such, the above application deserves to be rejected.

5. Mr. Mulgaonkar, learned Counsel appearing for the Applicant pointed out that once the Arbitrator has expired as the appointment was made by this Court under S.11(6) of the said Act, this Court can appoint a substitute Arbitrator.

6. On the other hand, Shri Parag Rao, learned Counsel appearing for the Respondents, has vehemently opposed the said application. Learned Counsel further pointed out that once the term of the Arbitrator stands terminated in view of his death, the parties would have to resort afresh to appoint an Arbitrator by following the procedure laid down in the Agreement executed between the parties. Learned Counsel has taken me through the provisions of S.14 and S.15 of the said Act to point out that once the mandate of the Appellant stands terminated, a fresh Arbitrator has to be appointed in terms of the Rules governing the relationship between the parties. Learned Counsel further pointed out that this Court as such cannot appoint a fresh Arbitrator in terms of S.11(6) of the said Act unless the Applicant has started the process afresh in terms of the Agreement to appoint an Arbitrator.

7. In support of his submissions, learned Counsel has relied upon the Judgments of the Apex Court reported in (2006) 6 SCC 204 in the case of Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd. and (2016) 1 SCC 721 in the case of Huawei Technologies Company Limited v. Sterlite Technologies Limited .

8. I have considered the submissions of the learned Counsel and have also gone through the records. Both the Judgments relied upon by Mr. Parag Rao, learned Counsel appearing for the Respondent, are in the context of an appointment of an Arbitrator by the parties in terms of the Arbitration Agreement subsisting between the parties. It is not a case wherein an Arbitrator was appointed under S.11(6) of the said Act by the Hon'ble Chief Justice or his designate. Dealing with a similar issue, the Calcutta high Court in a Judgment reported in 2009 SCC OnLine