This petition is filed for appointment of a sole

arbitrator as contemplated under an agreement for

arbitration contained in a registered Lease Deed

dated 05.03.2021. There is no dispute about the

existence of the arbitration agreement or the

arbitrability of the dispute, or that the parties have

failed to arrive at a consensus on who could enter

reference of the dispute for arbitration.

Mr. Sagar G. Nahar, the learned counsel

for the respondent, submits that this Court may

consider deferring passing orders appointing an

arbitrator in view of the fact that the respondent has

filed an application under Section 9 of the Arbitration

and Conciliation Act, 1996 [for short, 'the Arbitration

- 3 -

Act'] before the competent civil Court in Commercial

Application No.269/2023 and the application is

reserved for orders to be pronounced on 11.09.2023.

The

learned

counsel

submits

that

given

the

provisions of Section 9(3) of the Arbitration Act,

pending

orders

on

such

application

by

the

Commercial Court, if an arbitrator is appointed, the

application under Section 9 of the Arbitration Act

could be rendered infructuous or in the least there

could

be

practical

difficulties

as

the

interim

protection, even if given, would be confined till the

date of constitution of arbitral tribunal.

3.

In rejoinder, Ms. Desiree M Pais, the

learned counsel for the petitioner, relies upon the

decision

of

the

Hon'ble

Supreme

Court

in

Arcelormittal Nippon Steel India Limited v Essar

Bunk Terminal Ltd.¹ to contend that there cannot

be any difficulties much less the difficulty that is

1 (2022)1 Supreme Court Cases 712

- 4 -

canvassed in view of the declaration that once an

application under Section 9 of the Arbitration Act is

under consideration, the bar under Section 9(3) of

the Arbitration Act under which such application is

filed, would not operate when hearing has been

concluded and orders are reserved on the application.

The learned counsel in fact relies upon paragraph 86

of the aforesaid decision which reads as under:

"On a combined reading of Section 9

with Section 17 of the Arbitration Act, once an

Arbitral Tribunal is constituted, the Court

would not entertain and/or in other words

take up for consideration and apply its mind to

an application for interim measure, unless the

remedy under Section 17 is inefficacious, even

though the application may have been filed

before the constitution of the Arbitral Tribunal.

The bar of Section 9(3) would not operate, once

an application has been entertained and taken

up for consideration, as in the instant case,

where hearing has been concluded and

judgment has been reserved. Mr. Khambata

may be right, that the process of consideration

continues till the pronouncement of judgment.

- 5 -

However, that would make no difference. The

question

is

whether

the

process

of

consideration

has

commenced,

and/or

whether the Court has applied its mind to

some extent before the constitution of the

Arbitral Tribunal. If so, the application can be

said

to

have

been

entertained

before

constitution of the Arbitral Tribunal."

4.

This decision allays all fear as canvassed

by the learned counsel for the respondent and in the

light of the undisputed facts, the petition must be

allowed appointing a sole arbitrator. This Court must

observe that to ensure that there is no difficulty, a

certified copy of this order may be placed before the

concerned

Commercial

Court

in

Commercial

Application No.269/2023 and this liberty is being

reserved with the observation that there is no

observation

on

the

merits

of

the

application

howsoever.

In the light of the afore, the following:

- 6 -

ORDER

a)

The petition is allowed, and Hon'ble Mr.

Justice Ajit J. Gunjal, former Judge of this

Court, is appointed as the sole arbitrator to

enter reference of the dispute between the

petitioner and respondent and conduct the

proceeding at the Arbitration and Conciliation

Centre

(Domestic

and

International),

Bengaluru according to the Rules gove