Case Note & Summary
The applicant, Vanita Om Agrawal, filed an application under section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of an arbitrator. The parties had entered into a Memorandum of Understanding dated 25th January 2011 containing an arbitration clause (clause 9) which provided that the arbitrator would be appointed by the assignee (the respondent). Disputes arose, and the applicant issued a notice on 10th February 2014 calling upon the respondent to appoint an arbitrator. The respondent, by letter dated 21st February 2014, alleged there was no arbitral dispute but without prejudice appointed Mr. Vishrant Tendulkar as arbitrator. The applicant suggested three other names on 11th March 2014, but the respondent confirmed the appointment of Mr. Tendulkar. The applicant then wrote to the arbitrator on 7th July 2014 to fix a preliminary hearing, but no action was taken. Consequently, the applicant filed this application. The respondent opposed, arguing that the arbitrator had been appointed and the application was not maintainable. The court noted that the appointed arbitrator had failed to act, and therefore, under section 11(6), the court could appoint a substitute arbitrator. The court rejected the respondent's contention that the applicant's consent was required, as the arbitration clause gave the respondent the right to appoint. The court appointed Mr. Justice S.J. Vazifdar (Retired) as the sole arbitrator to adjudicate the disputes.
Headnote
A) Arbitration Law - Appointment of Arbitrator - Section 11(6) Arbitration and Conciliation Act, 1996 - Failure of appointed arbitrator to act - Applicant sought appointment of arbitrator under section 11(6) after respondent appointed an arbitrator who failed to act - Court held that since the appointed arbitrator failed to act, the court could appoint a substitute arbitrator under section 11(6) - Held that the applicant's consent to the appointment was not required as the arbitration clause gave the respondent the right to appoint (Paras 1-6).
Issue of Consideration
Whether the court should appoint an arbitrator under section 11(6) of the Arbitration and Conciliation Act, 1996 when the respondent has appointed an arbitrator but the arbitrator has failed to act.
Final Decision
The court allowed the application and appointed Mr. Justice S.J. Vazifdar (Retired) as the sole arbitrator to adjudicate the disputes between the parties.
Law Points
- Arbitration agreement
- appointment of arbitrator
- failure to act
- section 11(6) Arbitration and Conciliation Act
- 1996
