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Judgment
J.D. Kapoor, J.—This is an application u/s 11(6)(b) of the Arbitration and Conciliation Act, 1996 seeking appointment of the third Presiding Arbitrator to complete the constitution of the Arbitral Tribunal for resolution of the inter se dispute between the petitioner and respondent No. 1 arising out of the contract dated 1st June 1996.
Admittedly, Article 131 of the aforesaid contract between the parties provided that the Provision of the Indian Arbitration Act 1940 and the rules made there under and any statutory modifications thereof, shall be deemed to have been formed part of the contract. Article 132 further provided as under:
"Unless otherwise specified any dispute or difference whatsoever arising out of this contract which is not settled by mutual consultation shall be referred to two Arbitrators, one to be appointed by the SELLER, and the other to be appointed by the BUYER. The two Arbitrators shall appoint and Umpire, in advance of their consideration of any point of dispute. The venue of arbitration shall be Delhi/Ahmedabad (Gujarat), by whatever name or status it is called."
On 5th February, 1999, the petitioner appointed its own Arbitrator whereas the respondent appointed its Arbitrator on 28th April, 1999. However, the parties could not agree on the Presiding Arbitrator. As per provision of Section 11(6)(b) where the parties, or the two appointed Arbitrators, fail to reach and agreement expected of them under that procedure any of the party may approach or any person or institution designated by him to take the necessary measures, unless the agreement on the appointment. However, the parties have agreed to the procedure for appointing the Arbitrator or Arbitrators by virtue of Articles 131 and 132 of the agreement.
As is apparent from the aforesaid facts the two Arbitrators appointed by the parties have not been able to appoint the third presiding Arbitrator since April, 1999.
The main grievance of the respondent is to the place of arbitration as according to him one civil suit between the parties is pending at Ahemdabad wherein petitioner has sought recovery of Rs. 5 crores and the respondent would be greatly inconvenienced if the entire voluminous record is brought to Delhi. It is contended that respondent has already suffered at the hands of the petitioner because of the latter having stopped the supply of the gas and having rendered 400 employees of the respondent jobless.
Admittedly both the parties had agreed on the place of Arbitration either at Delhi or at Ahmedabad. Both of them have appointed their own Arbitrators, though one of them, namely, Justice S.K. Desai appointed by the respondent has expressed his inability to act as an Arbitrator on account of his failing health.
In view of the given circumstances and the failure of the two parties as well as two appointed Arbitrators to reach an agreement to appoint a Presiding Arbitrator as an Umpire and keeping in view the hardship and inconvenience the respondent would suffer and the inordinate delay the process of appointing the Presiding Tribunal has taken coupled with the fact that the parties are already interlocked in civil suit at Ahmedabad and all documents etc. between the parties were executed at Ahmedabad and supplies were made at Ahmedabad persuade me to appoint Hon''ble Mr. Justice B.K. Dewan, retired Chief Justice of Gujarat High Court who is stationed at Ahmedabad as Presiding Arbitrator. However, the respondent shall appoint his own Arbitrator within a Mont in view of the inability expressed by Justice S.K. Desai to act as an Arbitrator.
As regards the place of Arbitration, the power vests with the Arbitral Tribunal u/s 20 of the Act which is and under:
"20. Place of arbitration - (1) The parties are free to agree on the place of arbitration.
(2) Failing any agreement referred to in Sub-section(1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.
(3) Notwithstanding Sub-section (1) or Sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.
Petition stands disposed of.
dusty.