SHANE DUFF Vs. ESSEL SPORTS PRIVATE LIMITED

JUDGEMENT

(1.) By these petitions filed under section 11 and section 15(2) of the Arbitration & Conciliation Act, 1996 (for short hereinafter referred to as Act) the applicants seek an order and direction to substitute the sole arbitrator. The facts of all the aforesaid mattes are identical and the issue involved being common, all the above matters were heard together and are being disposed of by a common order.

(2.) Both the parties have addressed this court on the basis of the facts in Arbitration (L) No. 49 of 2013 and the same are therefore, summarized as under :

(3.) Ms. Patil, the learned counsel appearing for the applicant submits that though there was arbitration agreement, under clause 21 of the agreement entered into between the parties, by consent of both the parties, this court in Company petition had appointed Dr. Birendra Saraf as arbitrator. It is submitted that as the learned arbitrator had withdrawn from his office under section 15(1)(a) of the Arbitration Act, in view of section 15(2), substituted arbitrator shall be appointed according to rules that were applicable to appointment of arbitrator being replaced. It is submitted that as Dr. Birendra Saraf was appointed by this court in Company Petition, the learned arbitrator having withdrawn from his office, the substituted arbitrator shall be appointed by the court exercising powers under section 15(2) of the Act. It is submitted that as the respondent did not agree to any of the names suggested by the applicant for appointment of the substituted arbitrator, the applicant has filed the present proceedings under section 11(6) of the Arbitration Act and thus the arbitrator appointed by the respondent by taking shelter under clause 21 of the agreement is totally illegal. It is submitted that it should be thus treated that the vacancy has arisen in view of the withdrawal of Dr. Birendra Saraf from the office as arbitrator and the respondent having failed to agree to appoint substituted arbitrator, this application filed under section 11(6) read with section 15(2) of the Act is maintainable and only Hon'ble Chief Justice or his designate can appoint the arbitrator under section 11(6) of the Act.