Arbitrator appointment under section 11(6) remains valid if made before the court application, without requiring party concurrence.

Under section 11(6) of the Arbitration and Conciliation Act, the opposite party does not forfeit its right to appoint an arbitrator merely because the appointment is made more than 30 days after the demand, so long as it is made before the section 11 application is filed; the appointment remained valid. The arbitration clause giving the lessor power to nominate the sole arbitrator did not require the appellant's prior consent or concurrence, because the clause contained no such condition and nomination was treated as sufficient appointment for contractual purposes. The agreed procedure was therefore not shown to have failed, and the section 11 request was rejected.

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Issues: (i) Whether, in a case falling under section 11(6) of the Arbitration and Conciliation Act, 1996, the opposite party loses its right to appoint an arbitrator merely because the appointment is not made within 30 days of the demand, although the appointment is made before the application under section 11 is filed; (ii) Whether the expression "nominated by the Lessor" in the arbitration clause required the lessor to obtain the appellant's concurrence before appointing the arbitrator.

Issue (i): Whether, in a case falling under section 11(6) of the Arbitration and Conciliation Act, 1996, the opposite party loses its right to appoint an arbitrator merely because the appointment is not made within 30 days of the demand, although the appointment is made before the application under section 11 is filed.

Analysis: Section 11(6) contemplates intervention only where there is a failure of the agreed appointment procedure. Unlike sections 11(4) and 11(5), section 11(6) does not prescribe a rigid 30-day limit. The Court held that if the opposite party appoints an arbitrator after 30 days of the demand but before the party seeking appointment moves the Court under section 11, the appointment remains effective and the right to appoint is not automatically forfeited. The authorities relied upon by the appellant were distinguished because in those cases the appointment had been made after the section 11 application was filed.

Conclusion: The right to appoint an arbitrator under section 11(6) does not stand forfeited merely on expiry of 30 days from the demand, provided the appointment is made before the section 11 application is filed; the respondent's appointment was valid.

Issue (ii): Whether the expression "nominated by the Lessor" in the arbitration clause required the lessor to obtain the appellant's concurrence before appointing the arbitrator.

Analysis: The arbitration clause conferred discretion on the lessor to nominate the sole arbitrator and did not require prior consultation, consent, or concurrence of the appellant. On the ordinary meaning of "nomination", the act of nominating was treated as equivalent to appointment for the contractual purpose. In the absence of an express stipulation for concurrence, the appellant could not insist on participation in the selection.

Conclusion: No concurrence of the appellant was required, and the lessor validly nominated the arbitrator in terms of the arbitration clause.

Final Conclusion: The Court upheld the validity of the arbitrator's appointment, held that there was no failure of the agreed procedure, and sustained the rejection of the section 11 application.

Ratio Decidendi: Under section 11(6) of the Arbitration and Conciliation Act, 1996, the opposite party's right to appoint an arbitrator is not automatically extinguished by lapse of 30 days from the demand; it continues until the aggrieved party files an application under section 11, and a contractual nomination clause need not involve the other party's concurrence unless expressly provided.

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