Arbitrator appointment under Section 11 is unavailable when an existing arbitrator is already in office.

Section 11 of the Arbitration and Conciliation Act, 1996 was unavailable where an arbitrator was already in office and the arbitration clause had been acted upon. In that situation, the proper remedy for alleged failure by the existing arbitrator to act without undue delay was removal under section 14(1)(a), not a fresh appointment petition. Any challenge to a subsequent appointment on grounds of independence or impartiality had to be pursued through the challenge procedure under section 13. On those facts, the petition for appointment of an independent arbitrator was held not maintainable and was dismissed.

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Issues: Whether the Court could appoint an arbitrator under section 11(5) and section 11(6) of the Arbitration and Conciliation Act, 1996 when an arbitrator was already in office and whether the challenge to subsequent appointments was maintainable in the present petition.

Analysis: The arbitration clause had already been acted upon and Ram Kumar was in position as arbitrator when the notice demanding appointment of an arbitrator was issued. In that situation, the appointment mechanism under section 11(5) and section 11(6) was not attracted. If the existing arbitrator had failed to act without undue delay, the proper course was to seek removal under section 14(1)(a). Any objection to the later appointment of another arbitrator on the ground of independence or impartiality had to be pursued through the challenge procedure under section 13. The Court held that the reliance on the cited precedent did not assist the petitioner on these facts.

Conclusion: The petition seeking appointment of an independent arbitrator was not maintainable under section 11 and was dismissed.

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