Arbitrator appointment outside the agreed procedure is invalid and does not bar Section 11(6) recourse.

Where the parties had agreed a specific arbitral appointment procedure under the arbitration clause and the ICADR Rules, a unilateral appointment made outside that mechanism was invalid and could not bar recourse to the court under Section 11(6) of the Arbitration and Conciliation Act, 1996. The Supreme Court held that such a non-conforming appointment was non est, so the petition under Section 11(6) remained maintainable and the court could secure constitution of the tribunal in accordance with the agreed procedure.

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Issues: (i) Whether the petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 was maintainable despite the respondent having already appointed an arbitrator; (ii) whether the respondent's appointment of its arbitrator was valid under the agreed contractual procedure and the ICADR Rules, 1996.

Issue (i): Whether the petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 was maintainable despite the respondent having already appointed an arbitrator.

Analysis: The contractual mechanism required the respondent to appoint its arbitrator within the stipulated time and in accordance with the agreed ICADR procedure. An appointment made contrary to that agreed procedure could not be treated as a valid appointment so as to bar the Court's jurisdiction under Section 11(6). The authorities relied on by the respondent were distinguished on the basis that, in those cases, the appointment was in conformity with the agreed procedure or the party had submitted to the arbitral forum.

Conclusion: The petition under Section 11(6) was maintainable.

Issue (ii): Whether the respondent's appointment of its arbitrator was valid under the agreed contractual procedure and the ICADR Rules, 1996.

Analysis: The arbitration clause, read with Rules 5 and 35 of the ICADR Rules, 1996, required appointment from the panel procedure contemplated by ICADR. The respondent's unilateral appointment of an arbitrator outside that procedure was not contemplated by the parties and therefore could not be accepted as a valid appointment. Such an appointment was contrary to the agreed mechanism and could not defeat the petitioner's invocation of Section 11(6).

Conclusion: The respondent's appointment was invalid and non est.

Final Conclusion: The Court exercised its power to secure constitution of the arbitral tribunal in accordance with the agreed mechanism and appointed an arbitrator on behalf of the respondent so that the arbitration could proceed.

Ratio Decidendi: Where the parties have agreed on a specific procedure for appointment of arbitrators, a unilateral appointment made in deviation from that procedure is invalid and does not bar recourse to the Court under Section 11(6) of the Arbitration and Conciliation Act, 1996.

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