TaxTMI 
TaxTMI 
2007 (8) TMI 652
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.... (in short 'the Act'). 3. To answer the question involved in this appeal, it may not be necessary to delve the entire facts leading to the filing of the present appeal. Suffice it say that in response to an invitation to tender inquiry No. A.M-5/RC-14100105/ 072003/ WT/ BTYS/ Defence/ 2003-04/ 75 for supply of battery secondary lead acid, an offer dated 7.10.2002 was submitted which was revised by letter dated 8.4.2003. On the basis of the revised offer dated 8.4.2003 a rate contract No. AM-5/RC-14100105/ 072003/ WT/ BTYS/ DEF/ 2003-04/ 75/ BHARAT/ COAC/ 185 dated 5.5.2003 for the period 5.5.2003 to 16.3.2004 was executed between the appellant and the respondent. 4. Clause 12 of rate contract entered into between the parties contained a p....
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.... issue the necessary amendments on account of price variation with respect to the above mentioned quarters or appoint an arbitrator within 30 days. The notice dated 7.6.2005 was acknowledged by the appellant vide acknowledgement slip bearing No. 26110 dated 9.6.2005. Having not complied with the notice, another notice dated 2.1.2006 was issued by the respondent invoking the arbitration agreement and seeking appointment of arbitrator. The second notice was also acknowledged by the appellant by slip no. 33190 dated 3.1.2006. 5. Despite the aforesaid notices and the receipt thereof, the appellant neither resolved the disputes between the parties nor appointed an arbitrator within 30 days from the receipt of the request to do so, compelling th....
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....neral of Supplies & Disposals as aforesaid should act as Arbitrator and that, if for any reason that is not possible, the matter is not to be referred to arbitration at all." 7. Having stated the brief facts in a nut-shell, we may now note a few important dates, which are relevant for the purpose of proper adjudication of the present controversy: (a) Notices of appointment of arbitrator were issued on 7.6.2005 and 2.1.2006 respectively, which were duly received by the appellant with acknowledgment. (b) The appellant failed to appoint an arbitrator within 30 days from the date of receipt of request to do so from the respondent. (c) On 30.3.2006, the respondent filed Section 11(6) petition before the High Court. (d) The High Court, by the ....
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.... making an appointment of the arbitrator in terms of Clause 24 of the agreement after Section 11(6) petition is filed by the respondent. Once Section 11(6) petition is filed before the Court, seeking appointment of an arbitrator, the power to appoint an arbitrator in terms of arbitration clause of the agreement ceases. 10. Mr. Malhotra, learned ASG referred to the decision of a three-Judge Bench of this Court in Union of India And Another (appellant) v. M.P. Gupta (respondent) (2004) 10 SCC 504, wherein this Court held that since there was express provision contained that two gazetted railway officers shall be appointed as arbitrators, Justice P.K. Bahri could not be appointed by the High Court as the sole arbitrator. This case was not in ....
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....agreement loses the right to do so. While taking this view, the Court had referred to the judgment rendered in Datar Switchgears Ltd. (appellant) v. Tata Finance Ltd. and Another (2000) 8 SCC 151 wherein at page 158 (para 19) SCC, this Court held as under: "19. So far as cases falling under Section 11(6) are concerned - such as the one before us no time limit has been prescribed under the Act, whereas a period of 30 days has been prescribed under Section 11(4) and Section 11(5) of the Act. In our view, therefore, so far as Section 11(6) is concerned, if one party demands the opposite party to appoint an arbitrator and the opposite party does not make an appointment within 30 days of the demand, the right to appointment does not get automati....