JUDGMENT
1. The parties to the proceedings entered into an agreement on 19-1-1996 whereby the petitioner was appointed as Commissioning Agent to promote the sale of the product of flush doors; a product of the opposite parties in various divisions including Faizabad, Lucknow, Gorakhpur, Varanasi, Allahabad, Azamgarh, Bareilly and Kanpur etc. This agreement was valid for a period upto 31-3-1997. The agreement was extended for a period ending 31-3-2002 vide agreement dated 18-10-1996. There is Arbitration Clause in the agreement, which is as follows :--
"14. That in case of any dispute arises, the same shall be referred to the sole arbitration of the Managing Director, Garhwal Mandal Vikas Nigam Ltd. 74/1 Rajpur Road, Dehradun, U.P. whose decision shall be final and binding on the both the parties."
2. The aforesaid agreement was executed in Dehradun which was in Uttar Pradesh on the date of the execution of the agreement.
3. A dispute arose between the parties. On 5-1-2000, the petitioner made a written request for making a reference to the arbitrator for decision. This letter was addressed to Garhwal Mandal Vikas Nigam through its General Manager and the Managing Director, Garhwal Mandal Vikas Nigam. Instead of entering into the reference the opposite parties conveyed to the petitioner's firm that no amount is due to the petitioner's firm. On 3-10-2001, the petitioner moved an application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as 'Act'). Admittedly the General Manager (Administration) Garhwal Mandal Vikas Nigam referred the matter for arbitration to the Managing Director on 19-2-2002. The petitioner filed objection under Section 13(2) before the Arbitrator and conveyed to the Managing Director working as Arbitrator that in the absence of the reference of the dispute to the Arbitrator by the General Manager, Garhwal Mandal Vikas Nigam within the prescribed period, the petitioner had filed an application under Section 11(6) of the Act for appointment of the Arbitrator before the Lucknow Bench of Allahabad High Court.
4. An application of the petitioner under Section 11(6) of the Act remained pending and it has been informed by the supplementary affidavit that the Managing Director, Garhwal Mandal Vikas Nigam who was designated Arbitrator in the agreement has given an award on 11-7-2003.
5. The opposite parties have filed the counter affidavit and opposed this application on several grounds. Firstly, that the petitioner has not challenged the agreement and in view of Clause 14 of the agreement, the Managing Director of the Nigam is the only person who can act as Arbitrator between the parties and therefore, the petition under Section 11 of the Act is totally misconceived because once the arbitrator is already decided between the parties, the only thing remains to be that he has to proceed with the arbitration and that too has already been done by the Arbitrator. Secondly, the petitioner can file an application for appointment of the Arbitrator before the Chief Justice under Section 11(5) of the Act. Section 11(5) of the Act is as follows :--
11(5). Falling any agreement referred to in Sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party by the Chief Justice or any person or institution designated by him."
6. In view of the above provisions, it has been contended that if the parties do not agree on a procedure for appointing the Arbitrator or Arbitrators under Sub-section (2) of Section 11 only then the provisions of Sub-section (5) may be invoked.
7. Thirdly, it has been contended by the opposite parties that under Section 11(12)(b) of the Act, a reference to the Chief Justice under Sub-section (5) of the Act shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to Section 2(1)(e) of the Act is situate. Section 11(12)(b) of the Act is as follows :--
"Where the matters referred to in Sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to "Chief Justice" in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal civil Court referred to in Clause (e) of Sub-section (1) of Section 2 is situate and, where the High Court itself is the Court referred to in that clause to the Chief Justice of that High Court."
8. Section 2(1)(e) is as follows :--
" 'Court' means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes."
9. In view of the aforesaid provisions, it has been contended by the opposite parties that the agreement was executed at Dehradun which is situated in the State of Uttaranchal. The jurisdiction in such cases in the matter of suit would be determined by the provisions of Section 20 C.P.C., which is as, follows :--
"20. Other suits to be instituted where defendants reside or cause of action arises -- Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arise.
(Explanation) -- A Corporation shall be deemed to carry on business at its sole or principal office in (India) or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
10. According to the opposite parries since the suit would have been instituted in the Principal Civil Court at Dehradun, therefore, the reference to the Chief Justice under Section 11(12)(b) means the Chief Justice of Uttaranchal High Court.
11. Fourthly, the petitioner had already submitted its reply before the arbitrator designated in the agreement under Section 13(2) of the Act. It means that the petitioner had accepted the jurisdiction of arbitral Tribunal and the question of jurisdiction of arbitral Tribunal shall be decided by the Tribunal itself. Now the Arbitrator has given the award. The award is a decree as provided under Section 36 of the Act and the petitioner has the remedy under Section 34 by moving an application for setting aside the arbitral award. This decree cannot be set aside in the proceedings under Section 11 of the Act because the proceedings are administrative in nature.
12. I have heard Shri N.K. Seth, Advocate for the applicant and Shri Umesh Chandra for the opposite parties at length on the contentions raised before passing an order appointing an arbitrator under Section 11 of the Act.
13. So far as the first and second contentions raised by the learned counsel for the opposite parties are concerned, after seeing the counter affidavit, it appears to me that the opposite parties are under the impression that the applicant has moved this application under Section 11(5) of the Act. The position is quite different after seeing the contents of the application in the instant case. For this purpose first of all, I would like to refer that there are three sub-sections to Section 11 of the Act in which there is a provision when Chief Justice can appoint the Arbitrator. For this purpose, I would like to refer Section 11(7)(11) of the Act which are as follows :--
11. (7) A decision on matter entrusted by Sub-section (4) or Sub-section (5) or Sub-section (6) to the Chief Justice or the person or institution designated by him is final.
(11) Where more than one request has been made under Sub-section (4) or Sub-section (5) or Sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request."
14. The provisions under Sub-sections (7) and (11) cited above make it amply clear that the request to the Chief Justice can be made either under Sub-section (4) or Sub-section (5) or Sub-section (6) to Section 11 of the Act; For this purpose I cite all these subsections as follows :--
"11(4). If the appointment procedure in Sub-section (3) applies and --
(a) a party fails to appoint an arbitrator within the thirty days from, the receipt of a request to do so from the other party; or
(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their, appointment., the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
(5) Failing any agreement referred to in Sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.
(6) Where, under an appointment procedure agreed upon by the parties,--
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him or sit under the procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment."
15. Sub-section (4) of Section 11 of the Act applies when the appointment procedure given under Sub-section (3) applies and either a party fails to appoint an arbitrator within thirty days or the two appointed arbitrators fails to agree on the third appointed arbitrator.
16. Sub-section (5) of Section 11 of the Act applies when if the parties fails to act in accordance with the arbitration clause in the agreement within thirty days from receipt of a request by one party from the other party, the appointment shall be made by the Chief Justice. Sub-section (6) of Section 11 of the Act applies in three contingencies in a case wherein an appointment procedure is already agreed upon by the parties. These three contingencies are as follows :--
(a) if a party fails to act as required under the procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under the procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure."
17. In either of the aforesaid three contingencies a party may request the Chief Justice to appoint an arbitrator.
18. Now, I refer Clause 14 of the agreement cited above. This Clause does not provide the procedure how the arbitrator shall be appointed. This Clause Indicates that both the parties had agreed that in case of dispute, the Managing Director of the Corporation shall be the sole arbitrator. When the agreement is silent how a party shall proceed then the procedure as prescribed under the Act should be followed. Here in the instant case the applicant sent a request to the opposite party No. 1 on 5-1-2000 and specifically requested for the reference of the dispute to the arbitrator. The opposite party No. 1 remained silent on the reference of the dispute to the arbitrator. The applicant initially did not demand any thing against Clause 14 of the agreement. In reply, the opposite party No. 1 rejected the claim on 23-3-2000. In accordance with the arbitration clause, the Managing Director of the Corporation was to act as Arbitrator. The Managing Director did not act as Arbitrator before filing of this application on 3-10-2001. It appears to me that there was a reference for referring the matter to the agreed arbitrator. The agreed arbitrator did not enter into the reference. In these circumstances, it is only under Section 11 Sub-section (6) that a party may make request to the Chief Justice for appointment of the arbitrator.
19. Both the learned counsel for the parties has referred a decision of the Supreme Court in Datar Switchgears Ltd. v. Tata Finance Ltd., (2000) 8 SCC 151 : (2000 AIR SCW 3925). The learned counsel for the opposite parties has referred this decision to show that the finding of the Supreme Court in which it has been held that the appointment of the Arbitrator by the respondents is valid even after expiry of thirty days from the date of the demand. The learned counsel for the opposite parties has further referred the observations of the Supreme Court in which it has been said that as to whether thirty days time for the purpose of Sub-section (4) and Sub-section (5) is mandatory or not has not been decided. The learned counsel for the applicant has also relied on this Judgment by saying that it has been clearly held by the Supreme Court that the ratio of this decision shall not be in support of the contentions of the opposite parties. For this purpose the learned counsel for the applicant has referred the findings of the Supreme Court in paras 19 and 20 of the judgment which are as follows :--
"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 thirty 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 automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the Court under Section 11, that would be sufficient. In other words, in cases arising under Section 11(6), if the opposite party has not made an appointment within 30 days of demand, the right to make appointment is not forfeited but continues, but an appointment has to be made before the former files application under Section 11 seeking appointment of an arbitrator. Only then the right of the opposite party ceases. We do not, therefore, agree with the observation in the above judgments that if the appointment is not made within 30 days of demand, the right to appoint an arbitrator under Section 11(6) is forfeited.
20. In the present case the respondent made the appointment before the appellant filed the application under Section 11(6) though it was beyond 30 days from the date of demand. In our view, the appointment of the arbitrator by the respondent is valid and it cannot be said that the right was forfeited after expiry of 30 days from the date of demand."
20. In the Instant case as stated above the opposite parties have made reference to the arbitrator long after filing of the application under Section 11(6) of the Act on 19-2-2002. In view of the decision of the Supreme Court cited above, no doubt, there is no bar of 30 days for reference to the arbitrator by one party from the date of the request of the other party; as held by the Supreme Court but the right to appointment of the arbitrator is fortified after filing of the application under Section 11(6) of the Act.
21. The learned counsel for the applicant has referred a decision in Larsen and Toubro Limited v. Konkan Railway Corporation Limited, 1999 (2) Arbi LR 354 (Bombay), the relevant portion of that decision is as follows :--
"11. From the above discussion, it is clear that when a party applies to the Chief Justice or the person designated by him under Sub-section (6) of Section 11 of the Act for appointment of arbitrator/arbitrators on the failure of the appointing authority to act as required under the agreed procedure, it is the duty of the Chief Justice or the person designated by him to appoint arbitrator/arbitrators himself having due regard to the considerations set out in Sub-section (8) of Section 11 of the Act which, inter alia, contemplates appointment of independent and impartial arbitrator. The power of the Chief Justice or the person designated by him under Sub-section (6) of Section 11 of the Act is to take the necessary measure himself, that is, to make the appointment and not merely order the recalcitral party or the appointing authority to act."
22. In Delhi Development Authority v. Bumbrah Electrical Co., 2002 (Suppl) Arbi LR 581 (Delhi), the respondent applied for appointment of arbitrator and the petitioner had not sent any reply, the respondent applied for appointment of arbitrator before the Chief Justice. Subsequently, the petitioner appointed the sole arbitrator in accordance with agreement. The Delhi High Court relied on the decision of the Supreme Court in Datar Switchgears Limited v. Tata Finance Ltd., (2000 AIR SCW 3925) (supra) and relying on the ratio of the judgment as mentioned in para 19 of the judgment cited above held that right to make appointment of the arbitrator shall not be forfeited if the appointment has been made before moving an application under the Act by the other party. The same view has also been followed in Nucon India (P) Limited v. Delhi Vidyut Board (DESU), AIR 2001 Delhi 227. The relevant portion of that decision is as follows :--
"20. The conclusion thus derived from the findings in the above mentioned Supreme Court case is that under Section 11(6) of the Act where no time limit is prescribed if the opposite party has not made an appointment within a period of thirty days of the demand to appoint an arbitrator, the right to appoint is not forfeited and continues, but such right of the opposite party ceases to exist or forfeited if an application under Section 11 of the Act is moved for appointment of an arbitrator. That is to say, that an appointment has to be made by the opposite party of an arbitrator before filing of the application under Section 11(6) of the Act. If, the appointment is made after the filing of the application under Section 11 of the Act then such an appointment is a nullity and in fact no appointment in the eye of law. It is non-est."
23. The learned counsel for the applicant has further relied on a decision of Andhra Pradesh High Court in Rajeev Traders, Tarnaka v. General Manager, South Central Railway, Secunderabad, 2003 (1) Arbi LR 624 (AP). In this case after filing of the applications under Section 11 of the Act, the respondents appointed the sole arbitrator. The Andhra Pradesh High Court held that the respondents have forfeited their right to appoint arbitrator after filing application under Section 11 of the Act and such appointment of arbitrator, made by the respondents, is no appointment and is non-est in the eye of law. The same view is taken in Sharma and Sons v. Engineer-in-Chief, Army Headquarters, New Delhi, 2000(2) Arbi LR 31 (AP), wherein, it was held that the appointment made by the appointing authority during the pendency of the application before the High Court is no appointment in the eye of law and such appointment is non-est.
24. In Konkan Railway Corporation Ltd. v. Rani Construction Pvt. Limited, 2002 (1) Scale 465 : (AIR 2002 SC 778) it was held by the Supreme Court that there is nothing in Section 11 that requires the party other than the party making the request to be noticed. It does not contemplate a response from that other party. It does not contemplate a decision by the Chief Justice or his designate on any controversy that the other party may raise, even in regard to its failure to appoint an arbitrator within the period of thirty days. That the Chief Justice or his designate has to make the nomination of an arbitrator only if the period of thirty days is over does not lead to the conclusion that the decision to nominate is adjudicatory. In its request to the Chief Justice to make the appointment the party would aver that this period has passed and ordinarily, correspondence between the parties would be annexed to bear this out. This is all that the Chief Justice or his designate has to see.
25. In B.T. Patil and Sons Belgaum (Construction) Pvt. Ltd. v. Konkan Railway Corporation Ltd., 1998 (Suppl) Arbi LR 189, it was held that the provisions of Sections 11(6) and (8) give wider jurisdiction to the Chief Justice than the provisions of Section 8 of the repealed Arbitration Act. In the aforesaid case the Court held that when the notice was given to the opposite contracting party to appoint an Arbitrator in terms of the contract and if no action had been taken, it must be deemed that he neglected to act upon the contract and the Court gets jurisdiction and power to appoint an Arbitrator.
26. In view of the aforesaid catena of decisions by various High Courts, and Hon'ble Supreme Court, I am of the view that this contention of the opposite party, that it is only the arbitrator named in the Arbitration Clause who can act as arbitrator, is misconceived. This contention of the opposite party is also mis-conceived. That the applicant can only file an application under Section 11(5) of the Act and the application under Section 11(5) can be moved only if, a party does not agree on a procedure for appointing the arbitrator. As stated above the various provisions under Section 11 of the Act are such that a party to the agreement can request the Chief Justice either in Sub-section (4), Sub-section (5) and Sub-section (6) of Section 11 of the Act. This application has been moved after a long gap after making request for appointment of the arbitrator on 5-1-2000 and the matter was referred to the arbitration on 19-2-2002.
27. The third contention of the opposite party is with regard to the jurisdiction according to the opposite parties, in view of the provisions under Section 11(12)(b) of the Act read with Section 2(1)(e), it is the Court at Dehradun which has jurisdiction if it would have been the subject matter of the suit. Therefore, the reference to the Chief Justice shall be construed as a reference to the Chief Justice, Uttaranchal High Court within whose local limits the principal Civil Court at Dehradun is situate.
28. As stated above, Section 2(1)(e) defines the Court. According to this definition clause the jurisdiction lies in the Court where the same subject-matter had been the subject-matter of the suit. For this purpose, the jurisdiction is to be decided in accordance with the provisions under Section 20 C.P.C. cited above. Admittedly, the agreement was executed between the petitioner-firm and the opposite parties at Dehradun and the petitioner was appointed as a Commissioning Agent to promote the sale of flush doors in various divisions including Faizabad, Lucknow, Gorakhpur, Varanasi, Allahabad, Azamgarh, Barellly and Kanpur etc. and the commission shall be payable on bill on monthly basis. The petitioner performs the business within the jurisdiction of Allahabad High Court. The appointment of the petitioner-firm as commissioning agent has been made for Lucknow and Faizabad divisions and other divisions in Uttar Pradesh. The claim of the petitioner for payment of commission has been refused to the petitioner-firm at Lucknow. The petitioner carries on business with the Head Office at Lucknow. The payments were to be made at Lucknow and the contract was to be performed at Lucknow. All these facts are not denied. The contention of the opposite parties is that since the agreement was executed at Dehradun, it is the Court at Dehradun which has the jurisdiction.
29. The agreement between the parties does not contain any jurisdiction clause. There is no clause excluding the jurisdiction of any Court. In A.B.C. Laminart Pvt. Limited v. A.P. Agencies, Salem, (1989) 2 SCC 163 : (AIR 1989 SC 1239), it has been held that the jurisdiction of the Court in the matter of contract will depend on the sites of the contract and the cause of action arising through connecting factors. Under Section 20 C.P.C. subject to the limitation stated therefore, every suit shall be instituted in a Court within the local limit of whose jurisdiction the cause of action wholly or in part arises. In A.B.C. Laminart Pvt. Limited (supra) case, the Supreme Court referred explanation III of Section 20 C.P.C. which has now been omitted and observed that Explanation III has now been omitted but nevertheless it may serve as a guide. It was held that in the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract and of, its breach, so that the suit may be filed either at the place where the contract was made or at the place where It should have been performed and the breach occurred. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a Court within whose jurisdiction the acceptance was communicated. So long as the parties to a contract do not oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law. It cannot be said that the parties have by their contract ousted the Jurisdiction of the Court.
30. In Patel Roadways Limited, Bombay v. Prasad Trading Company, (1991) 4 SCC 270 : (AIR 1992 SC 1514), it was held that a suit against a Corporation could be instituted either at the place of its sole or principal office or at any other place where the cause of action arises. The relevant portion of the this judgment is as follows :--
"If the intention of the legislature was, as Is said on their behalf, that a suit against a Corporation could be instituted either at the place of its sole or principal office (whether or not the Corporation carries on business at that place) or at any other place where the cause of action arises, the provisions of Clauses (a), (b) and (c) together with the first part of the Explanation would have completely achieved the purpose. Indeed the effect would have been wider. The suit could have been instituted at the place of the principal office because of the situation of such office (whether or not any actual business was carried on there). Alternatively, a suit could have been instituted at the place where the cause of action arose under Clause (c) (irrespective of whether the Corporation had a subordinate office in such place or not). This was, therefore, not the purpose of the Explanation. The Explanation is really an Explanation to Clause (a). It is in the nature of a clarification on the scope of Clause (a) viz. as to where the Corporation can be said to carry on business. This, it is clarified, will be the place where the principal office is situated (whether or not any business actually is carried on there) or the place where a business is carried on giving rise to a cause of action (even though the principal office of the Corporation is not located there) so long as there is a subordinate office of the Corporation situated at such place. The linking together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention of the legislature was that, in the cause of a Corporation, for the purposes of Clause (a), the location of the subordinate office, within the local limits of which a cause of action arises, is to be the relevant place for the filing of a suit and not the principal place of business. If the intention was that the location of the sole or principal office as well as the location of the subordinate office (within the limits of which a cause of action arises) are to be deemed to be places where the Corporation is deemed to be carrying on business, the disjunctive "or" will not be there. Instead, the second part of the Explanation would have read "and, in respect of any cause of action arising at any place where it has a subordinate office, also at such place".
13. As far as we can see the interpretation which we have placed on this section does not create any practical or undue difficulties or disadvantage either to the plaintiff or a defendant Corporation. It is true that normally, under Clauses (a) to (c), the plaintiff has a choice of forum and cannot be compelled to go to the place of residence or business of the Corporation and can file a suit at a place where the cause of action arises. If a Corporation desires to be protected from being dragged into litigation at some place merely because a cause of action arises there it can save itself from such a situation by an exclusion clause as has been done in the present case. The clear intendment of the Explanation, however, is that, where the Corporation has a subordinate office in the place where the cause of action arises, it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. It would be a great hardship if, in spite of the Corporation having a subordinate office at the place where the cause of action arises (with which in all probability the plaintiff has had dealings), such plaintiff is to be compelled to travel to the place where the Corporation has its principal place. That place should be convenient to the plaintiff; and since the Corporation has an office at such place, it will also be under no disadvantage. Thus the Explanation provides an alternative locus for the Corporation's place of business, not an additional one."
31. Since in this case the part of cause of action has arisen within the Jurisdiction of Lucknow Bench of Allahabad High Court therefore, the contention of the opposite parties that the Chief Justice of Uttaranchal High Court has jurisdiction has no force and it is rejected.
32. The last contention of the opposite parties is that the designated arbitrator has already given the award which is a decree as provided under Section 36 of the Act. It has been further argued by the opposite parties that the proceedings under Section 11 of the Act are administrative in nature and the decree already passed by the arbitrator cannot be set aside. In my opinion, the award given by the Managing Director is without jurisdiction. His right to proceed ceases after moving of the application under Section 11 by the petitioner. This view is supported by the decisions in Datar Switchgears Ltd. v. Tata Finance Ltd. (2000 AIR SCW 3925) (supra) and Sharma and sons v. Engineer-in-Chief, Army Headquarters, New Delhi, (2000 (2) Arbi LR 31) (supra). The award given after moving of the application under Section 11 of the Act is non-est in the eye of law.
33. In Food Corporation of India v. Indian Council of Arbitration, (2003) 6 SCC 564 : (AIR 2003 SC 3011) relying on the ratio of the decision in Konkan Rly. Corporation Limited v. Mehul Construction Co., (2000) 7 SCC 201 : (AIR 2000 SC 2821), it was held that when the matter comes before the Chief Justice or his nominee under Section 11 it would not be appropriate for them to entertain any contentious issues between the parties and decide the same and that the decision of the Chief Justice or his nominee is merely an administrative order, the nature of the function performed by them being essentially to aid the constitution of an Arbitral Tribunal immediately, just by appointing an arbitrator without wasting any time.
34. Therefore, the application under Section 11(6) of the Act is allowed. I appoint Justice Kamleshwar Nath (Retired) as an arbitrator. He will get Rs. 3,000/- (Rs. Three thousand only) per day as fee along with other expenses to be borne by both the parties half and half. If, he conducts the meeting outside Lucknow at the request of either party, the daily fees and other expenses shall be borne half and half by both the parties. The applicant is directed to file the claim before the arbitrator within a period of three weeks. Application allowed.