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Petitioner’s case failed to invoke Court’s jurisdiction under Section 11(6) of the Arbitration and Conciliation Act: Gujarat High Court

This Court being not the “Court” as falling within the meaning of Clause (e) of Section 2(1) of the said Act, the prayer sought for quashing and setting aside the appointment of respondent No.2 as the Arbitrator under Section 14 of the said Act, on the ground that the mandate of the Arbitrator has stood terminated, also cannot be granted. This was said in the case of Escort Security And Personnel Services V Deendayal Port Trust [R/Petn. under Arbitration Act No. 130 of 2019] by Ms. Justice Bela M. Trivedi in the High Court of Gujarat. 

The facts of the case are that an Arbitration Petition has been filed by the petitioner, invoking Section 11(6) and Section 14 of the Arbitration and Conciliation Act, 1996. The petitioner is seeking the following reliefs (a) To quash and set aside the appointment of respondent No.2 as Sole Arbitrator to adjudicate the disputes between the petitioner and respondent No.1 (2) To appoint any former Judge of the High Court or the Supreme Court as Sole Arbitrator to constitute the Arbitral Tribunal and adjudicate disputes between the parties under the aforesaid contract

The petitioner contended the respondent No.1, who falls under the category specified in the 7th Schedule was ineligible to be appointed as an Arbitrator in view of Section 12(5) of the said Act, and therefore, he could not have appointed the respondent No.2 as an Arbitrator. It was further contended that, the High Court has the jurisdiction under Section 11(6) of the said Act to nullify the appointments made by the authorities when there is a failure of procedure or where the appointment is ex facie invalid or where there is ex facie contravention of the provisions of the Arbitration Clause

The respondent contended that the Section 14 would come into play only when the Arbitrator becomes de jure or de facto unable to perform his functions, however, in the instant case the Arbitrator appointed at the request of the petitioner is neither ineligible nor disqualified as per 7th Schedule. So, there is no cause of action could be said to have arisen for invoking Section 11(6) of the said Act.

The Court referred to the case of Indian Oil Corporation Limited Vs. Raja Transport (P) Limited [(2009) 8 SCC 520], wherein it was said that “the appointment procedure has been agreed between the parties, but if the cause of action for invoking the jurisdiction of the Chief Justice or his designate under Clauses (a), (b) or (c) of Sub­section (6) of Section 11 has not arisen, then the question of the Chief Justice or his designate exercising power under Sub­section (6) does not arise”.

Furthermore, the Court said that “the appointment procedure was agreed between the petitioner and the respondent No.1, and the respondent No.1 has not only followed the procedure as agreed, but has followed the same as requested by the petitioner. The petitioner failed to point out as to how the case of the petitioner would fall under Clause (a),(b) or (c) of sub­section (6) Section 11  of , so as to invoke the jurisdiction of this Court to appoint an Arbitrator under Section 11(6) of the Act”. Hence, the petition was dismissed.

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