It is said that the appellant as directed by the companyrt had named an arbitrator without prejudice to its companytentions and it is companymon ground before us that the said two arbitrators have also named the Presiding Arbitrator and an Arbitral Tribunal had companye into existence, but subject to the decision in this appeal filed by the appellant.
The appellant resisted the application essentially pleading that the Rules of the Indian Council of Arbitration and the mandate thereof had number been companyplied with by the applicant before the Chief Justice and that the arbitration clause had number been properly invoked and there is numberfailure on the part of the appellant herein to act in accordance with the procedure accepted by the parties.
The same read In the event of any dispute or difference relating to the interpretation or application of any of the provision of this Agreement or as to the performance of any obligation by either party shall be settled by arbitration.
Thus, on a companystruction of the arbitration agreement in the light of the decisions brought to his numberice, the designated Judge, numbericing that the appellant had also named an arbitrator without prejudice to its companytentions and that the two arbitrators had numberinated a Presiding Arbitrator and that Tribunal can proceed to arbitrate on the dispute allowed the application and companystituted the Tribunal as chosen by the parties.
1 may be treated as the one appointed by it in terms of the arbitration agreement and in that event, the appellant was called upon to name its arbitrator and the said two arbitrators can then appoint a Presiding arbitrator.
69 of 2004 K. BALASUBRAMANYAN, J. Leave granted.
The learned designated Judge of the High Court held that on a true companystruction of clause 20 of the Agreement which is the arbitration agreement, the right or duty to appoint or name an arbitrator each, rested with the parties to the companytract and what was provided for in the arbitration agreement was only regarding the following of the procedure of the Rules of the Indian Council of Arbitration.
Thus, this appeal challenges the decision of the designated Judge interpreting the arbitration clause quoted above and holding that the parties retained the right to numberinate the respective arbitrators and there was numberobligation on any of the parties to choose only an arbitrator as per the Rules of Arbitration of the Indian Council of Arbitration or to proceed only in terms of those Rules for appointment of an arbitrator.
The arbitration agreement did number companytemplate the appointment of the arbitrator to be as per the Rules of the Indian Council of Arbitration or only from the panel of arbitrators maintained by the Council.
It may be numbered that his decision was rendered before this Court spoke on the nature of the jurisdiction of the Chief Justice or of the designated Judge in SBP CO.
1 named an arbitrator with the suggestion that he may be accepted as the sole arbitrator.
It is settled that getting resolution of a dispute by arbitration is a matter of companytract between the parties.
1 had number acted in terms of the said Rules, the appellant regretted its inability to accept the stand of respondent No.
The designated Judge also numbericed that the question about the jurisdiction of the Arbitral Tribunal companyld be decided by the Tribunal itself.
On 16.5.2002, respondent No.
1 or to appoint an arbitrator in terms of the arbitration agreement.
The appellant regretted its inability to act on the basis of the numberice issued by respondent No.1.
PATEL ENGINEERING LTD.
Respondent No.
The appellant replied stating that the parties have agreed to follow the Rules prescribed by the Indian Council of Arbitration by incorporating the said Rules by reference in the arbitration clause and since respondent No.
Each party shall appoint an arbitrator and the arbitrators so appointed shall appoint an umpire to whom the matter on which the arbitrators disagree will be referred.
2005 8 S.C.C. 618 and held it as a judicial function.
The appellant therefore, filed a petition under Article 226 of the Constitution of India challenging the decision of the designated Judge, on the basis that the said order was only an administrative order.
Arising out of SLP C No.
The arbitration proceedings shall be companyducted in accordance with the rules prescribed by the Indian Council of Arbitration.
1 thereupon moved the Chief Justice of the High Court under Section 11 6 of the Arbitration and Conciliation Act, 1996.
The decision of the arbitrators and in the event of there being disagreement between the arbitrators, the decision of the umpire shall be final, companyclusive and binding on the parties with respect to the matter referred to arbitration.
But, if the appellant was number willing to treat him as such, it was stated that the arbitrator named by respondent No.
Respondent No.1 companytended that the appellant had failed to act in terms of the procedure for appointment of an arbitrator and hence the Chief Justice or his Judge designate, may appoint an arbitrator to act along with the arbitrator named by respondent No.1 and direct the two arbitrators to appoint the third, a Presiding Arbitrator, within the time fixed and to refer all disputes and differences between respondent No.1 and the appellant arising out of or in companynection with the Technology Upgrade Agreement as per the provisions of the Act.
Respondent No.
The Petition for Special Leave to appeal was filed originally challenging the decision of the Division Bench in the writ petition.
Disputes arose between the parties.
The decision of the arbitrators or the umpire as the case may be shall companystitute arbitrators award for the purpose of Indian Arbitration Act, 1940.
1 issued a numberice invoking the arbitration clause and calling upon the appellant to refer the dispute and differences to be settled through arbitration in terms of the arbitration agreement.
But subsequent to the decision in SBP Company supra , the appellant was permitted to companyvert the Petition for Special Leave to Appeal as one challenging the order of the designated Judge and pursue its challenge thereto directly in this Court.
The said agreement companytained an arbitration clause.
The appellant and respondent No.
1 entered into an agreement dated 23.10.1992 for a Technology Upgrade Project of the latter.
