Bombay High Court
M/S 3F Industries Limited vs Transparent Technologies Solutions ... on 12 January, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
2026:BHC-OS:1710
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION APPLICATION (L) No. 20159 OF 2025
3F Industries Limited, a company .. Applicant
incorporated under Companies Act,
1956 having its registered office at Post
Box No. 15, Tanuku Road,
Tadepalligudem, W.G. District, Andhra
Pradesh, thru duly constituted
Authorized Signatory Mr. G. Srinivasa
Rao, Age: 65, Designation: Deputy
Commercial Manager.
Versus
Transparent Technologies Solutions .. Respondents
Private Ltd, a Company incorporated
under the Companies Act, 1956 having
its registered office at Pushpa Heights,
1st Floor, Bibwewadi Comer, Pune.
...
Mr.Pradeep Reddy with Mr.Ronak Desai and Pranav Nair,
Advocate for the applicant.
Ms.Hasmit Trivedi with Indrakumar Lahoti and Ms.Niharika
Ahirekar for the respondent.
CORAM : BHARATI DANGRE
DATED : 12th JANUARY, 2026
JUDGMENT :-
1 The applicant, M/s. 3F Industries Limited, having its registered office in Andhra Pradesh, India, has filed an application under Section 11 of the Arbitration and Conciliation Act 1996, with the following relief :-
Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 2/19 ARBP 3 f.doc "To appoint a Fellow of the Institution of Engineers India as the nominee Arbitrator on behalf of the Respondent".
The aforesaid relief is sought in the wake of the dispute, having been arisen out of a Contract entered between the applicant, and the respondent, Transparent Technologies Solutions Private Limited, also a Company incorporated under the provisions of the Companies Act, pursuant to an offer of the respondent to the applicant for manufacture and supply of machinery. A Contract entered between the parties, determined the commercial terms of the understanding reached between them, and it also provided mechanism for resolving the disputes and differences arising therefrom. The said clause in form of clause 28.0 in the Contract dated 25/10/2018, entered between the parties, read thus :-
28.0 Arbitration:-
"In the event of any dispute or difference between the parties arising out of this contract, the same shall unless amicably settled, be referred to three arbitrators, one to be appointed by each party to the contract and the 3rd Presiding Arbitrator appointed by the two arbitrators. Arbitrators will be selected from the Fellows of Institution of Engineers (India). The decision of the majority of the Arbitrators shall be final and binding on both the parties. The arbitration proceedings shall commence once any one party to the contract communicates to the other party regarding invocation of arbitration agreement along with the name of the nominee joint arbitrator. The other party shall appoint its nominee joint arbitrator within a period of 30 days from the date of receipt of communication regarding invocation of arbitration agreement. In the event of failure by the other party to appoint it's nominee joint arbitrator as aforesaid, the nominee joint arbitrator appointed while invoking the arbitration agreement shall Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 3/19 ARBP 3 f.doc act as the sole arbitrator and the arbitration proceedings shall continue as directed by the sole arbitrator. The arbitration proceedings shall take place at Pune, Maharashtra, India. This agreement is for arbitration within the meaning of the Arbitration and Conciliation Act, 1996 including any statutory re-enactment or any other modification thereof."
In addition, clause of jurisdiction in form of 29.0 read thus.
29.0 Jurisdiction :
"All contracts between purchasers and ourselves are deemed to be entered into in India at Pune, Maharashtra and are therefore, subject to the jurisdiction of courts in India at Pune unless otherwise specifically agreed in written by TTSPL."
2 Upon the disputes arising between the parties, the respondent, on 17/2/2020 addressed a communication to the applicant, and with reference to the acceptance of the quotation at the end of the respondent, it was alleged that the purchase order was placed, and even the first lot of equipments was dispatched, and the supply of equipment was completed, but there was a failure on the part of the noticee to make payment against the proforma invoice prior to dispatch, and though the notice giver agreed to differ on part of the aforesaid payment to accommodate the constraint of the cash flow, it resulted in delay of the project. The notice also contained several other accusations, which was indicative of the dispute having been arisen between the parties, and the entitlement was claimed to the entire balance payment, which included sum of Rs.37,60,000/- towards balance of 10% of the equipment price Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 4/19 ARBP 3 f.doc and Rs.1,13,871/- towards cost of travelling for the visits of the engineers on the site. In short, the gist of the grievance is to be found in para 21 of the notice where it was stated thus :-
"21 Thus, the total amount payable to our client works out to Rs.37,50,000/- + Rs.1,13,871/- = Rs.38,63,871 (Rs. Thirty Eight Lacs Sixty three thousand Eight hundred Seventy One only). You would note that, your default in making the outstanding payment to our client has entitled our client to take appropriate legal action, including but not limited to a petition for winding up, against you. However, our client would like to afford you a last opportunity to make the outstanding payment in full and to settle the issue in an amicable manner. Our client therefore, states that in the circumstances as aforesaid, our client is left with no other option but to call upon you to for prompt settlement of the claim raised hereinabove."
The notice therefore called upon the applicant to pay the amount along with interest at the rate of 18% per annum till realisation within period of 15 days, failing which the notice indicated that appropriate legal action shall be initiated.
3 The aforesaid notice was followed by a round of talks for amicable settlement and discussion and the correspondence exchanged back and forth is placed on record, which includes the proposal/counter proposals for resolution of the dispute which was ended by the respondent by way of notice for claims and substituted performance addressed by the applicant to the respondent on 16/7/2020.
However, since no finality could be reached on the claims staked, on 9/9/2020, the respondent addressed a communication to the applicant, stating that it had invoked Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 5/19 ARBP 3 f.doc arbitration proceedings on 17/3/2020, as the attempts for amicable resolution were not successful, and the demand notice was turned down. It was clarified that the request to keep the arbitration proceedings at abeyance, a precondition for exploring amicable settlement was not acceptable, and it was also stated that the invocation of arbitration proceedings at the end of the noticee was allegedly immature, invalid, and unlawful. However, the notice indicated that since the applicant failed to appoint it's nominee Joint arbitrator, as contemplated under the Arbitration Agreement, the respondent is left with no option, but to request the joint nominee arbitrator Mr.Sanjay Eknath Joshi, appointed by it, by letter dated 30/7/2020 to act as a sole arbitrator as per the arbitration agreement, and accordingly, he convened the arbitration meeting on 31/8/2020.
The notice also state that the applicant had purportedly invoked another arbitration proceedings, under a self proclaimed assertion of the arbitration, being invoked on 17/3/2020, being allegedly unlawful, infructuous by appointing Dr. S. Nagbhushan Rao as nominee joint arbitrator. The respondent, therefore, communicated to the applicant that, in the wake of non-acceptance of their proposal, dated 27/8/2020, which had now expired, the arbitration proceedings invoked by them on 17/3/2020, will continue before the Sole Arbitrator Sanjay Eknath Joshi.
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4 I am informed that pursuant to the above
communication, arbitration is continued by Shri Sanjay Joshi and he declared the Award on 25/11/2021, when Transparent Technologies Solutions Private Ltd, the claimant, staked it's claim against the respondent, M/s.3F Industries, and on determination of the claim, the claimant is awarded a sum of Rs.55,73,945/- towards Claim no.1, 2, and 4, and is also held entitled for Rs.9,81,317/- towards pendent lite interest. In addition, the respondent in the arbitration proceedings is directed to pay future interest at the rate of 15% per annum from the date of award on the amount awarded by the Arbitrator.
5 Needless to state that the award did not have the participation of the applicant and is ex-parte. On the award being passed, the respondent also filed proceedings for it's execution in the Court of Principal ADJ at Tadepalligudem. 6 The applicant approached the High Court of Andhra Pradesh, by filing an Application under Section 11 (4) and (6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator with reference to Clause 28 of the Agreement between the parties, by stating that the disputes arose between the parties, with reference to the contract in question, and the arbitration was invoked, and a notice was sent to the respondent, but the respondent failed to nominate its Arbitrator within prescribed period of 30 days, and thus has lost its right to appoint an Arbitrator. It was also pleaded that arbitration Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 7/19 ARBP 3 f.doc was subject to jurisdiction of the Courts at Pune, but in the purchase order dated 20/10/2018, the disputes were made subject to Tadepalligudem jurisdiction, and therefore, the Andhra Pradesh High Court had jurisdiction to nominate an Arbitrator under Section 11 of the Act.
The prayer received opposition at the end of the respondent, on the ground of jurisdiction, as it was urged that with the presence of specific clause 28 and 29 in the Agreement, the print incorporated at the of the bottom of the purchase order, envisaging all disputes to the subjected to Tadepalligudem jurisdiction only, cannot override a consensus expressed in the agreement.
By specifically referring to Clause 29 of the Contract, dealing with the jurisdiction, and envisaging that the contract would be subjected to jurisdiction to Courts in India at Pune, unless otherwise specifically agreed in writing by the parties, and by noting that there is nothing on record to show that the respondent in writing, agreed to the change of jurisdiction of the courts from Pune to Tadepalligudem, the Andhra Pradesh High Court refused to entertain the application under Section 11. In addition, the Court also noted that in the notice dated 18/8/2020, the applicant had informed the respondent that it had nominated Dr.S.Nagbhushan Rao as their nominee arbitrator, and also informed that rest of the procedure shall be as per arbitration agreement in the Contract, and therefore it did not lie in the mouth of the applicant to Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 8/19 ARBP 3 f.doc state that the jurisdiction is vested in the Andhra Pradesh High Court to appoint an arbitrator. On this count, the application being not maintainable on account of lack of jurisdiction, was dismissed with cost of Rs. 50,000/- being imposed. 7 It is in the wake of the aforesaid, the applicant has now approached this Court seeking appointment of a Fellow of the Institution of Engineering, as nominee arbitrator on behalf of the respondent.
I have learned heard learned counsel Shri Pradeep Reddy for the applicant and Mr.Hasmukh Trivedi for the respondent. Mr.Reddy has placed reliance on the decision of the State of Goa Vs. Praveen Enterprises,1 which formulated the following question for consideration.
"Whether the respondent in an arbitration proceeding is precluded from making a counterclaim, unless
(a) it had served a notice upon the claimant requesting that the disputes relating to that counterclaim be referred to arbitration and the claimant had concurred in referring the counterclaim to the same arbitrator; and/or
(b) it had set out the said counterclaim in its reply statement to the application under Section 11 of the Act and the Chief Justice or his designate refers such counterclaim also to arbitration."
On due deliberation of the said issue, the observation of the Apex Court in para 32 is relied upon by Mr. Reddy, which record thus :-
"32 A counterclaim by a respondent presupposes the pendency of proceedings relating to the disputes raised by the claimant. The respondent could no doubt raise a 1 (2012) 12 SCC 581 Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 9/19 ARBP 3 f.doc dispute (in respect of the subject-matter of the counterclaim) by issuing a notice seeking reference to arbitration and follow it by an application under Section 11 of the Act for appointment of arbitrator, instead of raising a counterclaim in the pending arbitration proceedings. The object of providing for counterclaims is to avoid multiplicity of proceedings and to avoid divergent findings. The position of a respondent in an arbitration proceeding being similar to that of a defendant in a suit, he has the choice of raising the dispute by issuing a notice to the claimant calling upon him to agree for reference of his dispute to arbitration and then resort fo an independent arbitration proceeding or raise the dispute by way of a counterclaim, in the pending arbitration proceedings".
8 On 5/12/2025, I had crystallised the crux of the matter in the following words:-
"In the present Arbitration Application, a short point for consideration, is whether with an independent claim arising out of the same Contract, a party who has invoked arbitration, can seek appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996.
The aforesaid question arises in light of the peculiarity of the Contract entered between the parties which contemplated reference of any dispute arising out of the Contract to the Arbitrator, but peculiarly it also contemplated appointment of a nominee arbitrator by one part and the nomination of another Arbitrator by the other party within a period of 30 days, and thereafter, the two nominee Arbitrators nominating the third Arbitrator. However, failure to nominate an Arbitrator within the stipulated timeline, the clause permitted conversion of the nominee Arbitrator into a Sole Arbitrator.
Respondent no.1 taking benefit of the clause took his claim to the sole arbitrator, by contending that the other side failed to nominate the Arbitrator and as per the clause of the nominee Arbitrator got converted himself into a sole Arbitrator and the Award is declared."
Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 10/19 ARBP 3 f.doc 9 Mr. Trivedi has marked his appearance on behalf of the respondent, and he would place reliance upon the decision of the Apex Court in case of Antrix Corp. Ltd Versus Devas Multimedia P. Ltd2 (Arbitration Petition No.20/2011), as regards the scope and ambit of the powers of the Chief Justice under sub section (6) of Section 11 of the Act, and he would rely upon the following observations in the said decision.
"33 The law is well settled that where an Arbitrator had already been appointed and intimation thereof had been conveyed to the other party, a separate application for appointment of an Arbitrator is not maintainable. Once the power has been exercised under the Arbitration Agreement, there is no power left to, once again, refer the same disputes to arbitration under Section 11 of the 1996 Act, unless the order closing the proceedings is subsequently set aside. In Som Datt Builders Pvt Ltd Vs. State of Punjab [2006 (3) RAJ 144 (P & H)], the Division Bench of the Punjab & Haryana High Court held, and we agree with the finding, that when the Arbitral Tribunal is already seized of the disputes between the parties to the Arbitration Agreement, constitution of another Arbitral Tribunal in respect of those same issues which are already pending before the Arbitral Tribunal for adjudication, would be without jurisdiction."
In support of his submission, that claim was staked by the respondent before the Arbitrator appointed by it, who took over as a Sole Arbitrator strictly in accordance with the procedure contemplated in the arbitration clause in the Contract, and the Award having been passed by him, which has determined the issues that arose, he would submit that there is no scope of appointment of an Arbitral Tribunal as the tribunal constituted in accordance with the clause had already adjudicated upon the claim petition. He would also submit that 2 (2014) 11 SCC 560 Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 11/19 ARBP 3 f.doc in any case, staking of a claim, which is time-barred, or where there is no substituting dispute, the case would fall squarely within the ambit of the decision of the Apex Court in case of Bharat Sanchar Nigam Ltd & Anr Versus M/s.Nortel Networks India Pvt. Ltd.3 10 I have considered the counter submissions which will have to be appreciated in the backdrop of the Arbitration Clause contained in the contract between the parties.
Clause 28.0 has set out a mechanism for settlement of dispute or differences between the parties, by providing that the same shall, unless amicably settled, to be referred to three arbitrators; one to be appointed by each party to the contract, and third Presiding Arbitrator to be appointed by the two Arbitrators. The Clause also provided that the arbitrators will be selected from Fellows of Institutes of Engineers (India).
The provision in the Agreement, goes ahead and record that the arbitration proceedings shall commence on any of the party to the contract communicating to the other party about invocation of arbitration, along with the name of it's nominee joint arbitrator, and upon this step being initiated by one party, the other party shall appoint its nominee joint arbitrator within a period of 30 days from the date of receipt of communication regarding invocation of arbitration agreement. However, in the event of failure by the other party to appoint its 3 (2021) 5 SCC 738 Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 12/19 ARBP 3 f.doc nominee joint arbitrator, the nominee joint arbitrator appointed while invoking arbitration shall be the sole arbitrator, and the arbitration proceedings shall be continued through him.
11 In the wake of the peculiarity of clause 28.0, when the disputes arose between the parties, the respondent Transparent Technologies Solutions Pvt.Ltd, invoked Arbitration on 17/3/2020, and though for a while, an attempt was made for an amicable settlement, as proposals were exchanged, but the arbitration was never kept in abeyance as a pre-condition for exploring amicable settlement. The respondent, while invoking arbitration had nominated its Arbitrator, as contemplated under the agreement, and therefore, it was imperative for the applicant to nominate its Arbitrator, within period of 30 days, but on account of failure to do so, and rather amounting to a willful act of not nominating the joint arbitrator, the respondent, by taking recourse to clause 28.0, converted its nominee arbitrator as the 'sole arbitrator', and this was made known to the applicant by letter dtd. 3/7/2020. The sole arbitrator proceeded with the arbitration as he convened the meeting on 31/8/2020 and in the arbitral proceedings, the applicant failed to contest the claim and in ignorance of the communication from the Arbitrator on 18/8/2020, the applicant invoked another arbitration proceedings on a self proclaimed assertion of the arbitration proceedings being invoked by appointment of Dr. S. Nagbhushan Rao, as nominee joint arbitrator. In fact, the sole arbitrator informed the parties Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 13/19 ARBP 3 f.doc as well as the nominee arbitrator on 31/8/2020 about his willingness to reconstitute the Arbitral Tribunal after getting confirmation of the nominee, Dr. Nagbhushan Rao. However, the applicant by letter dated 2/9/2020 raised a new issue, calling for fresh nomination of Mr. Sanjay Joshi, which obviously was not accepted, and he moved ahead with the arbitration proceedings and declared the Award.
12 The applicant now seek appointment as nominee arbitrator on behalf of the respondent, which prayer, according to us, cannot be granted, as in terms of clause 28.0, the respondent had already invoked arbitration, suggested the name of its nominee arbitrator, and within a period of 30 days, there was no nomination at the end of the applicant as contemplated in the clause, and thereafter, with due notice to the applicant, the sole arbitrator commenced the proceedings as he was converted into a sole arbitrator, and took the arbitration proceedings ahead and passed an award.
Before the sole arbitrator, the respondent being the claimant, staked it's claim and before adjudicating upon the claim, the arbitrator in detail referred to the constitution of the Tribunal and the procedural history, by stating that the claimant had invoked arbitration by notice dated 17/3/2020, and appointed the arbitrator as nominee joint arbitrator and had called upon the respondent (applicant) as its nominee joint arbitrator within period of 30 days.
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This notice was well accepted by the applicant who wrote to the claimant on 2/4/2020 that they shall revert on the arbitration proceedings after the lock-down. Thereafter, some offer was made to the claimant by the present applicant for amicable settlement, but it did not yield any success, and ultimately, on 17/7/2020, an email was forwarded by the claimant to the applicant, summarizing the discussions and communications exchanged, indicating that the talks of settlement did not yield any success, and on 3/7/2020, the claimant Transparent Technologies Solutions Pvt Ltd. addressed a communication to the arbitrator being the nominee arbitrator appointed by it about the failure of the respondent to appoint it's nominee arbitrator and requested it to enter the reference as sole arbitrator in terms of the arbitration agreement, and thus, the Arbitral Tribunal was constituted.
The Tribunal issued notices to the parties for having a preliminary meeting on 31/8/2020, and in response, the applicant continued to reiterate that the notice of respondent company Transparent Technologies Solutions Private Limited, for arbitration dated 17/3/2020 was invalid, as the notice was issued without conducting amicable settlement proceedings. It is with the constitution of the Arbitral Tribunal, strictly in consonance with the procedure contemplated in the Arbitration Agreement i.e. Clause 28, the Arbitral Tribunal entered into reference and determined the claim, admittedly, without participation of the applicant respondent before it.
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13 I was called upon to appreciate the argument of the
learned counsel Mr. Reddy, that even now a separate Arbitral Tribunal can be constituted for determining it's claim, as what is determined is only the claim of the respondent and not of the applicant, and even he had invoked arbitration.
I must reject this argument, as it is worth to note that the proper law of the arbitration agreement, is the law governing the rights and obligations of the parties, arising from the arbitration agreement, and what is crucial, is the manner agreed between the parties for resolution of their disputes. The Arbitration and Conciliation Act 1996, which has conferred the jurisdiction upon the Chief Justice to constitute a Tribunal clearly contemplate the Constitution in accordance with the agreement between the parties. The Chief Justice or his designate, who is entitled to exercise the power under Section 11, shall not go beyond the arbitration agreement, which has agreed to the manner in which the arbitrator shall be appointed, and the procedure to be followed.
In the case before me, it is the peculiarity of the clause which must receive due weightage. It is necessary to make reference to Section 11 of the Arbitration and Conciliation Act, 1996, which reads thus :-
11. Appointment of arbitrators.--(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.
(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.
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(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed Bitstream Charterarbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.
(4) If the appointment procedure in sub-section (3) applies and-- (a) a party fails to appoint an arbitrator within 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 1 [the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court];
(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 1 [the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court].
(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 it under that procedure, a party may request 1 [the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court] to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. 2 [(6A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub- section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement. (6B) The designation of any person or institution by the Supreme Court or, as the case may be, the High Court, for the purposes of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court.] (7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to 3 [the Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court is final and no appeal including Letters Patent Appeal shall lie against such decision].
[(8) The Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court, before appointing an arbitrator, shall seek a disclosure in writing from the prospective arbitrator in terms of sub-section (1) of section 12, and have due regard to-- (a) any qualifications required for the arbitrator by the Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 ::: 17/19 ARBP 3 f.doc agreement of the parties; and (b) the contents of the disclosure and other considerations as are likely to secure the appointment of an independent and impartial arbitrator.] (9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, 2 [the Supreme Court or the person or institution designated by that Court] may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.
14 Reading of the aforesaid provision would make it clear that it is open to the parties to agree on the procedure for appointing the arbitrator or arbitrators. Subject to clause (6) where under an appointment procedure, the parties have agreed to follow a particular mechanism, and when there is a failure on the part of one of the party to act in accordance with the prescribed procedure, request may be made to the Chief Justice or any person or an institution to secure an appointment.
The clause in the agreement between the parties clearly contemplated nomination of a nominee arbitrator within period of 30 days when the party who has invoked the arbitration had already appointed it's nominee arbitrator, and this was to be done within period of 30 days from the receipt of the request from the other party, and failure to do so, the clause provide for a mechanism of converting the nominee arbitrator into a sole arbitrator. This is what is precisely done by the respondent, when it's nominee arbitrator is converted into a sole arbitrator and on the claim being staked before the sole arbitrator at the instance of the respondent, who had invoked the arbitration, the same has been adjudicated.
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Surprisingly, despite knowing that an award has been passed by sole arbitrator, the applicant now seek directions from this Court by invoking Section 11 to appoint a nominee arbitrator for the respondent, which is not a relief that can be granted by us, as it is a failure of the applicant to appoint it's nominee arbitrator within the prescribed timeline of 30 days, and thereby it can be said that it is the applicant who has invited the whole trouble, as the nominee arbitrator of the respondent was converted into a sole arbitrator, and the proceedings are adjudicated, when the Award is already declared by the sole arbitrator.
15 I do not, therefore, find any justification for directing a fresh arbitration process to be followed, for adjudicating the claim of the applicant, who now seek appointment of nominee arbitrator of the respondent to continue the arbitration proceedings.
16 Reliance placed by Mr. Reddy upon a decision in case of Praveen Enterprises (supra), do not take his case any further, as I find that it relates to a claim in form of a counterclaim, and I have no doubt in my mind, that once the disputes are referred to the Arbitrator at the instance of one of the party, there can be a claim in form of a counterclaim by other party, but definitely the said decision do not contemplate fresh arbitration proceedings on the same cause of action, and on the same clause in the contract, which is already invoked and acted upon.
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In the wake of the aforesaid, finding no merit and substance in the application, the same is dismissed, as according to me, there remains nothing between the parties for adjudication, as on the Award passed by the sole arbitrator, the disputes arising between the parties are already adjudicated and it is inconceivable that upon the proceedings being concluded, by following the mechanism prescribed, now a fresh Arbitrator can be appointed.
I also do not find substance in the submission of Mr. Reddy that the nominee arbitrator taking the role of a sole arbitrator is disqualified, because it is an unilateral appointment and his reliance upon the decision of TRF Limited versus Energo Engineering Projects Ltd,4 do not deserve any consideration. The arbitrator nominated by the respondent was an independent arbitrator, and at no point of time, any objection is raised about his impartiality or independence, or the objection raised was not as regards his ineligibility to act as an Arbitrator. Hence, I do not find substance in the said submission and reject the same.
In light of the aforesaid discussion, finding no merit, the arbitration application is dismissed. Easy on costs.
(BHARATI DANGRE, J.) 4 (2017) 8 SCC 377 Tilak ::: Uploaded on - 22/01/2026 ::: Downloaded on - 23/01/2026 21:18:20 :::