(Prayer: This CMP is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, praying to nominate and appoint any retired Judge of this Hon'ble Court as the sole Arbitrator to adjudicate upon the disputes which have arisen between the Petitioner and the Respondent.)1. The Petitioner is before this Court seeking for the appointment of a sole Arbitrator to adjudicate the disputes between the parties under Section 11(6) of the Arbitration and Conciliation Act, 1996 (A&C Act).2. The brief facts are as follow.2.1. The Deputy Commissioner, Ballari vide his letter No.BATF:05:2010-11 dated 31.08.2010 had called upon various mining companies to undertake the construction of about 12 kilometres road from Sandur town to Sri Kumaraswamy temple for convenience and benefit of the public at large.2.2. The said call was accepted by the Petitioner as a part of Corporate Social Responsibility (CSR). In furtherance thereof, the Petitioner received contributions from other participating mining lessees and other companies for the said road construction project. The Petitioner on behalf of all participating mining lessees and contributing companies awarded the contract of the construction of the said road to the Respondent herein.2.3. One other contributor to the project namely JSW Steel Limited had through its civil project department discussed with the respondent contractor about the scope of work, bill of quantities as also drafted the contract which came to be agreed to and executed between the Petitioner and the Respondent.2.4. In terms thereof, the work was to be commenced by the Respondent and completed as per the terms and specifications of the agreement.2.5. There were certain disputes which arose on account of non-carrying of work properly, non- obtaining of permission from Karnataka State Pollution Control Board (KSPCB), pollution caused during to the implementation of the work, notices being issued by the KSPCB, etc.,2.6. The Petitioner had filed an application under Section 9 of the Arbitration and Conciliation Act, for interim relief before the Principal District and Sessions Judge, Ballary, in those proceedings the Respondent had taken up a stand that a proceeding under Section 9 of the Arbitration & Conciliation Act, 1996 was not maintainable, since Arbitration is to be held under the aegis of the Indian Council of Arbitration (ICA) and on this ground, the Respondent had contended that the Principal District and Sessions Judge, Ballary did not have jurisdiction.2.7. On account of the said disputes, the Petitioner invoked the Arbitration clause under the work order dated 20.12.2010. The said Arbitration clause is hereunder reproduced for easy reference."Arbitration & applicable law:Any dispute arising shall be referred to and finally resolved by Arbitration under the Rules of Arbitration of Indian Council of Arbitration (the "ICA Rules") as amended and in force, from time to time. This contract shall be exclusively governed by Indian Law."2.8. Since the arbitration clause provided for Arbitration under the aegis of the ICA. A request for appointment of Arbitrator was filed before the ICA on 01.07.2014 in terms of the Rules and regulations applicable thereto and on a demand being made by the ICA, the Petitioner had also deposited the registration fee of Rs.22,472/- along with stipulated fee falling to the share of the Petitioner being Rs.13,99,378/-.2.9. The Petitioner from the list of arbitrators published by ICA had chosen the name of Mr. Justice R.V.Ravindran, Former Judge of Hon'ble Supreme Court of India, as an arbitrator, however, the ICA requested the Petitioner to nominate another arbitrator due to some inconvenience. The Petitioner nominated Hon'ble Mr. Justice Vaidheeshwaran. (Retd.) High Court of Karnataka.2.10. On receipt of the said request by the ICA the ICA communicated the same to the Respondent towards which the Respondent got issued a reply through his legal counsel on 19.09.2013 denying the invocation of the clause by the Petitioner and categorically stating in the said letter that the Respondent had only accepted Arbitration in terms of the A&C Act and not in terms of the rules and regulations of the ICA. The said clause incorporating Arbitration under the aegis of ICA was unilaterally inserted by the Petitioner and therefore Respondent was not acceptable to it.2.11. The Respondent had also taken up a contention that the fees being charged by the ICA was unreasonable and very heavy and as such, the Respondent was not agreeable to make payment of the said amounts, the very object of choosing Arbitration as a methodology to resolve a dispute at a cheaper rate which would not be possible on account of the demand by the ICA and further informed the ICA that the Respondent was in the process of filing an application for appointment of an Arbitrator before the High Court of Andra Pradesh, a copy of which shall be forwarded shortly.2.12. In reply thereto the ICA on 24.09.2013, observing that the letter dated 22.08.2013 by the ICA had not been replied favorably by making payment of the Respondent's part of arbitral fees, the ICA observed that the facts do not justify the respondent conduct of non- participation as also the unwilling attitude of the Respondent, which not only causes hindrance to arbitral process but also brings a bad name for the Respondent afforded one more opportunity to the Respondent until 15.10.2013 to make payment of the due amounts and thereafter proceed with the matter.2.13. However, the Respondent did not make payment of the due amounts and as such the ICA vide its letter dated 05.08.2014 observing that there was no payment made by the Respondent and the Petitioner had also not agreed to make payment of the Respondent's share of the arbitration fee, when called upon, dismissed/closed the reference to Arbitration and dismissed the case for lack of persuasion by the Claimant and while doing so, ICA refunded an amount of Rs.11,00,500/- out of Rs.13,99,378/- deposited by the Petitioner deducting an amount of Rs.2,98,878/- as administrative charges of the counsel.3. The said rejection/closure having occurred on 05.08.2014, the Petitioner has filed the present petition under Section 11(6) of the A&C Act on 13.02.2015 on service of notice, the Respondent has entered appearance and filed its counter on 05.12.2016, contending that3.1. There are various disputes on merits as regards the claim made by the Petitioner.3.2. At paragraph No.7 of the objection, the Respondent had categorically stated that in terms of the work order dated 20.12.2010 any arbitration has to be only in accordance with the Rules of the Arbitration of the ICA, therefore, the Petitioner approaching this Court under Section 11 of the A&C Act is not permissible.3.3. The contract between the Petitioner and the Respondent having been terminated on 07.06.2012, the proceedings having been filed beyond the period of Limitation was not maintainable.3.4. The parties having agreed for appointment of an arbitrator under Rules of ICA, the Petitioner could not invoke the provisions of A&C Act, 1996.3.5. That in terms of Section 11(4) and 11(5) of the A&C Act, a notice ought to be issued calling upon the Respondent to appoint an arbitrator and in the event of the Arbitrator not being appointed by the noticee within 30 days period, only then a proceeding could be initiated under Section 11(5) of the A&C Act.3.6. The Petitioner had wrongly invoked the jurisdiction of this Court without exhausting remedies available as per the terms and conditions of the agreement, the claim filed by the Petitioner and the request for appointment of an arbitrator having been rejected by the ICA, a second application for invocation of Arbitration by the present application under Section 11 of A&C Act is not maintainable and on this ground sought for dismissal of the petition.4. Sri. Aravind D. Kulkarni, learned counsel for the Petitioner during his arguments, submitted that4.1. The Petitioner had acted in accordance with the terms of the work order and had invoked the necessary arbitration clause and approached the ICA for the appointment of an arbitrator, even at the time of invoking the said arbitration clause, the Petitioner had deposited the administrative fees and its part of the arbitral fees, administrative and registration fees with the ICA. Thus the Petitioner had complied with all the requirements under the clause as also the Rules of Arbitration and Conciliation of the ICA.4.2. It is the Respondent who took up the contention in those proceedings that,4.2.1. The Respondent was not agreeable for Arbitration of ICA,4.2.2. That the clause of Arbitration to ICA was alleged to have been unilaterally inserted by the Petitioner,4.2.3. The Respondent was not willing to make payment of his part of the fees,4.2.4. The Respondent did not have faith in ICA and the Arbitrator appointed by the ICA,4.2.5. The Respondent informed the ICA that the Respondent would be filing an application under Section 11 of the A&C Act, 1996, before the High Court of Andhra Pradesh4.2.6. In fact, the Respondent filed such a proceeding before the High Court of Andhra Pradesh in Application No.139/2013 on 10.10.20134.2.7. Pursuant thereto, ICA had stayed its hand and called upon the parties to provide details about the status of those proceedings before the High Court of Andhra Pradesh4.2.8. In view of the said filing of the petition before the High Court of Andhra Pradesh, the Petitioner could not make payment of the amounts on the part of the Respondent,4.2.9. In this situation, the ICA being of the opinion that the matter could not be kept pending for a long time, taking note of the non payment of the Petitioner, of the respondents part of the arbitration fee, dismissed or closed the arbitral proceeding. Even though the Petitioner had deposited its share, by returning the amounts deposited after deducting an amount towards administrative charges.4.3. On account of the Respondent not having consented to Arbitration under the ICA, the agreed procedure having failed, the Petitioner had no option but to invoke Section 11(6) of the A&C Act, 1996 and filed the present proceedings.4.4. The Petitioner had rightly invoked the provision under ICA, and it is only on account of the Respondent taking a stand contrary to the agreement and delaying the matter that with an intention to speedily resolve the issue, the Petitioner is before this Court and seeks for appointment for an arbitrator at the earliest.5. Per contra, Dr. D. Venkat Reddy, learned counsel appearing for the Respondent would submit by reiterating the contentions of the objection statement that,5.1. Once there is a procedure agreed under the arbitration clause for appointment of an arbitrator i.e. in this case, through the ICA, no petition could be filed under Section 11 of the A&C Act.5.2. It is only the ICA who has the jurisdiction to appoint an arbitrator and all arbitral proceedings have to be conducted under the aegis of the ICA.5.3. In terms of Rule 28 of ICA if in fact the Petitioner was keen on going on with the Arbitration the Petitioner ought to have deposited the share of the fees of the Respondent and gone ahead, the Petitioner not having deposited the share of the Respondent, it is the Petitioner who is to blame and the Petitioner having suffered an order of dismissal from the ICA cannot maintain the present proceedings under Section 11 of the A&C Act.5.4. The ICA could have relying on Rule 54(ii) proceeded with the matter exparte, the ICA not having done that the Petitioner cannot now file another application under Section 11 of the A&C Act.5.5. By relying on Rule 70 of the ICA Rules of Arbitration, he submits that there is an embargo on the Respondent to challenge any award which is contrary to the provision of the A&C Act, 1996. It is for this reason that the Respondent was not agreeable to go before the ICA.5.6. Relying on Rule 79 of the ICA Rules, he contends that once an order dismissing the request for reference of appointment of an arbitrator has been passed, no further proceedings can be initiated in any court under Section 11 of the A&C Act or otherwise.5.7. The claim of the Petitioner itself is dead, in that the termination was effected on 07.07.2012, the ICA dismissed the reference on 05.08.2014 and the present petition having been filed on 13.12.2015 is barred by Limitation.5.8. In case of a dead claim, no arbitral proceedings can be initiated and there is no other requirement for appointment of an arbitrator.5.9. That no notice under Section 11(5) of the A&C Act has been issued, it is mandatory for the Petitioner to issue such a notice, the same not having been done, the present petition is not maintainable.5.10. The Respondent has a counter claim of Rs.1 Crore against the Petitioner it is not that the Respondent is required to make any payment of the money to the Petitioner, in fact, it is the Petitioner who has to make payment monies to the Respondent and on all these grounds, he submitted that the present petition has to be dismissed.6. Heard Shri Aravind Kulkarnai, Learned Advocate for Petitioner and Sri. Dr. D. Venkat Reddy, Learned Advocate for the Respondent. Perused papers with their assistance.7. The points that arise for consideration of this Court on the basis of the pleadings and arguments advanced by both the parties are:(i) Whether if a clause provides for reference of Arbitration under a particular institution and or an agreed mechanism, can any of the parties deviate from the said agreed mechanism?(ii) Whether once there is an agreed mechanism could a petition under Section 11 of the Arbitration and Conciliation Act, 1996 be maintainable?(iii) Can a matter which is barred by Limitation and or is a dead claim be referred to Arbitration?(iv) Once invocation of arbitration clause has been made under an agreed mechanism, can an application under Section 11 be maintainable merely on the ground that the other party has not agreed to follow the agreed mechanism?(v) Whether issuance of notice under Section 11(4) of the Arbitration and Conciliation Act, 1996 is mandatory for the purpose of initiating proceedings under Section 11(6) of the Act?(vi) Whether once an invocation is made under the agreed mechanism would right of the party having invoked the said agreed mechanism cease to exist by such invocation?(vii) Whether in the event of there being any failure of complying with the agreed mechanism could a proceeding be initiated under Section 11 (6) of the Arbitration and Conciliation Act, 1996?(viii)What Order?8. I answer the above points as under:9. RE: POINT NO.1: Whether if a clause provides for reference of Arbitration under a particular institution and or an agreed mechanism can any of the parties deviate from the said agreed mechanism?9.1. Dr. D. Venkat Reddy the Learned counsel for Respondent has referred to and relied upon the following decisions:9.1.1 Iron & Steel Co. Ltd. v. Tiwari Road Lines, (2007) 5 SCC 703 at page 708:"8. In the present case the agreement executed between the parties contains an arbitration clause and clause 13.1 clearly provides that all disputes and differences whatsoever arising between the parties out of or relating to the construction, meaning and operation or effect of the contract or the breach thereof shall be settled by Arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration and the award made in pursuance thereof shall be binding on the parties. This clause is in accordance with sub-section (2) of Section 11 of the Act. There being an agreed procedure for resolution of disputes by Arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration sub- sections (3), (4) and (5) of Section 11 can have no application. The stage for invoking sub-section (6) of Section 11 had also not arrived. In these circumstances, the application moved by the Respondent before the City Civil Court, Hyderabad, which was a designated authority in accordance with the scheme framed by the Chief Justice of the Andhra Pradesh High Court, was not maintainable at all and the City Civil Court had no jurisdiction or authority to appoint an arbitrator. Thus the order dated 31-3-2004 passed by the Chief Judge, City Civil Courts, Hyderabad, appointing a retired judicial officer as Arbitrator is clearly without jurisdiction and has to be set aside."9.1.2 In the case of Antrix Corpn. Ltd. v. Devas Multimedia Pvt. Ltd., (2014) 11 SCC 560 ( para 31)"31. The matter is not as complex as it seems and in our view, once the arbitration agreement had been invoked by Devas and a nominee arbitrator had also been appointed by it, the arbitration agreement could not have been invoked for a second time by the Petitioner, which was fully aware of the appointment made by the Respondent. It would lead to an anomalous state of affairs if the appointment of an arbitrator once made, could be questioned in a subsequent proceeding initiated by the other party also for the appointment of an arbitrator. In our view, while the Petitioner was certainly entitled to challenge the appointment of the Arbitrator at the instance of Devas, it could not do so by way of an independent proceeding under Section 11(6) of the 1996 Act. While power has been vested in the Chief Justice to appoint an arbitrator under Section 11(6) of the 1996 Act, such appointment can be questioned under Section 13 thereof. In a proceeding under Section 11 of the 1996 Act, the Chief Justice cannot replace one Arbitrator already appointed in exercise of the arbitration agreement.32. It may be noted that in Gesellschaft Fur Biotechnologische Forschun GmbH v. Kopran Laboratories Ltd. [(2004) 13 SCC 630] , a learned Single Judge of the Bombay High Court, while hearing an appeal under Section 8 of the 1996 Act, directed the claims/disputes of the parties to be referred to the sole Arbitration of a retired Chief Justice with the venue at Bombay, despite the fact that under the arbitration agreement it had been indicated that any disputes, controversy or claim arising out of or in relation to the agreement, would be settled by Arbitration in accordance with the Rules of Reconciliation of the International Chamber of Commerce, Paris, with the venue of Arbitration in Bombay, Maharashtra, India. This Court held that when there was a deviation from the methodology for appointment of an arbitrator, it was incumbent on the part of the Chief Justice to assign reasons for such departure."9.1.3 In the case of Rite Approach Group Ltd. v. Rosoboronexport, (2006) 1 SCC 206 at page 212, it has been held thus:"20. In view of the specific provision specifying the jurisdiction of the Court to decide the matter, this Court cannot assume the jurisdiction. Whenever there is a specific clause conferring jurisdiction on a particular court to decide the matter then it automatically ousts the jurisdiction of the other Court. In this agreement, the jurisdiction has been conferred on the Chamber of Commerce and Trade of the Russian Federation as the authority before whom the dispute shall be resolved. In view of the specific arbitration clause conferring power on the Chamber of Commerce and Trade of the Russian Federation, it is that authority which alone will arbitrate the matter and the finding of that Arbitral Tribunal shall be final and obligatory for both the parties."9.2. Dispute resolution by way of Arbitration can be resorted to if the contract is covered by an arbitration agreement in terms of Section 7 of the A&C Act.9.3. The parties to an arbitration agreement can agree upon the mode and methodology of the conduct of the Arbitration or agree for the same to be conducted in accordance with the applicable law like the A&C Act.9.4. When Arbitration is to be held or conducted as per the rules of an Institution, such Arbitration is called Institutional Arbitration.9.5. Even if it is to be dealt with under applicable law, i.e., the A&C Act, the appointment of an arbitrator would be made in terms of Section 11 of the said Act. Such an Arbitration is called Ad Hoc Arbitration. If both parties agree to the appointment of Arbitration, such arbitrations are conducted without the intervention of the Court, however, if the parties do not agree upon the Arbitrators to arbitrate the dispute, one of them would approach the jurisdictional Court under Section 11 of the A&C Act for the appointment of an Arbitrator. When an Arbitrator is appointed by the jurisdictional Court, such Arbitration is conducted with the intervention of the Court,9.6. If the parties have agreed to a particular mode or methodology including Arbitration by a named arbitrator, it is that agreement which has to be given primacy, and the Arbitration would have to be conducted as per the agreement arrived at. This being so since an Arbitration is the resolution of a dispute between the parties by a private forum, different from the resolution by a public forum like the Courts.9.7. In view of the above, if the parties have agreed by an agreement for Arbitration by a named Arbitrator, it is said named Arbitrator alone who could be appointed to be the Arbitrator to arbitrate the dispute.9.8. If a particular office/er is nominated as the Arbitrator, then person occupying the said office/er would have to be appointed as the Arbitrator subject to, however, that the said person or said office/er does not have any conflict with the subject matter of Arbitration.9.9. The other set of circumstances would be where an institution has been named under whose aegis arbitration has to be held/conducted. Once the institution has been named and the procedure of that institution is made applicable to the Arbitration to be conducted, then the parties are bound by the same. The parties would have to be referred to the said institution for the conduct of Arbitration. The Arbitration to be conducted as per the agreed mechanism thereto.9.10. In the present case, the arbitration clause having provided for resolution of disputes in terms of the rules of the Arbitration of ICA, Arbitration ought to be conducted in terms of the said rules under the aegis of the ICA. There is no scope for any of the parties to deviate from the same. The agreement as regards the agreed mechanism has to be followed in true letter and spirit of the said agreement.9.11. I Answer point No. (i) holding that if a clause provides for reference of Arbitration to a particular institution and or for the conduct of Arbitration under an agreed mechanism, no party to such agreement can deviate from the said agreed mechanism, the parties are required to strictly follow and adhere to the agreed mechanism.10. POINT No:2: Whether once there is an agreed mechanism could a petition under Section 11 of the Arbitration and Conciliation Act, 1996 be maintainable?10.1. Learned counsel for the Petitioner has relied upon the following decisions:10.1.1 M/s Star Metalica & Power Private Limited -v- M/s Tecpro Systems Limited -Power Division (CMP No.92/2015 c/w 63/2015 , 64/2015 DD 2.11.2017):"Heard the learned counsels for the parties.2. These Civil Miscellaneous Petitions are filed under Sections 11(4) (6) of the Arbitration and Conciliation Act, 1996, seeking the appointment of the Arbitrator from this Court, since the earlier reference under the agreed procedure before the Indian Council of Arbitration (ICA) has already failed, as the Respondent - M/s.Tecpro Systems Limited, M/s.Tecpro Infrastructure Pvt. Ltd., M/s.Tecpro Engineers Pvt. Ltd., did not deposit their part of the fees and administrative charges before the said ICA, though the Petitioner did deposit the same. And the proceedings were closed by its letter, Annexure-L dated 9.9.2014 hence these petitions under Section 11 of the Act was filed before this Court on 16.3.2015.3. By consent of learned counsels for both the parties, Hon'ble Mr.Justice Ashok B. Hinchigeri, a former Judge of this Court is appointed as 'Arbitrator' in the present case to conduct the arbitration proceedings at the Arbitration and Conciliation Centre, Bengaluru (Domestic and International), as per the Arbitration and Conciliation Centre Rules, 2012.4. Registry is directed to send a copy of this order to the Arbitration Centre, Bengaluru, forthwith.These petitions are accordingly disposed of."10.1.2 In the case of A.Ayyasamy -v- A.Paramasivam and others reported in (2016) 10 SCC 386 at para 12.2 it has been held thus:"12.2. When arbitration proceedings are triggered by one of the parties because of the existence of an arbitration agreement between them, Section 5 of the Act, by a non obstante clause, provides a clear message that there should not be any judicial intervention at that stage scuttling the arbitration proceedings. Even if the other party has objection to initiation of such arbitration proceedings on the ground that there is no arbitration agreement or validity of the arbitration clause or the competence of the Arbitral Tribunal is challenged, Section 16, in clear terms, stipulates that such objections are to be raised before the Arbitral Tribunal itself which is to decide, in the first instance, whether there is any substance in questioning the validity of the arbitration proceedings on any of the aforesaid grounds. It follows that the party is not allowed to rush to the Court for an adjudication. Even after the Arbitral Tribunal rules on its jurisdiction and decides that arbitration clause is valid or the Arbitral Tribunal is legally constituted, the aggrieved party has to wait till the final award is pronounced and only at that stage the aggrieved party is allowed to raise such objection before the Court in proceedings under Section 34 of the Act while challenging the arbitral award".10.2. Once the parties have agreed for conduct of the Arbitration in terms of the agreed mechanism, this Court cannot under the exercise of its power under Section 11 appoint an arbitrator, unless the parties arrive at an agreement superceding the earlier agreement and jointly request this Court to appoint an arbitrator.10.3. In the event of there being an agreed mechanism and one of the parties willing to abide by the same approaches this Court for appointment of an arbitrator since the other party has refused to abide by the agreed mechanism, this Court cannot independently appoint an arbitrator under Section 11, but would be required to refer the parties to the institution as per the agreed mechanism.10.4. Hence, I answer point no. (ii) above by holding that if the arbitration agreement entered into between the parties refers to an agreed mechanism for appointment of an Arbitrator under particular rules of Arbitration of an institution which provides a particular method or procedure for reference to the Arbitration, the parties will have to follow such method or procedure for reference to the Arbitration.11. POINT NO:3 : Can a matter which is barred by Limitation and or is a dead claim be referred to Arbitration?11.1. The learned Counsel for the Petitioner has relied upon the decision in Indian Oil Corpn. Ltd. v. SPS Engg. Ltd., (2011) 3 SCC 507 at page "16. The question whether a claim is barred by res judicata, does not arise for consideration in a proceeding under Section 11 of the Act. Such an issue will have to be examined by the Arbitral Tribunal. A decision on res judicata requires consideration of the pleadings as also the claims/issues/points and the award in the first round of Arbitration, in juxtaposition with the pleadings and the issues/points/claims in the second Arbitration. The limited scope of Section 11 of the Act does not permit such examination of the maintainability or tenability of a claim either on facts or in law. It is for the Arbitral Tribunal to examine and decide whether the claim was barred by res judicata. There can be no threshold consideration and rejection of a claim on the ground of res judicata, while considering an application under Section 11 of the Act."11.2. Relying on the above decision he submits that similar to the aspect of Res Judicata, the Limitation would also have to be left to be decided by an Arbitrator appointed.11.3. The learned counsel for the Respondent has relied on the following decisions:11.3.1 M/s Gujral Security Services vs D.S.C. Ltd. reported in 2009 SCC OnLine Del 2959- para 3:"3. I consider that once the parties had agreed upon a particular arbitration clause the parties are bound by that arbitration clause. The Petitioner in this case did not raise dispute about the Director of the Respondent being named as the Arbitrator. If the Petitioner was not agreeable to this arbitration clause, he could have refused to sign the contract in the very beginning."11.3.2 Speech and Software Technologies (India) (P) Ltd. v. Neos Interactive Ltd., reported in (2009) 1 SCC 475 at page 479:"11. By now it is well settled that exercise of power under Section 11(6) of the Act is judicial power. After the decision of this Court in SBP and Co. v. Patel Engg. Ltd. [(2005) 8 SCC 618] the Designated Judge has to consider the claim of both the parties to the matter and pass a reasoned order. It is also well settled that existence of arbitration agreement is a condition precedent before exercise of powers under Section 11(6) of the Act. The preliminary matters to be considered by the Court are: (1) existence of arbitration agreement, (2) territorial jurisdiction, (3) whether there are live issues to be referred to the Arbitrator, and (4) whether application is filed within the period of Limitation prescribed by the law. If the Court finds that the arbitration agreement does not exist or is rescinded then the prayer for referring the dispute to the Arbitrator will have to be rejected."11.4. Relying on the above decisions the Counsel for Respondent submitted that the Section 11 Court would have to decide on the aspect of Limitation, if and only if, the dispute was within the period of Limitation, the Section 11 court could refer the matter to Arbitration if the Court were to come to a conclusion that the dispute is barred by Limitation, the section 11 petition was to be dismissed.11.5. This question has vexed the Courts for the last two decades. Initially, an order under Section 11 was held to be an administrative order when the designate of the Chief Justice was required to only appoint an Arbitrator without giving any finding on Limitation. Subsequently, the said order was held to be a judicial order. Hence, there was a requirement to give a finding on the aspect of Limitation as also arbitrability of the dispute and only if the matter was within Limitation and arbitrable, an Arbitrator could be appointed.11.6. However, now all the issues have been laid to rest by way of amendment carried out to Section 11 by the introduction of Section 11(6A) and 11(6B) of the A&C Act. In view of the said amendment, an enquiry by this Court is limited only to the aspect of identifying, verifying and coming to a conclusion that there is an arbitration agreement between the parties.11.7. Sections 11(6A) and 11(6B) of A&C Act are reproduced herein for easy reference:11. Appointment of arbitrators. --1. to 6 : xxxx"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 any 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 purpose of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court".11.8. In the above background I answer Point No 3 by holding that once the Section 11 Court were to come to a conclusion that there is an arbitration clause and/or an arbitration agreement which governs the dispute, the Section 11 Court would have no option but to refer the matter to Arbitration by appointing a suitable person as an arbitrator as per the arbitration agreement arrived at between the parties.11.9. If the clause provides for Arbitration by way of the agreed mechanism, Section 11 Court without expressing any opinion as regards the issue of Limitation and/or arbitrability thereof is required to refer the matter to the institution.11.10. Thus, the position of law as it stands today is that Section 11 Court cannot adjudicate as regards whether the claim is barred by Limitation and/or is a dead claim.12. POINT NO.4: Once invocation of arbitration clause is made and the recourse to Arbitration is taken up under the agreed mechanism, can an application under Section 11 of the A & C Act be maintainable merely on the ground that the other party has not agreed to follow the agreed mechanism?12.1. The learned counsel for the Respondent has relied on the following decisions:Delhi Inframart Pvt. Ltd. vs. N.K. Singhal & Anr. reported in 2014 SCC OnLine Del 2401"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. v. State of Punjab [2006 (3) RAJ 144 (P&H) (DB)], 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."12.2. Relying on the above decision he submitted that the Petitioner having once approached ICA and the application having been rejected for default the Petitioner is barred from approaching this Court under Section 11 of the A&C Act.12.3. It is noticed that in most the institutional arbitrations, the consequences of one of the parties not adhering to the agreed mechanism has been dealt with under the Rules framed by such institution for the purpose of the conduct of Arbitration under its aegis. Thus, it is those rules which would be applicable if one of the parties does not follow the procedure contemplated under the arbitration agreement thereof no application under Section 11 of A&C Act is maintainable and the issue would have to be resolved as per the rules of the institution.12.4. In the unlikely situation in the event of the rules of the institution not providing for the consequences or the parties not abiding by the agreed mechanism, in that event, there needs to be a remedy provided for the party invoking the arbitration clause, else, the defaulting party could take undue advantage of his own default and get away with the matter leaving the party invoking the arbitration clause without any remedy under the Arbitration Act. It is in order to cater to such a situation that under Section 11(6) of the A&C Act, the party invoking the arbitration clause on account of the default of the defaulting party could approach either the Hon'ble Apex Court, the High Court or the Institutions so nominated for the purpose of appointing the Arbitrator to resolve the dispute. Hence, I answer point No.IV by holding that:12.4.1. Once invocation of arbitration clause is made and recourses are taken up under the agreed mechanism, one of the parties cannot file an application under Section 11 of the A&C Act for appointment of an Arbitrator merely on the ground that the other party is not following the agreed mechanism.12.4.2. If the procedure on account of default as contained in the agreed mechanism would have to be followed for the purpose of appointment of an Arbitrator, it is only in the event of the agreed mechanism not providing for consequences of default that the party invoking the arbitration clause can approach the Hon'ble Apex Court, the High Court or the Institutions so nominated.12.4.3. In the event of noticee or the defaulting party resorting to dilatory tactics and/or actions which are contrary to the agreed mechanism, which can be made out exfacie, even in such a situation the party invoking the arbitration clause can approach the Hon'ble Apex Court, the High Court or the Institutions so nominated under Section 11(6) of the A & C Act.13. POINT NO.5: Whether issuance of notice under Section 11(4) of the Arbitration and Conciliation Act, 1996 is mandatory for the purpose of initiating proceedings under Section 11(6) of the Act?13.1. Learned counsel for the Respondent refers to Section 21 of the Act which reads as under:"21. Commencement of the arbitral proceedings unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute to be referred to Arbitration is received by the Respondent".13.2. Learned counsel for the Respondent refers to the decision in Alupro Building Systems Pvt. Ltd., vs. Ozone Overseas Pvt.Ltd., reported in 2017 SCC OnLine Del 7228 at para 30 which is extracted hereunder:"30. Considering that the running theme of the Act is the consent or agreement between the parties at every stage, Section 21 performs an important function of forging such consensus on several aspects viz. the scope of the disputes, the determination of which disputes remain unresolved; of which disputes are time- barred; of identification of the claims and counter-claims and most importantly, on the choice of Arbitrator. Thus, the inescapable conclusion on a proper interpretation of Section 21 of the Act is that in the absence of an agreement to the contrary, the notice under Section 21 of the Act by the Claimant invoking the arbitration clause, preceding the reference of disputes to Arbitration, is mandatory. In other words, without such notice, the arbitration proceedings that are commenced would be unsustainable in law."13.3. A plain reading of Section 21 indicates that except where the parties have agreed to the contrary, the date of commencement of the arbitration proceedings would be the date on which the recipient of the notice receives from the Claimant, a request for referring the disputes to Arbitration.13.4. Section 11(4) is reproduced hereunder for easy reference:(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 the Chief Justice or any person or institution designated by him.13.5. A perusal of the above sub-section would indicate that if appointment procedure as agreed is not followed, an arbitrator can be appointed by the Chief Justice or any person or institution designated by the Supreme Court or as the case may be, High Court or any person or institution designated by such Court.13.6. Section 11(6) is reproduced hereunder:11. Appointment of arbitrators. --1. xxx2. xxx3. xxx4. xxx5. xxx6. 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 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.13.7. Juxtapposing Section 11(4) and 11(6) it is seen that in terms of Section 11(4)(a), a request has to be made by one party to the other party to appoint an arbitrator who is provided with 30 days to appoint an arbitrator. if such party have not to appoint an arbitrator , only then the power of appointment, as stated above by the Chief Justice or an institution would arise. However, in terms of Section 11(6), there is no requirement of any request to appoint an arbitrator, if the parties have failed to act as required under the agreed procedure, in that event the other party could request the Supreme Court as the case may be, High Court or any person or institution designated by such Court to take necessary measure unless the agreement on the appointment procedure provides other means for securing the appointment.13.8. Thus, I answer Point No.5 holding that there is no requirement of a notice to be issued when invoking Section 11(6) of the A&C Act which would be required if either 11(4) or 11(5) of the A&C Act have to be invoked.14. POINT NOs.6 & 7: Whether once an invocation is made under the agreed mechanism would right of the party having invoked the said agreed mechanism cease to exist by such invocation?andWhether in the event of there being any failure of complying with the agreed mechanism could a proceeding be initiated under Section 11 (6) of the Arbitration and Conciliation Act, 1996?14.1. The following decisions are referred to by learned counsel for the Respondent:14.1.1. Union of India Vs. M/s Bharat Battery Manufacturing Co. (P) Ltd., reported in 2018 SCC OnLine Del 11894 para 15:"15. As already noticed, the Respondent filed Section 11(6) petition on 30.03.2006 seeking appointment of an arbitrator. The appellant, thereafter, said to have appointed one Dr. Gita Rawat on 15.05.2006 as a sole arbitrator, purportedly in terms of Clause 24 of the agreement.Once a party files an application under Section 11(6) of the Act, the other party extinguishes its right to appoint an arbitrator in terms of the clause of the agreement thereafter. The right to appoint Arbitrator under the clause of agreement ceases after Section 11(6) petition has been filed by the other party before the Court seeking appointment of an arbitrator."14.1.2. Dakshin Shelters (P) Ltd. v. Geeta S. Johari, reported in (2012) 5 SCC 152 at page 156."16. In view of the above, it cannot be said that the Designate Judge committed any error in nominating Mr D.V. Seetharama Murthy, Senior Advocate as an arbitrator on behalf of the Petitioner. The order of the learned Single Judge is in conformity with the decision of this Court in Bharat Battery Mfg. Co. (P) Ltd. [(2007) 7 SCC 684] wherein this Court stated as follows: (SCC p. 689, para 12)"12. ... Once a party files an application under Section 11(6) of the Act, the other party extinguishes its right to appoint an arbitrator in terms of the clause of the agreement thereafter. The right to appoint Arbitrator under the clause of agreement ceases after Section petition has been filed by the other party before the Court seeking appointment of an arbitrator."14.2. Once a party has invoked the agreed mechanism and approached the concerned institution for appointment of an arbitrator, that party has complied with its initial basic requirement. It is for the other party to act in terms of the agreed procedure and do the needful. However, if the other party were not to do the needful and/or refuse to act as per the agreed procedure as stated above, the rules of the institution as regards the conduct of Arbitration would have to be followed or if the rules are silent, Section 11 Court would have the jurisdiction to pass necessary orders on the same.14.3. There may also arise peculiar situations where despite the rules providing for, the actions to be taken in a situation where the other party has failed to act in terms of the agreed procedure and the rules of the institution are not able to adequately address this situation, in such a situation, I am of the considered opinion that rights of the parties invoking the agreed mechanism cannot be allowed to be frustrated by the other party resorting to any dilatory or underhand tactics.14.4. A party to an arbitration clause cannot be left remediless. The concept of Ubi jus ibi remedium would always come into play and wherever there is injury, there requires to be a remedy provided.14.5. In those circumstances, the party invoking the agreed procedure could always approach Section 11 Court for a proper redressal and the mere invocation of the agreed mechanism, without the
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agreed mechanism being followed would not disentitle the person invoking the agreed mechanism from approaching Section 11 Court. As a corollary, it could have to be held that merely because the agreed mechanism has been invoked, the right of the party invoking the same would not be lost or cease to exist merely on such invocation.14.6. Thus I answer Point Nos.6 and 7 by holding that once an invocation is made under the agreed mechanism, the right of the party invoking the said agreed mechanism would be governed by the said agreed mechanism. In the event of there being a failure on the part of the noticee in complying with the agreed mechanism, then the procedure prescribed under the agreed mechanism would have to be followed. In the event of the notice failing to act in terms of the agreed procedure and the rules of the institution are not able to adequately address this situation, in such a situation, the party invoking the arbitration clause could take always approach Section 11 Court.15. POINT NO.8 : What Order ?15.1. In view of the above discussions and in the facts of the matter, as could be seen the Petitioner had approached the Prl. District and Sessions Judge, Bellary under Section 9 of A&C Act seeking for an order of injunction, the same was opposed by the respondents herein contending that the Arbitration being provided for under the aegis of ICA, Section 9 petition is not maintainable.15.2. Subsequently, the Petitioner invoked the arbitration clause on 1.7.2014 and requested the ICA to appoint an arbitrator. While doing so, the Petitioner had also made payment of the due amounts.15.3. At that time, respondent got issued a reply through his legal counsel on 19.9.2013 contending that the respondent had not agreed for Arbitration as per the Rules of the ICA, the said clause had been unilaterally inserted by the Petitioner in the contract and had further contended that appointment of an arbitrator could only be made under Section 11 of A&C Act.15.4. In view thereof, the respondent is stated to have filed proceedings under Section 11 of the A&C Act before the High Court of Judicature at Hyderabad in A.A. No.139/2013 seeking for appointment of an arbitrator. This fact was informed to the ICA. Hence, the ICA on 5.8.2014 closed the reference.15.5. It is pursuant thereto that the Petitioner filed the present petition under Section 11(6) of the A&C Act on 13.2.2015.15.6. The proceedings before the High Court of Hyderabad in A.A. No.139/2013 came to be withdrawn on 11.3.2020 by the respondent.15.7. The respondent has thereafter in the present proceedings sought to contend that the petitioner not having followed up its remedy before the ICA, the present petition is not maintainable.15.8. Thus, from the above, it is seen that the respondent has been taking contradictory stands in the matter from the very beginning. Initially it took up a stand that ICA was applicable, later changed the stand that ICA was not applicable, then took up a stand that Arbitrator would have to be appointed under Section 11 of the A&C Act, then he has withdrawn the said petition and in the present petition, the respondent is contending that once the Petitioner has exercised his rights under the ICA, proceeding under Section 11 of the A&C Act is not maintainable.15.9. Such a stand being taken by the respondent is gross abuse of the process of this Court apart from causing grave injustice to the Petitioner. It is on account of their dilatory tactics that the matter has been pending from the year 2014 and the arbitration proceedings could not even be commenced on account of the dishonest stand taken by the respondent from time to time.15.10. Though as observed, it is the ICA which would have the jurisdiction over the matter, Sri.Aravind Kulkarni, learned counsel for the Petitioner would submit that the Petitioner is at its wits end and is agreeable for either Arbitration under the ICA or under Section 11 of the A&C Act. The Petitioner only wants the proceedings to commence and not be derailed by the dilatory tactics of the respondent.16. Taking the above factors into consideration, I am of the opinion that there would be no purpose served referring the parties once again to follow the agreed mechanism under the ICA, I pass the following:ORDERi. The Petition is allowed.ii. I hereby appoint Sri.A.V.Chandrashekhar, Former Judge of this Court to accept the reference and arbitrate the dispute between the parties.iii. I also award cost of Rs.50,000/- to the Petitioner in the present proceedings, on account of the dilatory tactics adopted in the present petition from the time of its filing to now.iv. Petitioner is at liberty to claim actual expenses incurred before the ICA, this Court, as also the High Court of Andhra Pradesh in the said arbitral proceedings along with its other claims.v. All defence/s of the respondent on merits except as regards the appointment of an arbitrator are kept open.