1. The present application has been filed under Section 11(5) and (6)
of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the
Act’) seeking appointment of an independent Arbitrator to adjudicate the
disputes and differences which have arisen between the parties.
2. Learned counsel for the appellants submitted that there was an
agreement between the parties vide Annexure P-1 containing an arbitration
clause i.e. Clause 26, which provides for appointment of an Arbitrator. He
further submitted that the applicant, which is a Procurement Agency had
appointed an Arbitrator who passed an award but thereafter, when the
respondents filed the objections under Section 34 of the Act, the same were
allowed vide judgment dated 18.08.2022 (Annexure P-3) on the ground that the
Arbitrator was an interested party and could not have been appointed as an
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Arbitrator and therefore, the arbitral award itself was set aside. He further
submitted that it was thereafter that a notice was issued to the respondents vide
Annexure P-5 dated 13.11.2024 for fresh appointment of a Sole Arbitrator, to
which the respondents filed a reply stating that there was no necessity to
appoint an Arbitrator because there is no dispute left for adjudication and also
on the ground that Section 11 is barred by res judicata. He further submitted
that the aforesaid plea was not available with the respondents because once the
arbitral award has been set aside on the ground that the Arbitrator was an
interested party, which is violative of public policy, then a fresh Arbitrator is
required to be appointed as neither there is any other remedy available with the
applicant because of the existence of an arbitration clause nor the applicant can
file a civil suit in this regard and therefore, any independent Sole Arbitrator may
be appointed by this Court.
