V.K Gupta, J.:— In this application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (Act, for short) the petitioners seeks, inter alia, a direction for appointment of an arbitrator. Appointment of an arbitrator is a subject covered under Section 11 of the Act.
2. Under sub-section (4) of Section 11 of the Act, the Chief Justice or any person or Institution designated by him has been empowered to appoint an arbitrator if a party to arbitration agreement fails to appoint an arbitrator within 30 days or the two appointed arbitrators fail to agree on the third arbitrator within a period of 30 days from the date of their respective appointments. Similarly, under sub-section (5) of Section 11 of the Act, in case of failure of an agreement referred to in sub-section (2) of Section 11 thereof, if the parties fail to agree on the appointment of a sole arbitrator within thirty days from the receipt of a request by one party, the appointment is required to be made by the Chief Justice or any person designated by him for this purpose, if so requested by a party.
3. Under sub-section (6) of Section 11 of the Act also, where the parties fail to act in the situations mentioned in clauses (a), (b) and (c) thereof, a party may request the Chief Justice or his nominee to appoint an arbitrator.
4. Sub-section (8) of Section 11 mentions the factors to be taken into consideration by the Chief Justice in appointing an arbitrator when it stipulates that while exercising his power of appointment of an arbitrator, the Chief Justice shall have due regard to the qualifications required of the arbitrator and other considerations as are likely to secure the appointment of an independent and impartial arbitrator.
5. Sub-section (12) of Section 11 defines the term “Chief Justice” so as to mean Chief Justice of India, in case of international commercial arbitrations and Chief Justice of High Court in case of other arbitrations.
6. The expression ‘Court’ has been defined in Section 2(e) of the Act. It reads as under:
“(e) “Court” means the principal Civil Court of original jurisdiction in a District, and includes the High Court in exercise of. its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;”
7. The subject relating to the appointment of an arbitrator is dealt with only in Chapter III of Part I of the Act which deals with “Composition of Arbitral Tribunal”. It is in this Chapter and under this heading, that in Section 11 power has been given to the Chief Justice to appoint the arbitrator. Undoubtedly the appointment of an arbitrator, on an application made by one of the parties involves a decision making process comprising the twin vital components and elements of consideration with regard to the points in issue, or the points of controversy between the parties and the actual act of appointment of the arbitrator. The act of actual appointment of an arbitrator has always to be preceded by a consideration as to whether in the facts and circumstances of the case the arbitrator in fact is required to be appointed or not. It is only after this issue is resolved that the question of appointment of an arbitrator arises. Whether in a given case the relationship of the two parties is such which can be said to give rise to a dispute or not, whether an arbitration agreement actually exists between the parties or not, or whether the disputes even if existing form the subject matter of the arbitration agreement are some of the features which can be said to be relevant to the question about the appointment of an arbitrator. The power to appoint an arbitrator being exclusively vested with the Chief Justice therefore under Section 11 of the Act, he alone has to decide all such questions. No one else can venture into the arena of examining the aforesaid questions with a view to find out whether the arbitrator has to be appointed or not because no one else has the power to appoint an arbitrator; this power vests exclusively with the Chief Justice.
8. The learned Advocate appearing for the petitioner argued that dual functions are prescribed under Section 11 of the Act, one by the Court having jurisdiction in the matter as defined in Section 2(e) of the Act and the other by the Chief Justice. The argument runs like this. First the Court shall consider the application for appointment of the arbitrator and after it comes to a finding that the application merits acceptance and that a case is made out for appointment of the arbitrator, it shall refer the application to the Chief Justice for passing the formal order of appointment of the arbitrator. On a plain reading of the Section it is clearly found that the argument is totally devoid of any force and has no merit. The exercise of power by the Chief Justice of appointing the arbitrator is neither formal, nor mechanical in nature. The process of appointing of the arbitrator, as indicated above involves the consideration of all the relevant issues and aspects of the matters in controversy and it is only after the Chief Justice decides that the application merits acceptance, he passes the order appointing the arbitrator. Undoubtedly Section 11, as indicated above, involves consideration of two vital components, which the learned Advocate for the petitioner referred to as dual functions, but both these twin components, or dual functions as one may call them, have to be performed and exercised by the Chief Justice alone and not by the Court since the Court has not been vested with any power either to appoint the arbitrator or to decide any issue or question relating to such appointment. The two components leading to the exercise of power of appointing the arbitrator have to be gone into by the Chief Justice alone. The dual functions, of consideration of the issues and of passing the order of appointment of the arbitrator have both to be performed by the Chief Justice. The Court does not come into picture at all. It finds no mention in Sec. 11 of the Act. In the Scheme of Sec. 11, the Court has no place. It is only the Chief Justice or his designated person or institution.
9. As already noticed, the expression ‘Court’ has been defined in Section 2(e) of the Act. Purposely the expression ‘Court’ does not find any mention, directly or indirectly or even remotely in Section 11 of the Act. This is so because there is no provision in the entire Act nor is there any scheme under the Act whereby the Court has been given any power to appoint the Arbitrator. The legislature has purposely omitted to mention “Court in Sec. 11 of the Act because it clearly intended that the power to appoint arbitrator and to decide all issues and questions relating to the exercise of such power should be exercised by the Chief Justice and not the Court. Court is distinct from the Chief Justice. If, therefore, the Court has not been given any power to appoint an arbitrator either under Section 11 or under any other provision of the Act, there is no. reason as to why an application under Section 11 of the Act should at all be placed before the Court for consideration or for orders. If the Court has no power to appoint an arbitrator, it has no power also to consider any issue relevant to the appointment of an arbitrator. This power vests with the Chief Justice alone or any person or institution designated by him for this purpose.
10. The Chief Justice has not designated me either as a person or as an Institution to make appointments of Arbitrators in terms of the power of designation conferred upon him under Section 11 of the Act. In the absence of any such designation therefore, I, in the exercise of my jurisdiction as Court within the meaning of the expression as defined in Section 2(e) of the Act cannot therefore venture into the arena of appointing an arbitrator in terms of Section 11 of the Act. Section 5 of the Act also clearly limits the extent of judicial intervention in matters governed by Part-I of the Act. Section S reads as under:
“5. Extent of judicial intervention.
Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.”
11. The intention of the Legislature is very clear. When a power is conferred in Part-I of the Act to a particular authority or institution, no judicial authority, which includes a Court as defined in Section 2(e) of the Act has any power to intervene in respect of such matter. If therefore such a judicial authority causes such an intervention in the exercise of the power in respect of such a matter, it shall plainly amount to exercising a jurisdiction which is not vested in such a judicial authority.
12. It is immaterial that as a Court I am exercising jurisdiction under the Act in respect of matters which are to be decided by the Court. That does not mean that I should encroach upon the jurisdiction of the Chief Justice, specially when the Chief Justice has not designated me or any other institution for exercising the power vested in him under Section 11 of the Act.
13. With the observations aforesaid, this application under Section 11 of the Act is released from this Bench and the same is directed to be placed before the Hon'ble acting Chief Justice for appropriate orders.
14. This order shall govern all other applications under Section 11 of the Act pending before this Court. All parties are to act on a signed copy of this Dictated Order on the usual undertaking.
15. Order accordingly.