Failure to nominate an arbitrator permits the court to constitute the arbitral tribunal under Section 11(6).

The applicant, M/s Reinforced Earth Pvt. Ltd. (“REIPL”), was engaged by the respondent, M/s Amar Infrastructure Ltd., under Work Order No. AIL/OD01/2022/01 dated 2 August 2022 for reinforced-earth works on the NH130CD OD1 Dhanara–Hatibena Section, involving design and drawings, supply of materials, and provision of moulds, for a total value of ₹3,67,54,900 and an agreed completion period of eight months.

REIPL alleged delays attributable to the respondent, including delayed approvals, non-availability of work fronts and machinery, and slow progress at the site.

It claimed that, against 12 running account bills and tax invoices amounting to ₹2,48,78,784, the respondent paid only ₹2,00,22,422, leaving an outstanding amount of ₹48,56,362.

After correspondence and unsuccessful efforts to resolve the payment and project-related disputes, REIPL issued a notice dated 13 November 2024 under Clause “P” of the Work Order invoking arbitration and requested the respondent to appoint its nominee arbitrator within 30 days.

The respondent did not appoint an arbitrator within the stipulated period, leading REIPL to file an application under Section 11(6) of the Arbitration and Conciliation Act, 1996.

During the proceedings, the applicant proposed Hon’ble Justice V.P. Vaish (Retd.), while the respondent proposed Hon’ble Justice R.C.S. Samant (Retd.) as its nominee arbitrator.

Whether the respondent’s failure to appoint its nominee arbitrator in accordance with the agreed arbitration procedure justified court intervention under Section 11(6) of the Arbitration and Conciliation Act, 1996?

Whether Hon’ble Justice V.P. Vaish (Retd.) and Hon’ble Justice R.C.S. Samant (Retd.) should be appointed as nominee arbitrators, with liberty to them to appoint the third arbitrator?

The Court applied Section 11(6) of the Arbitration and Conciliation Act, 1996, which permits judicial appointment of an arbitrator where a party fails to act in accordance with the agreed appointment procedure.

It also referred to the 30-day period contemplated under Section 11(4)(a), within which the relevant party is required to appoint its nominee arbitrator after receipt of the request.

The Court gave effect to Clause “P” of the Work Order, which contained the parties’ arbitration and arbitrator-appointment mechanism.

No judicial precedent was cited or relied upon in the order.

The Court found that the applicant had invoked the arbitration clause by notice dated 13 November 2024 and that the respondent had failed to nominate its arbitrator despite receipt of the notice and expiry of the prescribed period.

This failure constituted non-compliance with the agreed appointment procedure and warranted intervention under Section 11(6).

Since counsel appearing for the applicant and respondent proposed Justice V.P. Vaish (Retd.) and Justice R.C.S. Samant (Retd.), respectively, the Court accepted those proposals and appointed them as arbitrators representing the parties.

The two appointed arbitrators were directed to appoint the third arbitrator and thereafter adjudicate the disputes arising out of or relating to the Work Order.

Hon’ble Justice V.P. Vaish (Retd.), former Judge of the Delhi High Court, was appointed as the applicant’s nominee arbitrator, and Hon’ble Justice R.C.S. Samant (Retd.), former Judge of the Chhattisgarh High Court, was appointed as the respondent’s nominee arbitrator.

They were directed to appoint the third arbitrator and adjudicate the disputes between the parties.

The Registry was directed to communicate the order to both arbitrators, and their remuneration was left to be settled by mutual consent of the parties.