Priya Gour
Published on: 17th August, 2022 at 21:10 IST
The Jammu and Kashmir and Ladakh High Court bench headed by Chief Justice Pankaj Mittal said that a party seeking the appointment of an arbitrator through the court’s intervention must demonstrate failure by the other party in following the procedure and accepting the request for the appointment of an arbitrator. The parties must ensure this before approaching the court.
The bench was hearing a plea under Section 11(6) of the Jammu and Kashmir Arbitration and Conciliation Act, 1997 for the appointment of an independent arbitrator to resolve the dispute. The dispute concerned the respondent’s renewal of the petitioner’s allotment of space.
The petitioner claimed that he expected to renew of the agreement as per the past practice over the years. However, it was not the case and the renewal was not done. This led to a situation where the petitioner was asked to vacate the shop. Subsequently, he moved an application under Section 9 of the Act for interim protection before the District Judge/Additional District Judge, Jammu.
The respondent said that there was no arbitration clause in their agreement. Therefore, the petitioner directly approached the High Court requesting an arbitrator under Section 11, bypassing the general option of approaching the respondent first.
The bench said that the power of appointment of an arbitrator is a judicial power and not an administrative one. While doing so, the court must be assured [Section 11(6) of the Act] of the existence of the arbitration agreement between the parties, and also whether an arbitral claim is in place or not.
The bench observed, “In the absence of legal notice, demand for arbitration, and the mentioning of the specific dispute which requires adjudication, it cannot be said that there actually exists any arbitral dispute between the parties which is referable to arbitration.”
Section 11 states the appointment of arbitrators and that the procedure is left to the parties. However, the appointment can be done only when the parties fail to agree on the arbitrator within 30 days of the receipt of the request by one party.
Also, it is mandatory to prove the invocation of the arbitration clause by the party interested and its denial or inaction on part of the other party must have taken place. This shall be a per-requisite for appointment of arbitrator, hence it has to be established that the procedure for the appointment of arbitrator has failed. Only then the party can move to the court with the request.
The court noted that in this case, the petitioner has not followed the process and hence is not entitled to the appointment of an arbitrator.
Therefore, the bench dismissed the application.