Sh. Kashmir Singh (Government Contractor) v. The Chief General Manager H.P. Telecom Circle & ors.

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, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;” 2(1)(c) Section 11 of the Act pertains to appointment of arbitrators. Relevant portion of this Section is as follows:- ‘11. Appointment of arbitrators.—(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. (2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. (3A) The Supreme Court and the High Court shall have the power to designate, arbitral institutions, from time to time, which have been graded by the Council under Section 43-I, for the purposes of this Act: Provided that in respect of those High Court jurisdictions, where no graded arbitral institution are available, then, the Chief Justice of the concerned High Court may maintain a panel of arbitrators for discharging the functions and duties of arbitral institution and any reference to the arbitrator shall be deemed to be an arbitral institution for the purposes of this section and 7 ( 2025:HHC:305 ) the arbitrator appointed by a party shall be entitled to such fee at the rate as specified in the Fourth Schedule: Provided further that the Chief Justice of the concerned High Court may, from time to time, reviews the panel of arbitrators. (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, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be. (5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made on an application of the party in accordance with the provisions contained in sub-section (4). (6) 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, The appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be to take the necessary measures, unless the agreement on the appointment procedure provides other means for securing the appointment. (6A) xxx xxx (6B) The designation of any person or institution by the Supreme Court or, as the case may be, the High Court, for the purposes of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court. (7) – 11(A) xxx xxx” 8 ( 2025:HHC:305 ) 2(ii) Comparison of Section 11(6) as it stood before and after the amendment of the Arbitration and Conciliation Act, 1996 on

23.10.2015 (by Act 3 of 2016) , may first be noticed:- Section 11(6) before 2015 amendment. Section 11(6) after 2015 amendment. (6) Where, under an appointment procedure agreed upon by parties,— (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, agreement expected of them under that procedure; or (c) a person, including an institution, function entrusted to him or it under that procedure, (6) Where, under an appointment procedure agreed upon by parties,— (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, reach an agreement expected of them under that procedure; or (c) a person, including an institution, function entrusted to him or it under that procedure, to perform any to perform any a party may request the Chief Justice or any person or institution designated by him necessary measure, unless agreement on the appointment procedure provides other means for securing the appointment. the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be the necessary measures, unless the agreement on the appointment procedure provides other means appointment. for securing The words ‘Chief Justice’ existing in Section 11 (4), (5) & (6) were substituted with ‘Supreme Court’ or, as the case may the ‘High Court’. The other provisions of Section 11 were also amended accordingly. 9 ( 2025:HHC:305 ) Use of the words ‘High Court’ in Section 11(6) of the Act instead of ‘Chief Justice’ has given rise to the question in the present case that when the appointment of the arbitrator is not by the Chief Justice but by the High Court of Himachal Pradesh and incidentally this High Court exercises original civil jurisdiction and falls within the definition of ‘Court’ under Section 2(1)(e) then by virtue of Section 42 of the Act, objections challenging the arbitral award should also be filed before this Court.

#3. Legal Position The question – Whether appointment of arbitrator by the Chief Justice under the Act (prior to 2015 amendment) was an administrative or judicial act came up for consideration in several cases. 3(i). Konkan Railway Corpn. Ltd. & others vs. Mehul Construction Co.2, held that order of appointment of arbitrator passed under Section 11(6) was administrative in nature. The Chief Justice does not function as a Court or a Tribunal. The said order cannot be subjected to judicial scrutiny of the Supreme Court. The nature of function performed by the Chief Justice being essentially to aid, constitution of the Arbitral Tribunal cannot be held to be a judicial function or otherwise legislature would have used the 2 (2000) 7 SCC 201 10 ( 2025:HHC:305 ) words ‘Court’ or ‘a judicial authority’ instead of choosing the expression ‘the Chief Justice or his nominee’. Relevant paras from the judgment are as under:- “4. … … Sundaram Finance case3 while considering the scope of fact a Bench of this Court In Section 9 of the Act has approached the problem from this perspective and incidental observation has been made that Section 11 does not require the Court to pass a judicial order appointing arbitrator. The nature and function performed by the Chief Justice or his nominee under sub- section (6) of Section 11 being essentially to aid the constitution of the arbitral tribunal cannot be held to be a judicial function as otherwise the legislature could have used the expression ‘court’ or ‘judicial authority’ instead of choosing expression ‘the Chief Justice or his nominee’. If a comparison is made with the English Arbitration Act 1996 it would appear that under the English Act it is the Court which has been vested with the function of appointment of an arbitrator upon failure of the agreed appointment procedure and an order made by the Court becomes appealable under Section 11(5) whereas under the Arbitration and Conciliation Act of 1996 in India the power of appointment is vested with the Chief Justice or his nominee.

#5. An analysis of different sub-sections of Section 11 would indicate the character of the order, which the Chief Justice or his nominee passes under Sub-section (6) of Section 11. Sub-section (3) and sub-section (4) deals with cases, in which a party fails to appoint an arbitrator or the arbitrators fail to agree on the third arbitrator and thus seeks 3 (1999) 2 SCC 479 11 ( 2025:HHC:305 ) to avoid frustration or unreasonable delay in the matter of constitution of the arbitral tribunal. It authorises the Chief Justice of India or the Chief Justice of a High Court concerned, or any person or institution designated by him to make the appointment upon request of a party, if the other party has failed to appoint an arbitrator within thirty days from the receipt of a request to that end. Sub-sections 4, 5 and 6 designedly use the expression ‘Chief Justice’ in preference to a Court or other authority as in paragraphs (3) and (4) of Article 11 of the Model Law, obviously for the reason that the Chief Justice acting in his administrative capacity, is expected to act quickly without encroaching on the requirements that only competent persons are appointed as arbitrators. Sub-section (4) does not lay down any time limit within which the Chief Justice or his nominee, designated by him, has to make the appointment. It however expects that these functionaries would act promptly. While sub-sections (4) and (5) deal with removal of obstacles arising in the absence of agreement between the parties on a procedure for appointing the arbitrator or arbitrators, sub- section (6) seeks to remove obstacles arising when there is an agreed appointment procedure. These obstacles are identified in Clauses (a), (b) and (c) of sub-section(6). Sub- section(6) provides a cure to these problems by permitting the aggrieved party to request the Chief Justice or any person or institution designated by him to take the necessary measure i.e. to make the appointment, unless the agreement on the appointment procedure provides other means for securing the appointment. Sub-section(6), therefore, aims at removing any dead-lock or undue delay in the appointment process. This being the position, it is reasonable to hold 12 ( 2025:HHC:305 ) that while discharging functions under sub- section(6), the Chief Justice or his nominee will be acting in his administrative capacity and such a construction would subserve the very object of the new Arbitration Law.

#6. The nature of the function performed by the Chief Justice being essentially to aid the Constitution of the Arbitration Tribunal immediately and the legislature having consciously chosen to confer the power on the Chief Justice and not a Court, it is apparent that the order passed by the Chief Justice or his nominee is an administrative order, as has been held by this Court in Ador Samia case4 and the observations of this Court in Sundaram Finance Ltd.3 case also is quite appropriate and neither of those decisions require any re-consideration. This being the position even an order refusing to appoint an arbitrator will not be amenable to the jurisdiction of this Court under Article 136 of the Constitution. Needless to mention such an order refusing to appoint an arbitrator after deciding the contentious issues would be an act of non-performance of duty and in view of what has been stated earlier the concerned authority could be directed by mandamus to perform its duty.” 3(ii) Konkan Railway Corpn. Ltd. & others2 was approved by the Constitution Bench of the Apex Court in Konkan Railway Corporation Ltd. & another vs. Rani Construction Pvt. Ltd.5 holding that nature of function performed by the Chief Justice or his nominee under Section 11(6) of the Act is purely administrative. It is