Report No. 176
2.8.13 Section 11 (6):
Coming to sec. 11(6), the relevant provision is in three clauses and reads as follows:-
"Sec.11(6): Where under an appointment procedure agreed upon by the parties -
(a) a party fails 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, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment."
But in Dattar Switchgear, the Supreme Court while dealing with section 11 (6) refuse to hold that there are any time limitation so far as section 11 (6) is concerned. However, the party could take the measures referred to in section 11 (6) as long as the other party has not approached to the court under section 11. In regard to section 11 (6), Commission proposes that if the appointment procedure as agreed to, but no measures have been take under that procedure, are right to the said measures shall be deemed to have been waived. Commission is not proposing any other time limits.
A suggestion was also made at the Bombay seminar based on sec.17 of the English Act, 1996 to make a provision for treating an arbitrator appointed by one party as the sole arbitrator if the other party does not appoint its arbitrator. The Commission is not inclined to recommend any such provision. This situation is amply covered by sec.11(4)(a). The proposed amendments to section 11 are stated below in para 2.8.15
2.8.14 Section 42 and Section 11:
In as much as the application under Section 11 is to the Supreme Court or the High Court on the judicial side, it is necessary to make a provision in Section 42 as to where the subsequent applications are to be filed. This is provided in proposed sub-section (5) of Section 42. Under that sub section, if the arbitration is in India and the property is in India, the subsequent applications are to be filed in the courts specified in proposed Section 2 (1) (e), i.e., the Prinicipal court in the District or in the city or on the original side of the High Court, depending on the pecuniary limits of the courts (see para 2.30.5 and 2.30.6).