It is clear on record that the notice for arbitration was served on 16.11.2022 and the receipt of the same is also not denied. Admittedly, the arbitrator was appointed vide communication dated 06.06.2023 whereas, the present application under Section 11(6) of the Act 1996 has been filed on 01.02.2023. Meaning thereby, the arbitrator, if any, has been appointed after the date of presentation of the present application before this Court. As is the settled position of law and as held by the Hon’ble Supreme Court in the case of Deep Trading Company v/s Indian Oil Corporation & Ors. (2013) 4 SCC 35 , if the arbitration clause is invoked by one of the parties vide a notice and despite service of the same, no arbitrator in pursuance to the same is appointed by the respondent department/authority, the right to appoint the same continues only till the date an application under Section 11 of the Act of 1996 is preferred by the applicant before the Court. But once an application is preferred before the Court in terms of Section 11 of the Act of 1996, the right of the opposite party to appoint the arbitrator, ceases. Further, the arbitrator appointed subsequent to the filing of the application under Section 11 of the Act of 1996, would be of no consequence and even if an award is passed by the said arbitrator, the same would be null and void.
