JUDGMENT M. Srinivasan, C.J. - There was an agreement between the parties dated 21-3-1986 in which were there was an arbitration clause. When dispute arose between the parties the petitioner applied to this Court under Sections 8 and 20 of the Arbitration Act, 1940 for appointment of an Arbitrator. That was taken on file as C.S. No. 33 of 1992. By order dated 5-3-1993 this Court directed the parties to appoint their respective Arbitrators. Pursuant thereto the petitioner appointed one Mr. S. K. Saini as an Arbitrator. The respondent appointed one Mr. C. N. Kaushal as its Arbitrator. Soon after the appointment of Mr. Kaushal, he sent a communication in 8-10-1993 that due to personal reasons he was unable to devote time to deal in the said case and, therefore, he resigned from the office of Arbitrator and requested the termination of his name. That was sent to the Registrar and copies were marked to the respondent and the Arbitrator appointed by the petitioner, Mr. S. K. Saini. According to the petitioners they did not receive the said communication from Mr. Kaushal. It is not clear whether Mr. Saini received the communication of Mr. Kaushal. On 19-10-1993 Mr. Saini wrote a letter to both the parties in which he had stated that an Umpire should be appointed by the court and the parties take necessary steps to get the Umpire appointed. He had stated very clearly that he cannot enter upon reference unless Umpire was appointed by the Court as it was essential to appoint the Umpire. 2. There was a full in the matter for about nearly three years thereafter. In June, 1996 the petitioner's Advocate sent a letter by registered post to the respondent in which the prior history was stated upto the date of the letter dated 19-10-1993 sent by Mr. Saini. After referring to that, the letter says that the Arbitration Act, 1940 stands repealed by Section 85 of the Arbitration and Conciliation Ordinance, 1996 with effect from 25-1-1996 and, therefore, the prior actions stood automatically annulled. In para 6 it was stated as follows : "(6) That in the matter of this dispute, proceedings have not started in the circumstances explained hereinabove. Therefore, the composition of the Arbitral Tribunal is now required to be settled in light of Sections 10 and 11 of the Ordinance. In para 6 it was stated as follows : "(6) That in the matter of this dispute, proceedings have not started in the circumstances explained hereinabove. Therefore, the composition of the Arbitral Tribunal is now required to be settled in light of Sections 10 and 11 of the Ordinance. My client suggests that a Sole Arbitration may be appointed by mutual consent, which will be conductive to the early settlement of the dispute. In case the appointment of sole Arbitrator is not agreeable to you, my client is not averse to the appointment of two Arbitrators, one to be nominated by either party. Your attention is invited to Section 11(4) of the Ordinance according to which the Arbitrator has to be appointed within 30 days from the date of receipt of this request, falling which, the appointment shall be made on the request of my client by the Hon'ble Chief Justice of H.P. High Court or any person or institution designated by him." 3. In reply thereto the respondent sent a letter on 22-7-1996 stating that Mr. Kaushal had already sent his resignation by a letter dated 8-10-1993 addressed to the Registrar of this court. In the last paragraph it is stated as follows : "for the foregoing reason and in compliance of the orders of the Hon'ble High Court of H.P., we propose the name of the following person for the purpose of settlement of dispute under Arbitration Act : Mr. Ramesh Malhotra, C/o. M/s. G.D. Techno Pvt. Ltd., M/19, Shopping Centre, Greater Kailash Part-II, New Delhi-110 048." 4. The petitioner sent a letter dated 5-8-1992 appointing one A. K. Ummat as its Arbitrator under Section 11 of the Arbitration and Conciliation Ordinance, 1996. In that letter it was also stated that the petitioner was not aware of the resignation of Mr. Kaushal which took place in 1993. It was added that the petitioner was all the time led to believe that Mr. Kaushal was in position and the other Arbitrator Mr. Saini continued to pursue the appointment of Umpire with him unfruitfully. 5. The Arbitrator appointed by the petitioner, namely, Mr. A. K. Ummat, sent a letter to the respondent's Arbitrator Mr. Ramesh Malhotra, suggesting the name of Mr. R. N. Aggarwal, Retired Chief Justice of Delhi High Court as the third Arbitrator. Saini continued to pursue the appointment of Umpire with him unfruitfully. 5. The Arbitrator appointed by the petitioner, namely, Mr. A. K. Ummat, sent a letter to the respondent's Arbitrator Mr. Ramesh Malhotra, suggesting the name of Mr. R. N. Aggarwal, Retired Chief Justice of Delhi High Court as the third Arbitrator. There was no reply from the said Arbitrator and he again sent a reminder on 31-8-1996. Mr. Ramesh Malhotra sent a reply to Mr. Ummat one 3-9-1996 in which it was stated that the matter should be discussed considering various other members suitable for that purpose and arrive at a suitable Presiding Arbitrator acceptable to both. He has also requested Mr. Ummat to suggest other names for the purpose of third Arbitrator so that the matter could be proceeded further. Thus, the name suggested by the Arbitrator of the petitioner was not accepted by the Arbitrator of the respondent. Then a letter was sent by Mr. Ummat to the petitioner herein on 10-9-1996 stating that the third Arbitrator could not be agreed upon and since the period of 30 days was already over, the petitioner should take further action in matter. 6. Thereafter the petitioner has approached this Court with this application on 10-2-1997. The application is for appointment of third Arbitrator under Section 11 of the present Arbitration Act, who shall act as the Presiding Arbitrator. There is a further prayer for appointment of a retired Chief Justice/Justice of the High Court of Punjab and Haryana at Chandigarh or the High Court of Himachal Pradesh at Shimla or the High Court of Delhi to act as the third Arbitrator as may be considered appropriate. This application is opposed by the respondent. The main contention of the respondent is that the application is barred by limitation as it is beyond a period of three years, since the passing off the order by the Court in 1993 in C.S. No. 33 of 1992. It is further contended that the provisions of the old Arbitration Act would apply and it is not open to the petitioner to invoke the provisions of the new Act which has come into force on 25-1-1996. It is argued that under the old Act, Section 37 provides for limitation and under the provisions of the Limitation Act the application ought to have been filed within a period of three years under the residuary clause. It is argued that under the old Act, Section 37 provides for limitation and under the provisions of the Limitation Act the application ought to have been filed within a period of three years under the residuary clause. It is also contended that the claim itself is barred by limitation and if a suit is to be instituted it would be barred by the law of limitation. 7. From a perusal of Annexures P-6, P-7 and P-8 it is very clear that the parties had after the passing of the Arbitration and Conciliation Ordinance, 1996 agreed to appoint Arbitrators and they have pursuant thereto appointed their respective Arbitrators. In Annexure P-6, the relevant passage is in para 6 which I have extracted earlier. That shows that the petitioner had invoked expressly the provisions of Sections 10 and 11 of the Ordinance and also drawn the attention of the respondent to Section 11(4) of the Ordinance, where a reference is to Section 85 of the Ordinance. When the said letter has been received by the respondent and in reply thereto the respondent has merely appointed an Arbitrator of his own, without any demur to the averments contained in Annexure P-6, it cannot be contended that there was no agreement on the part of the respondent to make the provision of the new Act applicable in the proceeding. Nor can it be contended that the said letter dated 22-7-1996 Annexure P-7 was only in compliance with the order of this Court made on 5-3-1993 which cannot confer any right on the petitioner to invoke the provisions of the new Act or make the provisions of the new Act applicable be itself. 8. Section 1 of the Arbitration and Conciliation Act, 1996 makes it applicable throughout the country excepting with reference to certain parts of the Act not being applicable to the State of Jammu and Kashmir. By virtue of Section 1(3) the Act, has come into force on 25-1-1996. Section 11 provides that failing any agreement between the parties in 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. By virtue of Section 1(3) the Act, has come into force on 25-1-1996. Section 11 provides that failing any agreement between the parties in 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. Sub-section (4) of Section 11 provides that if the appointment procedure of sub-section (3) applies and a party fails to appoint the Arbitrator within 30 days from the date of a request to do so from the other party or the two appointed Arbitrators fail to agree on the third appointment, the appointment shall be made upon request of a party by the Chief Justice. Section 21 provides that unless otherwise agreed by the parties, the arbitral proceeding in respect of a particular dispute commences on the date on which a request for that dispute is received by the respondent. Section 43 provides for the applicability of the Limitation Act, 1963 to arbitration as it applies to proceedings in Court. Under sub-section (2) of Section 43 the arbitration shall be deemed to have commenced from the date referred to in Section 21. Section 85 provides that the Arbitration (Protocol and Convention) Act, 1937, Arbitration Act, 1940 and the Foreign Awards (Recognition and Enforcement) Act, 1961 were repeated. Sub-section (2) reads as follows : "(2) Notwithstanding such repeal : (a) The provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Ordinance came into force unless otherwise agreed by the parties but this Ordinance shall apply in relation to arbitral proceedings which commenced on or after this Ordinance comes into force; (b) All rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Ordinance, be deemed respectively to have been made or issued under this Ordinance." 9. The provision in Section 85 clearly shows that normally the provisions of the repealed Acts could apply to the proceedings which commenced before the present Act came into force. But there could be an agreement between the parties otherwise. The means that parties could agree that the proceedings should be governed by the present Act. I have already referred to Section 21 under which the arbitration proceedings shall be deemed to have commenced when a request was made for referring to arbitration. But there could be an agreement between the parties otherwise. The means that parties could agree that the proceedings should be governed by the present Act. I have already referred to Section 21 under which the arbitration proceedings shall be deemed to have commenced when a request was made for referring to arbitration. In the present case no doubt the proceeding commenced under the earlier Act and the Arbitrators were also appointed pursuant to the order of this Court, but neither of the Arbitrators entered upon the reference and one of the arbitrators had expressly resigned. The other Arbitrator had expressed his inability to proceed further with the matter as no third Arbitrator could be appointed. In that situation Annexure P-6 was written by the petitioner to the respondent drawing its attention to the provisions of the new Arbitration Ordinance which at that stage was Ordinance and which later became the Act. It may be noted that the Act has come into force with effect from the date of the Ordinance itself. Thus, when the petitioner drew the attention of the respondent expressly to the provisions of the new Act it was the duty of the respondent to demur and say that it was not agreeable either to continue the arbitration proceeding or to the applicability of the new Act to the proceedings. The respondent ought to have informed the petitioner that the new Act could not apply and under the provisions of the old Act the proceedings had become time barred and nothing could be done further. Instead of doing so, the respondent chose to appoint the Arbitrator of its own, one Ramesh Malhotra. That conduct of the respondent shows that it was agreeable to the applicability of the provisions of the new Act and consequently appointed the Arbitrator. When a new Arbitrator has been appointed by the respondent under the provisions of the new Act it was certainly open to the petitioner to appoint its own Arbitrator under the provisions of the new Act inasmuch as the Arbitrator appointed earlier had not entered upon the reference and had not done anything pursuant to his appointment as Arbitrator. Hence it follows that the two Arbitrators appointed by the respective parties were to proceed under the provisions of the new Act. Hence it follows that the two Arbitrators appointed by the respective parties were to proceed under the provisions of the new Act. They did so and one of the Arbitrators suggested the name of the third Arbitrator and sent a communication to the other Arbitrator. The other Arbitrator had not accepted that name and requested for suggesting other names. At that stage the Arbitrator appointed by the petitioner informed the petitioner that the matter must be moved before the court. Consequently the provisions of Section 11 have been invoked by the petitioner herein. 10. The above discussion will clearly show that the first two contentions put forward by the respondent are unsustainable. The proceedings are governed by the provisions of the new Act and they are not barred by the limitation inasmuch as the petitioner has come to this court within one year from the date of the appointment of Arbitrator under Annexures P-7 and P-8. 11. The contention that the main claim will be barred by limitation is not available in these proceedings. It is open to the respondent to raise that contention before the Arbitrators and the same should be considered by the Arbitrators themselves. 12. In the result, I accept the prayer of the petitioner and appoint Shri Roop Singh Thakur, a retired Judge of this High Court as the third Arbitrator. This petition is accordingly ordered. The Registry shall communicate a copy of this order to both the Arbitrators as well as the third Arbitrator now appointed. Petition allowed.