S. N. KAPOOR ( 1 ) HEARD the learned counsel for parties. There is no. dispute that one of the terms of the arbitration is as under: 17 (D) "it is a further term of this contract that no person other than the Director General, Telecommunications, or the person appointed by him should act as arbitrator and that if for any reason that is not possible, the matter is not to be referred to arbitration at all. Upon every and any such reference the assessment of the costs incidental to the reference and award respectively shall be at the discretion of the arbitrator. " ( 2 ) THE Supreme Court in a similar matter way back in 1996 in DGSandd and Ors. Vs. UP Asbestos Ltd. on 12/7/1996 took the view that the High Court "had to remain within the parameter of the Arbitration Clause 24 which clearly states that the reference shall be made to the Sole Arbitration of an officer in the ministry of Law. The Arbitrator appointed in the instant case is a retired Judge. Whereas the Arbitration Clause envisages the appointment of a person who is an Officer in the Ministry of Law, meaning thereby who is in service at the relevant point of time. This is also the purport of this Court s decision in S. Rajan Vs. State of Kerala,air1992sc 1918" and the order of the High Court was set aside. ( 3 ) HOWEVER, the contention of the learned counsel for the petitioner is that having failed to appoint arbitrator on the request of the petitioner and after filing of the petition, the respondent could not deprive the petitioner of getting an independent arbitrator appointed by appointing an arbitrator Shri A. K. Mishra, GM, an officer of the Telecom Circle, Bihar, as arbitrator for settlement and determination of the dispute to arbitrate vide order dated 17/11/1999. ( 4 ) LEARNED counsel for the petitioner relies on a number of judgments. These are: B. T. Patil and Sons Belgaum (construction) Pvt. Ltd. Vs. Konkan Railway Corporation Ltd. and Anr. , 1998 (Suppi) Arb. LR 189, Larsen and Toubro Limited Vs. Konkan Railway Corporation Ltd. , 1999 (2) Arb. LR 354 (Bombay), Nandyal Co-op. Spinning Mills Ltd. Vs. K. V. Mohan Rao, 1993 (2) Scale 8 , MMTC Ltd. Vs. These are: B. T. Patil and Sons Belgaum (construction) Pvt. Ltd. Vs. Konkan Railway Corporation Ltd. and Anr. , 1998 (Suppi) Arb. LR 189, Larsen and Toubro Limited Vs. Konkan Railway Corporation Ltd. , 1999 (2) Arb. LR 354 (Bombay), Nandyal Co-op. Spinning Mills Ltd. Vs. K. V. Mohan Rao, 1993 (2) Scale 8 , MMTC Ltd. Vs. Sterlite Industries (India) Ltd. , (1996)6 SCC 716 and Ved Prakash Mithalvs. The Union of India and Ors. , AIR 1984 Delhi 325. ( 5 ) THERE is no dispute in between the parties that on 23/7/1997, the plaintiff called upon the Department to refer the disputes and differences regarding the unjustified and wrong deductions and recoveries made to arbitration in terms of arbitration agreement between the parties. It also appears to be true that the defendant only vide letter dated 17/11/1999 appointed Shri A. K. Mishra, GM, Officer of the Telecom Circle, Bihar, after filing of the petition. Consequently, there is no dispute that the matter is covered by the Arbitration and Conciliation Act, 1996. Accordingly, it would be desirable to refer to sub-sections (2), (4), (6) and (8) Section 11 of the Act. These read as under: 11. Appointment of arbitrators.- (1) xxx (2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (3) xxx (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, upon request of a party, by the Chief Justice or any person or institution designated by him. (5) xxx (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,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. (7) xxx (8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to - (a) any qualifications required of the arbitrator by the agreement of the parties; and (b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator. ( 6 ) IT is apparent that the petitioner had been left with no option but to approach the court for the respondent failed to act as required under that procedure in response to letter dated 17/11/1999. Consequently, clause (a) of sub-section (6) is attracted. Now, the question is whether the purpose of sub-section (6) is to compel the parties to adhere to the agreements or whether this court could appoint any other person beyond the scope of the arbitration clause. ( 7 ) IN respect of all the three clauses (a), (b) and (c) of sub-section (6) of Section 11, the phrase used is "under that procedure" meaning thereby the procedure laid down in the agreement. Sub-section (6) also provides that "the Chief Justice or any other person of institution designated by him to take necessary measure unless the agreement on the appointment procedure provides other means for securing the appointment". Accordingly sub-section (6) again requires strict adherence to the arbitration clause in view of clause "unless the agreement on the appointment procedure provides other means for securing the appointment". It also provides that this court is supposed "to take the necessary measure". In this light, there appears some substance in the submission made by learned counsel for the respondent that now after the appointment of the arbitrator by the defendant in terms of arbitration clause, there is no need to adhere to appoint any independent arbitrator, especially in the light of the judgment of the Supreme Court referred to in S. Rajan Vs. State of Kerala (supra ). ( 8 ) IT may further be mentioned that sub-section (8) also requires that the Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to (a) any qualifications required of the arbitrator by the agreement of the parties; and (b)other considerations as are likely to secure the appointment of an independent and impartial arbitrator. It may be mentioned that sub-section (4) of Section 11 would not be attracted in this case for it is not anappointment procedure referred to in sub-section (3) for sub-section (3) would be applicable only on failure to any agreement on a procedure for appointing the arbitrator or arbitrators for sub-section (3) starts with the phrase "failing any agreement referred to in sub-section (2 ). ( 9 ) THE contention of the learned counsel for the petitioner is that once the defendant failed to adhere to the agreement, they have lost all rights to appoint an arbitrator and the administrative head of the defendant had abdicated himself of the power to appoint arbitrator under the contract. ( 10 ) LEARNED counsel for the petitioner relied upon B. T. Patil and Sons Belgaum (Construction) Pvt. Ltd. Vs. Konkan Railway Corporation Ltd. and Anr. (supra ). In that case also, instead of three arbitrators, only two were appointed and HMJ M. B. Shah, the then Chief Justice of Bombay High Court, before his Lordship s elevation to Supreme Court, took the view in paras 23, 24 and 25 as under: "23. In the present case, under Clause 63. 3 of the General Conditions of the Contract, three Arbitrators are required to be appointed as the claim of the applicant or the disputed amount is for more than Rs. 5. 00 lacs. Further appointment of only two Arbitrators as provided in Clause 63. 3 (a) would not be consistent with the provisions of Section 10 (1) of the Arbitration Act, which provides that: "the parties are free to determine the number of Arbitrators, provided that such number shall not be an even number. " Hence, appointment of three Arbitrators is a must. Considering the dispute involved,it would be just and reasonable to follow the procedure prescribed under the agreement for appointment of two Arbitrators. 24. Hence, it is directed that for the purpose of appointing two Arbitrators, as referred to in Clause 63. " Hence, appointment of three Arbitrators is a must. Considering the dispute involved,it would be just and reasonable to follow the procedure prescribed under the agreement for appointment of two Arbitrators. 24. Hence, it is directed that for the purpose of appointing two Arbitrators, as referred to in Clause 63. 3, the Corporation shall send a panel of more than three names of officers of appropriate status in the Corporation to the Contractor, who shall suggest a panel of three names out of the list so sent by the Corporation, and Chairman and Managing Director of the Corporation will appoint one Arbitrator out of this panel as the contractor s nominee, and therefore, the second Arbitrator of equal status as Corporation nominee either from the panel or outside the panel, ensuring that one of the two Arbitrators so nominated is from the Accounts Department, who will be appointed as the Corporation s nominee. 25. With regard to the third Arbitrator, it would be reasonable to appoint a totally independent, impartial and disinterested person as the Presiding Arbitrator. Mr. Tulzapurkar, learned Counsel for the applicant, submitted that Justice S. C. Pratap be appointed as the third Arbitrator. The suggestion is accepted and Mr. S. C. Pratap (Retired Chief Justice of the Andhra Pradesh High Court) is appointed as the third Arbitrator and Presiding Arbitrator. " ( 11 ) FROM the above observations, it is apparent that the Bombay High Court adhered to the procedure laid down in the agreement. Thus, this judgment does not support the contention of the learned counsel for the petitioner. ( 12 ) IN Larsen and Toubro Limited Vs. Konkan Railway Corporation Limited (supra),another single Judge of Bombay High Court Dr. Saraf, J. dealing with the similar question,observed in para 6 as under: 6. ". . . The question that requires consideration, therefore, is whether in exercise of the power under sub-section of Delhi (6) of Section 11 of the Act, the Chief Justice or the person designated by him can appoint the arbitrators himself or he can merely order the appointing authority to act in terms of the agreed procedure and to appoint the arbitrators. On a careful consideration of the provisions of Section 11 of the Act, I am of the clear opinion that under sub-section (6) of Section 11 of the Act the Chief Justice should make the appointment himself. On a careful consideration of the provisions of Section 11 of the Act, I am of the clear opinion that under sub-section (6) of Section 11 of the Act the Chief Justice should make the appointment himself. He cannot and should not order the recalcitrant appointing authority to act under the procedure provided in the agreement. The words "to take necessary measure" in sub-section (6) of Section 11 of the Act mean that the Chief Justice should make the appointment himself. " ( 13 ) IN MMTC Ltd, Vs. Sterlite Industries (India) Ltd. (supra), a similar question arose for the two arbitrators failed to appoint the third arbitrator. The Supreme Court considered the question involved and took the view that in case of valid arbitration agreement, the appointment of arbitrators must, therefore by governed by Section 11 of the new Act and to appoint third arbitrator and the Chief Justice of the concerned High Court was directed "to appoint the third arbitrator under Section 11 (4) (b) of the New Act in view of the failure of the two appointed arbitrators to appoint the third arbitrator within thirty days from the date of their appointments. " ( 14 ) LEARNED counsel also referred to a Full Bench Judgment of this court in Ved Prakash Mithal Vs. The Union of India and Ors. (supra) wherein it was observed that in case of refusal by a defaulting party to appoint an arbitrator, the court was not powerless to appoint the arbitrator itself, ( 15 ) IN the light of the aforesaid discussion, it appears that the Chief Justice of the Court must act within the parameters of the arbitration clause on one hand, and at the same time,must ensure that the arbitrator so appointed, is an independent and impartial arbitrator, as required under sub-section (8) of the Act. The court, in terms of sub-section (8) of the Act, is supposed to make minimal interference in the agreement and is supposed to force the parties to adhere to the agreement. Consequently, it cannot be said that no person, who is not duly qualified in terms of the arbitration clause, shall be appointed by the court as an arbitrator. The court, in terms of sub-section (8) of the Act, is supposed to make minimal interference in the agreement and is supposed to force the parties to adhere to the agreement. Consequently, it cannot be said that no person, who is not duly qualified in terms of the arbitration clause, shall be appointed by the court as an arbitrator. The Director General of Telecommunications, having failed to appoint the arbitrator within time, has abdicated his rights to do so and the court will step in, in his place to make parties to adhere to the agreement. ( 16 ) ACCORDINGLY, I direct the defendant to send a panel of more than five names of officers of appropriate status eligible to be appointed as arbitrator within four weeks to the petitioner who shall suggest a panel of two names out of the list so sent by the defendant within four weeks thereafter and the Director General of Telecommunications may appoint one arbitrator out of this panel of two officers in terms of clause (d) of the arbitration agreement, within a period of two weeks thereafter. THE petition is disposed of accordingly.