A. R. LAKSHAMANAN, J. ( 1 ) THE prayer in this application under section 11 (6) of the Arbitration and conciliation Act, 1996 is to appoint an arbitrator or Arbitrators by this Court to arbitrate on all the claims forming part of dispute arising out of two Contract Nos. 66/ cao/c/sc/94 and 71/cao/c/sc/94. ( 2 ) IT is stated in the affidavit filed in support of this Arbitration Application that the applicant was awarded by the Opposite party No. 2 the above two contracts for earth work in formation and construction of bridges and miscellaneous works from ch. 26000 M to Ch. 27000 M in Reaches I and II in Forest area. During the execution of the said contracts, certain disputes arose and as per the terms and conditions of the contract agreements, which contain an arbitration clause, the applicant requested the 1st opposite party to refer the disputes for arbitration and the 1st opposite party agreed for the same and appointed not only two Arbitrators - Sri K. V. B. Reddy and sri N. S. N. Murthy - for both the contracts in terms of Clause 64 (a) (ii) of the General conditions of Contract, but also two umpires namely Sri B. R. Seth and sri N. Rama Subrahmanyam separately for each contract contrary to the provisions of arbitration Clause and Clause 64 (a) (ii) of general Conditions of Contract. Aggrieved by the action of the 1st opposite party in appointing two umpires named above, the applicant filed two Arbitration Applications in A. A. Nos. 27 and 28 of 1998 and the then chief Justice of this Court Sri U. C. Banerjee by order dated 31-7-1998 set aside the appointments of Presiding Arbitrators sri B. R. Seth and Sri N. Rama subrahmanyam and directed the abovenamed Arbitrators Sri K. V. B. Reddy and Sri N. S. N. Murthy to nominate an umpire within a period of three weeks from the dare of the said order and directed that the arbitration proceedings should be concluded within four months from the date of such nomination of the Umpire and also directed the respondent-authorities to refer the entire claim as lodged by the applicant provided that the same is not within the Clause 63 of General Conditions of Contract as excepted. Aggrieved by the said orders, the Opposite parties carried the matter to the Supreme Court of India by filing S. L. P. Nos. 9822 and 9823 of 1999, which were dismissed on 5-11-1999 and thus the orders of this Court in the above arbitration Application Nos. 27 and 28 of 1998 became final. The 1st opposite party is thus bound to implement the said orders without any further delay. Even before the s. L. Ps. were dismissed on 5-11-1999 one of the Arbitrators - Sri N. S. N. Murthy, a nominee of the 1st opposite party - resigned on 4-10-1999. It is, therefore, incumbent upon the 1st opposite party to appoint another Arbitrator in place of sri N. S. N. Murthy so that both the arbitrators Sri K. V. B. Reddy and the one appointed in the place of Sri N. S. N. Murthy will from a quorum and nominate umpire/ umpires in both the cases of dispute. The 1st opposite party failed to appoint another arbitrator as his nominee in place of the resigned Arbitrator Sri N. S. N. Murthy. Therefore, the applicant filed Contempt case No. 354 of 2000 against the General manager, which was dismissed on 8-12-2000 on the ground that neither the petitioner nor his counsel was present in the court when the case was called, but not on merits. After the dismissal of the said contempt case, the 2nd opposite party i. e. , chief Administrative Officer (Construction), south Central Railway, Secunderabad, by letters dated 16-3-2000 and 26-4-2001 sent to the applicant a panel of four names - m/s. V. Sri Hari, B. R. Seth, S. S. Natarajan and S. Chandrasekhar to select one from these four names as the applicant s nominee stating that in view of the orders of this court the value of the claim to be referred to arbitrators increased, in which case, it will be appropriate that all the Arbitrators should be the Senior Administrative Grade officers. A reply was sent on 14-5-2001 by the applicant to the 2nd opposite party stating, inter alia, that (i) from the said orders dated 31-7-1998 of this Court two Arbitrators Sri K. V. B. Reddy and sri N. S. N. Murthy shall continue to be arbitrators till the completion of the arbitral proceedings; but subsequent to the said orders dt. A reply was sent on 14-5-2001 by the applicant to the 2nd opposite party stating, inter alia, that (i) from the said orders dated 31-7-1998 of this Court two Arbitrators Sri K. V. B. Reddy and sri N. S. N. Murthy shall continue to be arbitrators till the completion of the arbitral proceedings; but subsequent to the said orders dt. 31-7-1998 Sri N. S. N. Murthy resigned from the Arbitral Panel and, therefore, Sri K. V. B. Reddy shall continue to be Arbitrator along with another Arbitrator to be nominated by the General Manager, (ii) both of them shall nominate the umpire who shall adjudicate the entire claim lodged by the applicant, (iii) therefore, it follows that Sri K. V. B. Reddy is very much a continuing Arbitrator, (iv) the only thing to be performed by the Railway is to appoint a substitute Arbitrator in the place of resigned Arbitrator Sri N. S. N. Murthy and (v) Sri K. V. B. Reddy who has been appointed by the 1st opposite party as the applicant s nominee stands good. In spite of applicant s reply dated 14-5-2001 the 2nd opposite party by his letter dated 12-6-2001 quoting his earlier letters dated 16-3-2001 and 26-4-2001 stated that the applicant did not advise the choice of the applicant s nominee and that no reply has been received till date. But, according to the applicant, the fact is that he has sent his reply on 14-5-2001 by Registered Post under postal Receipt No. 5863 of Tarnaka Post office, Secunderabad. The applicant stated that the letter dated 12-6-2001 contains a veiled threat that the 2nd opposite party would deem that he is no longer interested in the subject arbitral proceedings implying that the Arbitration Proceedings will be closed by the opposite parties as not pursued by him. Under these circumstances, the applicant filed the above application for appointment of an Arbitrator by this Court to fesolye the disputes. ( 3 ) THE respondents filed a counter affidavit stating, inter alia, that the present application is not tenable under law or on facts under sub-sections (5) and (6) of section 11 of the Act and the relief sought for therein cannot be granted, as they have already appointed the Arbitrators as per the terms and conditions of Clauses 63 and 64 of General Conditions of Contract. It is stated in the counter-affidavit that in order to implement the orders of this Court wherein all the claims referred by the applicant exceed more than Rs. 1. 00 crore and as per Clause 64 of General Conditions of Contract when the claims exceed more than Rs. 10. 00 lakhs two Arbitrators have to be appointed and in view of the amendment of the Act even number of Arbitrators cannot be appointed under Section 10 of the act, the respondents have addressed a letter on 16-3-2000 informing the applicant that senior Administrative Grade Officers have to be appointed for the constitution of arbitral Tribunal, but, meanwhile, the applicant by letter dated 20-3-2000 declined to change his mandated Arbitrator sri K. V. B. Reddy and the applicant further stated that the contempt is pending. It is further stated that in view of the resignation of one of the Joint Arbitrators sri N. S. N. Murthy and the claims exceed more than Rs. 1. 00 crore and as per the railway Board instructions Senior administrative Grade Officers are to be appointed for the heavy claims, fresh appointment of Arbitrators was necessitated. ( 4 ) A reply affidavit was filed by the applicant in response to the counter- affidavit filed by the respondents. ( 5 ) HEARD Sri G. S. V. Seshu, the learned counsel for the applicant and Sri Gowri shanker Sanghi, the learned counsel for the respondents. Perused the application, counter-affidavit, reply affidavit and the documents filed in the form of book Nos. 1 and 2. ( 6 ) THE provisions of the Act clearly lays down that where under an appointment procedure agreed upon by the parties (a) a party fails to act as required under the procedure, (b) a person including an institution fails to perform a function entrusted to him or it under that procedure, a party may request the Chief Justice or his designate to take the necessary measures, unless the agreement on the appointment procedure provides other means for securing the appointment. Therefore, the learned counsel for the applicant submits that the application under Section 11 (6)of the Act is perfectly in accordance with the provisions of the Act and-that the agreement provides for appointment of. Arbitrators, who will nominate an Umpire. Therefore, the learned counsel for the applicant submits that the application under Section 11 (6)of the Act is perfectly in accordance with the provisions of the Act and-that the agreement provides for appointment of. Arbitrators, who will nominate an Umpire. It is not in dispute that by letter dated 9-12-1999 the applicant, inter alia, demanded to appoint fresh arbitrator in the place of sri N. S. N. Murihy, who resigned on 4-10-1999 and the 1st opposite party is bound to appoint his nominee arbitrator within 15 days thereof i. e. , by 24-12-1999. But, the 1st opposite party failed and neglected to act in this direction and instead raised untenable issues. Therefore, the applicant had no other alternative except to approach this Court by way of this application. ( 7 ) I have perused Clause 64 of General Conditions of Contract, which provides that when the claim exceeds Rs. 10. 00 lakhs, two arbitrators have to be appointed and that no upper limit of the amount of the claim has been fixed. The said clause stipulates appointment of two Arbitrators, but does not stipulate whether the Arbitrators should be of Junior Administrative Grade or Senior administrative Grade Officers depending on the quantum of claim referred to arbitrators i. e. , if it exceeds Rs. 1. 00 crore. Therefore, the contention of the learned counsel for the respondent-Railways that senior Administrative Officers have to be appointed if the claim exceeds Rs. 1. 00 crore is not tenable. The respondents have illegally demanded for nominating a Senior administrative Grade Officer from the panel of Senior Administrative Grade. Officers given by the 1st respondent in the place of the Arbitrator nominated by the applicant, namely, Sri K. V. B. Reddy and therefore, the applicant declined to change his nominee Arbitrator Sri K. V. B. Reddy. The only course open to the 1st opposite party, therefore, is to appoint his nominee arbitrator in the place of the resigned arbitrator, which course of action the 1st respondent refused. In my view, the Board s instructions to appoint Senior administrative Grade Officers to arbitrate claims of Rs. 1. The only course open to the 1st opposite party, therefore, is to appoint his nominee arbitrator in the place of the resigned arbitrator, which course of action the 1st respondent refused. In my view, the Board s instructions to appoint Senior administrative Grade Officers to arbitrate claims of Rs. 1. 00 crore and above cannot override the provisions of the Act and clause 64 of the General Conditions of contract and hence, the question of appointing Senior Administrative Grade officers as Arbitrators for heavy claims does not arise and the same is contrary to the provisions of the Act and the guidelines thereunder. The arbitrators once appointed as per the procedure agreed upon by the applicant, the respondents cannot dismiss the Arbitrators except when the named arbitrators neglect or refuse or incapable of acting or overtaken by the death and as such, since the Arbitrator Sri N. S. N. Murthy has resigned as Arbitrator, the other arbitrator Sri K. V. B. Reddy has neither neglected nor refused to act nor incapable of acting and so he continues to be the nominee Arbitrator of the applicant till the completion of his assignment as arbitrator. As such, the appointment of sri K. V. B. Reddy cannot be kept in abeyance by the respondents. The failure to act on the illegal demand of the respondents to nominate the applicant s nominee from the panel of Senior Administrative Grade officers does not amount to waive/ relinquishment of the applicant s right for the constitution of the Arbitral Tribunal. The applicant, in my view, cannot be compelled to submit to the illegal demands of the respondents. The quantum of the claim referred to Arbitrators is not the criterion for appointment of Arbitrators. As already mentioned above, the administrative instructions of the Railway board cannot override the provisions of the act and the Railway Board has no power to compel the applicant to nominate an Officer from out of their agreed list of Officers. ( 8 ) IT is seen from the orders dated 31-7-1998 passed in Arbitration Application no. 27 of 1998 that the two Arbitrators sri K. V. B. Reddy and Sri N. S. N. Murthy shall continue to be the Arbitrators till the completion of the arbitral proceedings. ( 8 ) IT is seen from the orders dated 31-7-1998 passed in Arbitration Application no. 27 of 1998 that the two Arbitrators sri K. V. B. Reddy and Sri N. S. N. Murthy shall continue to be the Arbitrators till the completion of the arbitral proceedings. But, subsequent to the said orders sri N. S. N. Murty resigned from the Arbitral panel and, therefore, Sri K. V. B. Reddy shall continue to be the arbitrator along with another Arbitrator to be nominated by the general Manager, Railways and both of them shall nominate the umpire, who shall adjudicate the entire claim lodged by the applicant. Therefore, it follows that sri K. V. B. Reddy is very much a continuing arbitrator and that the only thing to be performed by the Railways is to appoint a substitute Arbitrator in the place of the resigned Arbitrator Sri N. S. N. Murthy. Sri K. V. B. Reddy, who has been appointed by the 1st opposite party as the applicant s nominee stands good. Further, I am of the opinion that the appointment of Arbitrators does not depend on the quantum of the applicant s claim. The contention of the respondents that Senior Administrative grade Officers of the Railways have to be appointed as Arbitrators is untenable and contrary to the agreements referred to above. In my considered opinion, in the presence of a willing nominated Arbitrator, appointment of a new Arbitrator is a nullity and the power to nominate is exhausted after the first exercise of appointing sri K. V. B. Reddy as the applicant s nominee. In my view, the respondents are only entitled to appoint a substitute Arbitrator as their nominee in the place of sri N. S. N. Murthy, who resigned and that they have no right to terminate the appointment of Sri K. V. B. Reddy as long as he is willing and any replacement of sri K. V. B. Reddy is a nullity. ( 9 ) IN Union of India v. S. F. Co-operative S. C. L. C. Co-operative Society, Vikarabad1, p. Venkatarama Reddi, J. / (as His Lordship then was) while considering an identical question held that on refusal by designated arbitrator (sic. authority) to appoint his nominee as Arbitrator, the Court gets jurisdiction to appomt Arbitrator. ( 10 ) IN Union of India v. Vengamamba Engineering Co. authority) to appoint his nominee as Arbitrator, the Court gets jurisdiction to appomt Arbitrator. ( 10 ) IN Union of India v. Vengamamba Engineering Co. , Juputi, Krishna District and division Bench of this Court held that if there is any delay or refusal in appointing an Arbitrator by the authority specified in the arbitration agreement, the Court can appoint an Arbitrator, that the jurisdiction to appoint an Arbitrator exclusively vests in the Court and that once the appointing authority abdicates his power, no further chance could be given to him. ( 11 ) IN Datar Switchgears Ltd. v. Tata Finance Ltd. while considering the scope and ambit of Section 11 (6) of the Act, the supreme Court has observed that if a party having responsibility of appointing arbitrator does not do so within 30 days of demand being made by the other party, the right to make the appointment is not automatically forfeited, that the appointment can still be made, but before the other party moves the Court under section 11 of the Act and that once the other party moves the Court, the right to make the appointment ceases to exist. ( 12 ) IN the instant case also, this Court gets jurisdiction to appoint an Arbitrator and the applicant is entitled to get the claim of Rs. 10,39,22,890/- + value of claims Nos. 1 to 5, 8 and 10 rejected by the opposite parties under the above said contracts respectively, arbitrated by the Arbitrator now appointed by this Court. Since out of two Arbitrators appointed by the respondents, one Arbitrator, namely, the nominee of the Railways, has resigned it is incumbent upon the Railways to appoint their nominee as the other Arbitrator in the place of Sri N. S. N. Murthy within 15 days from the date of request by the applicant by letter dated 9-12-1999 and as the respondents did not do so, the applicant is perfectly right in approaching this Court by way of the present application. It has to be borne in mind that the matter is pending in this Court for the last more than two years and, therefore, a direction should be issued to the Arbitrator to complete the arbitration proceedings within a reasonable period. ( 13 ) ACCORDINGLY, I hereby nominate Sri Justice Y. . It has to be borne in mind that the matter is pending in this Court for the last more than two years and, therefore, a direction should be issued to the Arbitrator to complete the arbitration proceedings within a reasonable period. ( 13 ) ACCORDINGLY, I hereby nominate Sri Justice Y. . Bhaskar Rao, Former Chief justice of Karnataka High Court and former judge of this Court as the sole Arbitrator to resolve the disputes between the parties. It is desired that the arbitration proceedings shall be completed as expeditiously as possible, preferably within a period of four (4) months from the date of receipt of the order. The respondent-authorities are directed to refer the entire claim as lodged by the applicant to the sole Arbitrator. The arbitrator is at liberty to fix his fee in consultation with both parities. ( 14 ) ACCORDINGLY the Arbitration Application is allowed. No costs.