ORDER Petition under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, 'the Act'), praying for relief by one of the parties impleading the other party to this petition, both of whom had received a notice dated 27-6-2005 (copy at Annexure-H) from the two agreed Arbitrators to resolve the disputes between them calling upon them to appear on a given date i.e., 23-7-2005 for the purpose of appointing a third Arbitrator. Annexure-H produced along with the petition reads thus: M.A. Shama Iyengar, No. 177, 3rd Cross, Judges Colony, Basaveswaranagar, Bangalore-560 079 Justice S. Venkataraman (Retd.), No. 161, 3rd 'F' Cross, 2nd Block, III Stage, Judges Colony, Basaveswaranagar, Bangalore-560 079 Ph. 23225581/23221529 Date: 27-6-2005 Whereas, the respondent by letter dated 16-5-2005 appointed Sri M.S. Shama Iyengar as their Arbitrator to continue the arbitration proceedings initiated by the claimant consequent to withdrawal of Mr. Justice N.D. Venkatesh (Retd.) from the office of Arbitrator. Whereas, Sri M.A. Shama Iyengar not having received any communication from the claimant appointing their Arbitrator till 20-6-2005, assumed office as sole Arbitrator and issued notices to both parties to appear before him on 23-7-2005 for continuing the proceedings. Whereas, Sri M.A. Shama Iyengar received on 21-6-2005, the letter dated 18-6-2005 of the respondent appointing Mr. Justice S. Venkataraman (Retd.) as their Arbitrator. Both the Arbitrators have agreed to have a preliminary meeting on 23-7-2005 to hear both parties and then to appoint a third Arbitrator. Both parties/Advocates are required to appear on the above date and time at No. 161, 3rd Cross, 2nd Block, III Stage, Judges Colony, Basaveswaranagar, Bangalore-560 079 (ph. 23225581) Sd/- Sri M.A. Shama Iyengar, Arbitrator Sd/- (S. Venkataraman) Arbitrator Copy to: 1. Canara Rank, Leasing Division, Chennai 2. M/s. Klen and Marshalls, respondent 2. Both parties/Advocates are required to appear on the above date and time at No. 161, 3rd Cross, 2nd Block, III Stage, Judges Colony, Basaveswaranagar, Bangalore-560 079 (ph. 23225581) Sd/- Sri M.A. Shama Iyengar, Arbitrator Sd/- (S. Venkataraman) Arbitrator Copy to: 1. Canara Rank, Leasing Division, Chennai 2. M/s. Klen and Marshalls, respondent 2. Parties not having appeared but on the other hand the respondent-Company having raised a preliminary objection in terms of the letter dated 27-6-2005 (copy at Annexure-J) objected to the very appointment or nomination of the Arbitrator nominated by the petitioner, on the premise that their nominee could have acted as the sole Arbitrator and that having been agreed to between the parties, there is no occasion for the petitioner to seek for another Arbitrator and subsequently the petitioner having joined issue on the factual aspects of the contents of respondents letter dated 27-6-2005 in terms of the reply dated 7-7-2005 (copy at Annexure-K) and ultimately having resulted in withdrawal of one of the Arbitrators from the arbitration proceedings in terms of his letter dated 30-9-2005 (copy at Annexure-X) addressed to the petitioner, which reads as under: Justice S. Venkataraman (Retd.), No. 161, 3rd Stage, 2nd Block, West of Chord Road, Basaveswaranagar, Bangalore-560 079 Ph. 3225581, 3221529 To: The Canara Bank, Leasing Division, Project Finance Department, Corporate Credit Wing, Head Office, No. 112, J.C. Road, Bangalore-560 002 Please take notice that the undersigned who has been appointed by the Canara Bank, Leasing Division as their Arbitrator in their letter dated 18-6-2005 to continue the arbitration proceedings between them and M/s. Klen and Marshalls Manufacturers and Exporters hereby withdraws from the office of the Arbitrator with immediate effect. Sd/- (Justice S. Venkataraman) and the net result of these developments being that the agreed procedure between two Arbitrators to appoint a third Arbitrator having failed, the petitioner has approached this Court praying for taking 'necessary measures' in the facts and circumstances, including for the following relief: (a) order removal of the 2nd respondent as Arbitrator in this case and quash all the proceedings conducted by him from the date of his appointment by the 1st respondent till 8-10-2005 as illegal and not binding on the petitioner; (b) to appoint a new Arbitrator to conduct the arbitration work from the day Hon'ble Justice N.D. Venkatesh (Retd.) had his last sitting on 14-5-2005. 3. 3. Notice having been issued, the respondent-Company entered appearance through its Counsel Sri M.R.C. Ravi and filed objections, raising a preliminary objection as to the maintainability of the very petition. It is the case of the respondent-company that the petitioner should have taken recourse to the provisions of Sections 12, 14 and 15 of the Act. 4. I have considered the preliminary objection and heard Sri Urval N. Ramanand, learned Counsel for the petitioner and Sri M.R.C. Ravi, learned Counsel for the respondent-Company on this aspect. 5. Irrespective of the stands taken by the parties and the letters by the Arbitrators, submission of the Counsel with regard to the aspect as to whether a second Arbitrator in the first instance could have been co-opted contrary to the very agreement which enabled the petitioner to appoint a sole Arbitrator at its sole discretion, in view of clause (12) of the agreement, and irrespective of the stand on the part of the respondent-Company that the petitioner itself having agreed to continue Sri M.A. Shama Iyengar as Arbitrator, and thereafter the petitioner having no right or option to nominate or co-opt a second Arbitrator on the withdrawal of the Arbitrator who was their nominee (Justice N.D. Venkatesh) and appointing Justice S. Venkataraman as second or successor Arbitrator was not in order etc. I find it is not necessary for this Court to examine such contentions, is neither the scope of the petition nor is it open to the parties to contend so particularly in the light of the joint notice issued by the two Arbitrators which recites that they are the nominees of the parties and have agreed to issue notice for the purpose mentioned therein; such notice jointly issued by the Arbitrators binds the parties and it is not open for the parties to contend to the contrary at this stage before this Court in this petition. 6. If such is the premise on which this petition is to be examined, it is obvious that the agreed procedure between the two Arbitrators to appoint a third Arbitrator has failed so far, for whatever reasons, whether due to the withdrawal of the co-Arbitrator or due to the parties not having participated before the Arbitrators on the notified date or even by non-appointment of yet another successor Arbitrator by the petitioner in place of Justice S. Venkataraman, who has also withdrawn. 7. 7. Though Sri M.RC. Ravi, learned Counsel for the respondent submits that the petitioner could have availed of the relief in terms of Sections 12, 14 and 15 of the Act, and whether it was possible or not, it is not necessary to go into this hypothetical position, as the petitioner has come before this Court for necessary measure under Section 11(6) of the Act and as I find the situation is one which justifies this Court to act in exercise of Section 11(6) of the Act, no need to examine the other possibilities which the petitioner could have taken recourse to or not. 8. What this Court is concerned, is to examine and pass orders on the course of action permitted in law and if the Court is conferred with jurisdiction for such purpose. I find the situation is one right for this Court passing orders for taking 'necessary measure' in the absence of any impediment or other means provided under the agreement or as agreed between the parties on the failure of the appointed procedure. Neither Counsel is in a position to point out any such other means which could avoid or relieve the Court from taking 'necessary measures' in terms of Section 11(6) of the Act, which reads as under: "11. Appointment of Arbitrators.-x x x x x x x x x (6) Whereunder 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". 9. Submission of Sri Ramanand, learned Counsel for the petitioner is that it is a case where action is warranted due to the Arbitrators to reach an agreement in terms of clause (b) of sub-section (6) of Section 11 of the Act. I find the submission is correct and merits acceptance. 10. 9. Submission of Sri Ramanand, learned Counsel for the petitioner is that it is a case where action is warranted due to the Arbitrators to reach an agreement in terms of clause (b) of sub-section (6) of Section 11 of the Act. I find the submission is correct and merits acceptance. 10. However, before passing orders on the measures necessary to be taken in this situation, particularly as it is found that the forum of arbitration proceedings having failed to yield result to the parties, as Arbitrator after Arbitrator is withdrawing, parties not expressing confidence in the available Arbitrator and the arbitration mechanism not having rescued the situation for the parties, this Court has to consider as to whether relegating the parties to arbitration proceedings yet again is worthwhile at all. 11. However, before passing such orders, learned Counsel for the parties to look up the law and to apprise this Court of the scope of the expression 'necessary measure' occurring in Section 11(6) of the Act, as to whether such 'necessary measure' can include relegating the parties to a forum not necessarily one contemplated under the Act but an other forum which is available otherwise also to the parties. 12. For such purpose, further hearing is adjourned by two weeks.