Judgment Prem Shanker Asopa, J.-Both the writ petitions are arising out of the same arbitral proceedings, although against the different orders, one is against the order dated 02.04.2005 passed by the Additional District Judge, Khetri whereby the application of the petitioner under Section 14 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) has been dismissed and another is against the order of rejection of the amendment application for adding the counter claim of 30 crores by the Arbitrator vide order dated 20.05.2005. Since, one of the common question involved in both the writ petitions is interference of this Court under Article 226 of the Constitution of India with regard to arbitral proceedings, therefore, I also think it proper to decide both the writ petitions together by a common order. 2. The facts of S.B. Civil Writ Petition No. 3068/2005 are that after the appointment of Shri A.P. Choudhary as Arbitrator by this Court, an application was moved under Section 14 of the Act of 1996 that the sole Arbitrator has failed and/or unable to function as Arbitrator within the meaning of the Act of 1996, therefore, the impugned order dated 02.04.2005 of the Additional District Judge, Khetri be quashed and set-aside and arbitration proceedings be declared de facto and de jure terminated. The grounds taken in the said application are that the petitioner-company through its Chairman and Managing Director, who is authorised, has appointed Shri T. Arvind, Senior Deputy General Manager (Admn.) HCL, KCC as Arbitrator but the High Court has cancelled the appointment of Shri T. Arvind being made during the proceeding under Section 11 of the Act of 1996 in the High Court and appointed Shri A.P. Choudhary, a retired Director of Indian Oil Corporation as Arbitrator, which is contrary to the five Judges Constitutional Bench of the Supreme Court in Konkan Railway Case. It was further stated that since the order of appointment of Arbitrator under Section 11 is administrative order and not a judicial order, therefore, the same can be assailed before the civil Court. 3. It was further stated that since the order of appointment of Arbitrator under Section 11 is administrative order and not a judicial order, therefore, the same can be assailed before the civil Court. 3. The other facts to substantiate the main argument that the Arbitrator has become de facto and de jure unable to perform his functions are that he has failed to perform his obligation to allow the parties to frame the rules under Section 19 of the Act of 1996, did not disclose the parties in writing to give rise a justifiable doubts as to his independence or impartiality and further refusal to move the Court to summon the witnesses for which applications have been moved and rejected by him. 4. The Respondent No. 1 filed reply to the said writ petition and submitted that Sections 5 and 11 of the Act of 1996 deal with the extent of judicial intervention and it has been provided that no judicial authority shall intervene on the matters of arbitration except where it is so provided under the Act of 1996. The aforesaid reply was filed on 14.09.2005 and subsequently on 210.2005, seven Judges Bench of the Supreme Court has overruled the Judgment of the five Judges Bench of the Supreme Court in Konkon Railway Corporation Ltd. and held that the power of the Chief Justice or his nominee for appointment of Arbitrator is a judicial power which will subject to an appeal under Section 136 of the Constitution of India and restrict judicial intervention under Articles 226 and 227 of the Constitution of India. 5. As regards the other facts which were submitted by the Counsel for the respondent that the order passed by the Arbitrator under Sections 13, 16 and 27 have been specifically made ground of challenge by filing the application under Section 14 of the Act. The remaining grounds can also be challenged by filing the application under Section 34 of the Act of 1996 after award but the same cannot be a ground for an application under Section 14 of the Act of 1996 for failure or impossibility to act which the petitioner has miserably failed to prove before the Additional District Judge, Khetri. 6. The remaining grounds can also be challenged by filing the application under Section 34 of the Act of 1996 after award but the same cannot be a ground for an application under Section 14 of the Act of 1996 for failure or impossibility to act which the petitioner has miserably failed to prove before the Additional District Judge, Khetri. 6. The facts of S.B. Civil Writ Petition No. 7794/2005 are that during the advance stage of arbitral proceedings, an application for amendment in the counter claim by adding additional claim of 30 crores was filed by the petitioner-company which was rejected by the Arbitrator on the ground of delay/barred by time. The case of the petitioner-company is that the Arbitrator has violated the basic principles of the amendment. 7. The Respondent No. 1 has filed reply and submitted that the petitioner is trying to upset the proceedings of the arbitration and as per Sections 5 and 11 of the Act of 1996, the Courts should be restrained from interfering with the arbitration proceedings except in the manner provided in the 1996 Act. 8. The submission of the Counsel for the petitioner in S.B. Civil Writ Petition No. 3068/2005 is that the trial Court has committed an error of law in not terminating the Mandate of an Arbitrator as the Arbitrator has become de facto or de jure unable to perform his functions. The petitioner has placed reliance on (1) Sikkim Subba Associates vs. State of Sikkim, 2001 (5) SCC 629 , (2) Harbanslal Sahnia & Anr. vs. Indian Oil Corpn. Ltd. & Ors., 2003 (2) SCC 107 , (3) Sanjana M. Wig (Ms) vs. Hindustan Petroleum Corpn. Ltd., 2005 (8) SCC 242 and (4) S.B.P. & Co. vs. M/s Patel Engineering Ltd. & Anr., (Supra). 9. The submission of the Counsel for the respondents is that Sections 5 and 11 of the Act of 1996 deal with the extent of judicial intervention and it has been provided that no judicial authority shall intervene on the matters of arbitration except where it is so provided under the Act of 1996. It was further submitted that the Arbitrator was appointed with the consent of both the parties and in case the petitioner has any objection, then he ought to have objected the same before the High Court. It was further submitted that the Arbitrator was appointed with the consent of both the parties and in case the petitioner has any objection, then he ought to have objected the same before the High Court. The further submission of the Counsel for the respondents is that the application under Section 14 of the Act of 1996 was not maintainable as all the grounds taken by the petitioner are relating to framing of the rules challenged to the procedure which are permissible to be objected after passing of the final Award in a proceeding under Section 34 of the Act of 1996. The Additional District Judge has considered all the aspects of the matter and passed the legal order. It was also submitted that the application hs been filed with the ulterior motive to obstruct the proceedings going on before the Arbitrator. The Counsel for the respondents has placed reliance on CDC Financial Services (Mauritius) Ltd. vs. BPL Communications Ltd. & Ors., 2005 (2) RAJ 43 (SC) and S.B.P. & Co. vs. M/s. Patel Engineering Ltd. & Anr. 2005 (8) SCC 618 . 10. The trial Court after going through the pleadings of the parties and Judgment s cited before it, gave a finding that the Arbitrator had not become incompetent either de jure or de facto and he is competent to discharge his duties. Further the consent has been given by both the parties. It was further held that the Judgment s cited by the Counsel for the respondent (applicant) before the trial Court are the Judgment s wherein the Court has interfered after passing of the Award and in the instant case proceedings are pending, therefore, least interference is to be made as per Section 5 of the Act of 1996 for minor lapses. The relevant paragraphs of the said Judgment s are reproduced hereunder for ready reference:- 11. The submission of the Counsel for the petitioner in S.B. Civil Writ Petition No. 7794/2005 is that the counter claim has been rejected contrary to the principles of amendment. Delay was also explained but the Arbitrator has not accepted the explanation. The relevant paragraphs of the said Judgment s are reproduced hereunder for ready reference:- 11. The submission of the Counsel for the petitioner in S.B. Civil Writ Petition No. 7794/2005 is that the counter claim has been rejected contrary to the principles of amendment. Delay was also explained but the Arbitrator has not accepted the explanation. On the issue of amendment, the Counsel for the petitioner has placed reliance on (1) Bakshish Singh vs. Prithi Pal Singh & Ors., 1995 Supp (3) SCC577, (2) Estralla Rubber vs. Dass Estate (P) Ltd., 2001 (8) SCC 97 , (3) Punjab National Bank vs. Indian Bank & Anr., 2003 (6) SCC 79 and (4) Pankaja & Anr. vs. Yellappa (dead) by Lrs. & Ors., 2004 (6) SCC 415 . 12. The Counsel for the respondents has submitted that the Arbitrator has considered the said counter claim and rightly held the same delayed and time barred by considering the fact that the statement of claim was filed on 210.2002, counter claim was filed on 06.06.2003 and the final argument was commenced on 18.02.2004. Since, thereafter various applications were made and if the respondent really intended to make amended claim, they should have made this claim at earlier stage i.e., much earlier than 13.05.2005, otherwise also, the contract was abandoned in January, 1998 and the limitation is three years, thus, the additional counter claim filed on 13.05.2005 is time barred. The relevant portion of the order dated 20.05.2005 of rejection of amendment application Annexure 4 of S.B. Civil Writ Petition No. 7794/2005 is reproduced hereunder for ready reference:-"The Section 23(3) of the Act is only relevant, The claimant had filed claim statement on 210.2002. The reply cum counter claim was filed on 06.06.2003. At one stage of proceeding, final argument was commenced on 18.02.2004. Since, thereafter various applications were made, and if the respondent really intended to make the amended claim, they should have made this claim at earlier stage i.e. much earlier than 13.05.2005. Decision of the Arbitrator Seeing all the facts and averments by both the parties, I have come to the conclusion that there has been inappropriate delay on the part of the respondent in making the present application for amendment of claims. I, therefore, reject respondents application. The respondent in their application have mentioned that the amended claim in not time barred. I, therefore, reject respondents application. The respondent in their application have mentioned that the amended claim in not time barred. But, the respondents evidence shows that the claimant abandoned the contract somewhere in January, 1998. The limitation after ceasing of the contract is 3 years. Thus, on respondents own contention, the claim as filed on 13.05.2005 is time barred." 13. I have gone through the record of both the writ petitions and further considered the rival submissions of the parties in both the cases. 14. Sections 5, 11, 13, 14, 16, 19(1), 23, 34 and 37 of the Act of 1996 are reproduced hereunder for ready reference:- "5. Extent of judicial intervention:- Notwithstanding anything contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this part. 11. Appointment of Arbitrators:- .(1) A person of any nationality may be an Arbitrator, unless otherwise agreed the parties. .(2) Subject to Sub-section (6) the parties are free to agree on a procedure for appointing the Arbitrator or Arbitrators. .(3) Failingany agreement referred to in Sub-section (2), in a arbitration with three Arbitrator, each party shall appoint one Arbitrator, and the two appointed Arbitrators shall appoint the third Arbitrator who shall act as the presiding Arbitrator. .(4) If the appointment procedure in Sub-section (3) applied and- .(a) a party fails to appoint an Arbitrator within thirty days from the receipt or a request to do so from the other party; or .(b) the two appointed Arbitrators fails to agree on the third Arbitrator within thirty days from the date of their appointment. the appointment shall be made, upon request to a party, by the Chief Justice or any person or institution designated by him. .(5) Failingany agreement referred to in Sub-section (2), in an arbitration with a sole Arbitrator, if the parties fail to agree on the Arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person on institution designated by him. .(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 excepted of them under the 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 of institution designated by him to take a necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. .(7) A decision on a matter entrusted by Sub-section (4) or Sub-section (5) or Sub-section (6) to the Chief Justice or the person or institution designated by him is final. .(8) TheChief 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. .(9) In the case of appointment of sole or third Arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an Arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. .(10) The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by Sub-section (4) or Sub-section (5) or Sub-section (6) to him. .(11) Where more than one request has been made under Sub-section (4) or Sub-section (5) or Sub-section (6) to the Chief Justice of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request. .(12) (a) Wherethe matters referred to in Sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to "Chief Justice" in those sub-sections shall be construed as a reference to the "Chief Justice of India". .(12) (a) Wherethe matters referred to in Sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to "Chief Justice" in those sub-sections shall be construed as a reference to the "Chief Justice of India". (b) Where the matters referred to in Sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to "Chief Justice" in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal civil Court referred to in Clause (e) of Sub-section (1) of Section 2 is situate where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court." 13. Challenge procedure:- .(1) Subject to Sub-section (4), the parties are free to agree on a procedure for challenging an Arbitrator. .(2) Failing any agreement referred to in Sub-section (1), a party who intends to challenge an Arbitrator shall, within fifteen days after becoming aware of the Constitution of the arbitral Tribunal or after becoming aware of any circumstances referred to in Sub-section (3) of Section 12, send a written statement of the reason for the challenge to the arbitral Tribunal. .(3) Unless the Arbitrator challenged under Sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral Tribunal shall decide on the challenge. .(4) If a challenge under any procedure agreed upon by the parties or under the procedure under Sub-section (2) is not successful, the arbitral Tribunal shall continue the arbitral proceedings and make an arbitral award. .(5) Wherean arbitral award is made under Sub-section (4), the party challenging the Arbitrator may make an application for setting aside such an Arbitral award in accordance with Section 34. .(6) Where an arbitral award is set aside on an application made under Sub-section (5), the Court may decide as to whether the Arbitrator who is challenged is entitled to any fees. 14. Failure or impossibility to act:- .(1) The mandate of an Arbitrator shall terminate if- .(a) hebecomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and .(b) he withdraws from his office or the parties agree to the termination of his mandate. 14. Failure or impossibility to act:- .(1) The mandate of an Arbitrator shall terminate if- .(a) hebecomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and .(b) he withdraws from his office or the parties agree to the termination of his mandate. .(2) If a controversy remains concerning any of the grounds referred to in Clause (a) of Sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate. .(3) If , under this section or Sub-section (3) of Section 13, an Arbitrator withdraws from his office or a party agrees to the termination of the mandate of an Arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or Sub-section (3) of Section 12. 16. Competence of arbitral Tribunal to rule on its jurisdiction:- .(1) The arbitral Tribunal may rule on its own jurisdiction, including ruling on any objections, with respect to the existence or validity of the arbitration agreement, and for that purpose- .(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the terms of the contract; and .(b) a decision by the arbitral Tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. .(2) A plea that the arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of , an Arbitrator. .(3) A plea that the arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. .(4) The arbitral Tribunal may, in either of the cases referred to in Sub-section (2) of Sub-section (#), admit a later plea if it considers the delay justified. .(5) The arbitral Tribunal shall decide on a plea referred to in Sub-section (2) of Sub-section (3) and, where the arbitral Tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make and arbitral award. .(5) The arbitral Tribunal shall decide on a plea referred to in Sub-section (2) of Sub-section (3) and, where the arbitral Tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make and arbitral award. .(6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with Section 34. 19. Determination of rules of procedure:- (1) The arbitral Tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. 23. Statements of claim and defence:- .(1) Within the period of time agreed upon by the parties or determined by the arbitral Tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect these particulars, unless the parties have otherwise agreed as to the required elements of those statements. .(2) The parties may submit with their statement all documents they consider to the relevant or may add a reference to the documents or other evidence they will submit. .(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral Tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it. “34. Application for setting aside arbitral award,- .(1) Recourseto a Court against an arbitral award may be made only by an application for setting aside such award in accordance with Sub-section (2) and Sub-section (3). “34. Application for setting aside arbitral award,- .(1) Recourseto a Court against an arbitral award may be made only by an application for setting aside such award in accordance with Sub-section (2) and Sub-section (3). .(2) An arbitral award may be set aside by the Court only if ,- .(a) the party making the application furnish proof that,- .(i) a party was under some incapacity, or .(ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, under the law for the time being in force; or .(iii) theparty making the application was not given proper notice of the appointment of an Arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or .(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or .(v) the composition of the arbitral Tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this part from which the parties cannot derogate, or failing such agreement, was not in accordance with this part; or .(b) the Court finds that- .(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or .(ii) the arbitral award is in conflict with the public policy of India. Explanation: Without prejudice to the generality of Sub-clause (ii) of Clause (b), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81. Explanation: Without prejudice to the generality of Sub-clause (ii) of Clause (b), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81. .(3) Anapplication for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral Tribunal:- .Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. .(4) On receipt of an application under Sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral Tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. 37. Appealable Orders:- .(1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely:- .(a) granting or refusing to grant any measure under Section 9; .(b) setting aside or refusing to set aside an arbitral award under Section 34, .(2) An appeal shall also lie to a Court from order of the arbitral Tribunal,- .(a) accepting the plea referred to in Sub-section (2) or Sub-section (3) or Section 16; or .(b) granting or refusing to grant an interim measure under Section 17. .(3) No second appeal shall lie from an order passed in appeal under this section, but noting in this section shall affect or take away any right to appeal to the Supreme Court." 15. .(3) No second appeal shall lie from an order passed in appeal under this section, but noting in this section shall affect or take away any right to appeal to the Supreme Court." 15. First of all, I would like to deal with the question involved in both the writ petitions as to what extent the interference is to be made by the High Court under Article 226 of the Constitution of India with regard to arbitral proceedings. 16. The submission of the Counsel for the petitioner is that he has no remedy against the impugned orders under Section 37 of the Act of 1996, therefore, he has left with no other alternative except to approach before this Court under Article 226 of the Constitution of India. In support of the aforesaid preposition, the Counsel for the petitioner has submitted that the seven Judges Bench of the Supreme Court has not given any Judgment on the issue of rejection of application under Section 14 of the Act of 1996 and the refusal to amend the claim by an Arbitrator and/or refusal by the Arbitrator to permit the petitioner to summon the witnesses with the assistance of the Court as provided in Section 27 of the Act of 1996. 17. In Sikkim Subba Associates vs. State of Sikkim, (Supra), the issue was arising out of the application to set aside the award under the Arbitration Act, 1940 whereas in the instant case, arbitral proceedings are pending. 18. In Harbanslal Sahnia & Anr. vs. Indian Oil Corpn. Ltd. & Ors. (Supra), the issue was availability of alternative remedy of arbitration proceedings and in Sanjana M. Wig. (Ms.) vs. Hindustan Petroleum Corpn. Ltd. (Supra), the issue was of alternative remedy but not the interpretation of Arbitration Act, therefore, to interpret the provisions of Arbitration Act, 1996, the same are of no help. However, in the Judgment of S.B.P. & Co. vs. M/s Patel Engineering Ltd. & Anr. (Supra), the seven Judges Constitutional Bench of the Supreme Court covered the present controversy, which has been referred by both the parties. 19. Per contra, the Counsel for the Respondent No. 1 has relied on Sections 5 and 11 of the Act of 1996 and the Judgment in CDC Financial Services (Mauritius) Ltd. vs. BPL Communications Ltd. & Ors. (Supra), the seven Judges Constitutional Bench of the Supreme Court covered the present controversy, which has been referred by both the parties. 19. Per contra, the Counsel for the Respondent No. 1 has relied on Sections 5 and 11 of the Act of 1996 and the Judgment in CDC Financial Services (Mauritius) Ltd. vs. BPL Communications Ltd. & Ors. (Supra), wherein the Supreme Court has set-aside the impugned order passed by the High Court under Article 226 of the Constitution of India considering the scope of Sections 5 and 11 of the Act of 1996 according to which the Courts are restrained from interfering with the arbitration except in the manner provided in the 1996 Act. Although the said scope of Sections 5 and 11 of the Act of 1996 has been conceded by the Counsel for the Respondent No. 1 in special leave but the same was accepted by the Supreme Court. Paras No. 14 and 15 of the aforesaid Judgment are as follows:- "14. Whatever may be the merits of the writ application, we are of the view and it has been fairly conceded by the learned Senior Counsel appearing on behalf of Respondent 1 that the High Court should have had regard to Section 5 of the 1996 Act before granting the reliefs it did. Under Section 5 of the 1996 Act, Courts are restrained from interfering with arbitration exc