Judgment :- These petitions are heard and disposed of together for the sake of convenience. 2. In CMP 99/2010 the facts are as follows: The petitioner, a partnership firm, had submitted a tender against an invitation by the South Western Railway, represented by the respondents, for the construction of a Broad Guage line between Kadur and Chikkamagalur, as on 09.03.2005. It was accepted and a formal agreement was executed by the Railway entrusting the work to the petitioner. There were certain General Conditions of Contract and Special conditions of contract, in standard form which are generally made applicable by the Railway to all such contracts. Clause 63 and Clause 64 of the General conditions of Contract contemplate resolution of disputes through arbitration. It is stated that the respondents, inter alia, raised disputes regarding completion of the work to the extent as claimed by the petitioner and denied payment – while holding out a threat of termination of contract. The petitioner apart from approaching a civil court under Section 9 of the Arbitration and Conciliation Act, 1996 (Hereinafter referred to as the ‘1996 Act’ for brevity) has approached this court under Section 11(6) of the Act seeking the appointment of an independent arbitrator, on the ground that the agreed procedure does not ensure the appointment of an impartial and unbiased arbitrator and further that the respondents having failed to appoint an arbitrator in terms of the agreed procedure even after 100 days of being called upon to do so, the respondents have forfeited their right. The respondents having facilitated the constitution of the Arbitral Tribunal, much after the present petition was filed, namely on 16.11.2010, where as the petition was filed on 12.7.2010, the petitioner has amended the petition with the leave of this court, to contend that the respondents having belatedly constituted the Tribunal have unfairly deleted certain claims of the petitioner on the footing that they are considered as “excepted matters” which are not capable of being referred to arbitration, in terms of the agreement. This contention of the respondents and the refusal to refer those claims is sought to be questioned in the amended petition. 3. In CMP 109/2010, the facts are as follows: The petitioner is a Government of India Enterprise, it is engaged in the business of works contracts. This contention of the respondents and the refusal to refer those claims is sought to be questioned in the amended petition. 3. In CMP 109/2010, the facts are as follows: The petitioner is a Government of India Enterprise, it is engaged in the business of works contracts. It had submitted its tender in respect of certain balance work of the proposed construction of a broad guage line between Kadur and Chikkamagalur under taken by the respondent railway. A similar contract was entered into as in the case of the above petition. The commencement of the work was inordinately delayed, not for causes within the control of the petitioner, as claimed. The respondents had however, held that the petitioner was to blame and impose risk and cost involved on the petitioner and terminated the contract. The petitioner promptly sought several claims, raised by it against the respondents on the ground of illegal termination of contract, be referred to arbitration in terms of the procedure under the contract. The respondents while referring the matter to an Arbitral Tribunal have treated one of the claims as an excepted matter not being capable of being referred to arbitration. This is sought to be questioned while also seeking the reference to be made to an independent arbitrator.4. In CMP 110/2010, the facts are as follows: The petitioner and the respondent Railway had entered into a contract, whereby the petitioner was to set up certain infra structural facilities for its Zonal Office at Hubli. He contract was subject to General and Special Conditions of Contract. According to the petitioner, the respondents failed to adhere to the terms of the contract and on the other hand sought to terminate the contract. The petitioner sought reference of the matter to arbitration. The matter having been referred to Arbitration and an award having been passed the same was however, set aside by a competent civil court. It transpires that even during the pendency of the arbitration proceedings the petitioner had raised certain additional claims and before the same could be referred to the tribunal, an award was passed. As the award was set aside, the petitioner had sought to file a consolidated claim, including the additional claims. Though the respondents had agreed to have the consolidated claims referred to arbitration, the respondents had resiled. As the award was set aside, the petitioner had sought to file a consolidated claim, including the additional claims. Though the respondents had agreed to have the consolidated claims referred to arbitration, the respondents had resiled. The petitioner is hence before this court seeking the appointment of an independent sole arbitrator and for reference of all claims to such arbitrator. 5. IN CMP 160/2010, the petitioner who was engaged by the Railway in respect of certain construction works, under similar contract conditions as in respect of the other petitioners had raised several claims against the Railways and had sought reference of the same to arbitration. The respondent Railway, though had appointed an arbitral tribunal have withheld several claims from the reference on the ground that the said claims are “excepted matters”. Hence the petition, seeking that the respondents be directed to refer all the claims to arbitration.6. The respondents vehemently resist the petitions and would submit that the petitions do not merit consideration on my single issue and that the law is completely loaded against the petitioners in this regard. 7. Heard the learned counsel for the petitioner and the learned Shri. N. Devadas, Senior Advocate, appearing for the counsel for the respondents and Shri Sanjay Gowda, also appearing for the respondents in CMP 99/2010. 8. Having regard to the facts and circumstances in the above petitions, the points that arise for consideration by this court are as follows: a) Whether in the face of an agreed procedure for the appointment of an arbitral tribunal, in the event of failure on the part of the respondents to appoint an arbitrator before the petitioner had approached this court under Section 11(6) of the Act, the respondent’s right to appoint an arbitrator stands forfeited? b) When an arbitrator has been duly appointed, before the filing of the petition, whether it is open to this court to issue directions as to the particulars of claims that should be considered by the arbitrator? Whether this court can supply the failure of the respondent to refer all claims raised by the petitioner, by directing the arbitrator to address the claims which have not been referred? c) Whether it would be open to this court to replace a named arbitrator, appointed before the filing of the petition, under an agreed procedure, with another at the instance of the petitioner and at discretion of this court? c) Whether it would be open to this court to replace a named arbitrator, appointed before the filing of the petition, under an agreed procedure, with another at the instance of the petitioner and at discretion of this court? In so far as the first point is concerned, the settled position is this, as explained by the apex court in Indian Oil Corporation V. Raja Transport (P) Limited (2009) 8 SCC 520 , thus: “41. In Ace Pipeline Contracts (P) Ltd., a two-Judge Bench of this court held that where the appointing authority does not appoint an arbitrator after receipt of request from the pother party, a direction can be issued under Section 11(6) to the authority concerned to appoint an arbitrator as far as possible as per the arbitration clause. It was held that normally the court should adhere, to the terms of the arbitration agreement except in exceptional cases for reasons to be recorded or where both the parties agree for a common name. 42. In Union of India V. Bharat Battery Mfg. Co. (P) Ltd., another two- Judge Bench of this court held that once the notice period provided for under the arbitration clause for appointment of an arbitrator elapses and the aggrieved party files an application under Section 11(6) of the Act, the right of the other party to appoint an arbitrator in terms of the arbitration agreement stands extinguished. 43. The divergent views expressed in Ace Pipeline and Bharat Battery were sought to be harmonized by a three-Judge Bench of this court in Northern Railway Admn. V. Patel Engg. Co. Ltd. After examining the scope of sub-sections (6) and (8) of Section 11, this court held. (Northern Railway Administration case, SCC pp245-56, paras 11-14).“11. The crucial expression in sub-section (6) is a ‘party may request the Chief Justice or any person or institution designated by him to take the necessary measure” (emphasis in original). This expression has to be read along with requirement in sub-section (8) that the Chief Justice or the person or an institution designated by him in appointing an arbitrator shall have ‘due regard’ to the two cumulative conditions relating to qualifications and other consideration as are likely to secure the appointment of an independent and impartial arbitration. 12. This expression has to be read along with requirement in sub-section (8) that the Chief Justice or the person or an institution designated by him in appointing an arbitrator shall have ‘due regard’ to the two cumulative conditions relating to qualifications and other consideration as are likely to secure the appointment of an independent and impartial arbitration. 12. A bare reading of the scheme of Section 11 shows that the emphasis is on the terms of the agreement being adhered to and/or given effect as closely as possible. In other words, the court may ask to do what has not been done. The court must first ensure that the remedies provided for are exhausted. It is true as contended by Mr. Desai, that it is not mandatory for the Chief Justice or any person or institution designated by him to appoint the named arbitrator or arbitrators. But at the same time, due regard has to be given to the qualifications required by the agreement and other considerations. 13. The expression ‘due regard’ means that proper attention to several circumstances have been focused. The expression ‘necessary’ as a general rule can be broadly stated to be those things which are reasonably required to be done or illegally ancillary to the accomplishment of the intended act. Necessary measures can be stated to be the reasonable steps required to be taken. 14. …..It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of sub-section (8) of section 11 have to be kept in view, considered and taken into account,.” 44. While considering the question whether the arbitral procedure prescribed in the agreement for reference to a named arbitrator, can be ignored, it is also necessary to keep in view clause (v) of sub-section (2) of Section 34 of the Act which provides that an arbitral award may be set-aside by the court if 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 any provision of Part I of the Act from which parties cannot derogate, or, failing such agreement, was not in accordance with the provisions of part 1 of the Act). The legislative intent is that the parties should abide by the terms of the arbitration agreement. 45. If the arbitration agreement provides for arbitration by a named arbitrator, the courts should normally give effect to the provisions of the arbitration agreement. But as clarified by Northern Railway Admn., where there is material to create a reasonable apprehension that the person mentioned in the arbitration agreement as the arbitrator is not likely to act independently or impartially, or if the named persons is not available, then the Chief Justice or his designate may, after recording reasons for not following the agreed procedure of referring the dispute to the named arbitrator, appoint an independent arbitrator in accordance with Section 11(8) of the Act. In other words, referring the disputes to the named arbitrator in accordance with Section 11(8) of the Act. In other words, referring the disputes to the named arbitrator shall be the rule. The Chief Justice or his designate will have to merely reiterate the arbitration agreement by referring the parties to the named arbitrator or named Arbitral Tribunal. Ignoring the named arbitrator/Arbitral Tribunal and nominating an independent arbitrator shall be the exception to the rule, to be restored for valid reasons.” Insofar as the second point for consideration is concerned, the same stands answered in National Insurance Co. (2009)1 SCC 267 thus: “22. Where the intervention of the court is sought for appointment of an Arbitral Tribunal under Section 11, the duty of the Chief Justice or his designate is defined in SBP & Co. This court identified and segregated the preliminary issues that may arise for consideration in an application under Section 11 of the Act into three categories, that is (i) issues which the Chief Justice or his designate is bund to decide; (ii) issues which he can also decide, that is, issue which he may choose to decide; and (iii) issues which should be left to the Arbitral Tribunal to decide. 22.1. The issues (first category) which the Chief Justice/his designate will have to decide are; (a) Whether the party making the application has approached the appropriate High Court. (b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement. 22.2. 22.1. The issues (first category) which the Chief Justice/his designate will have to decide are; (a) Whether the party making the application has approached the appropriate High Court. (b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement. 22.2. The issues (second category) which the Chief Justice/his designate may choose to decide (or leave them to the decision of the Arbitral Tribunal) are: 1. Whether claim is a dead (long – barred) claim or a live claim. 2. Whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection. 22.3. The issues (third category) which the Chief Justice/his designate should leave exclusively to the Arbitral Tribunal are: (i) Whether a claim made falls within the arbitration clause (as for example, a mater which is reserved fro final decision of a departmental authority and expected or excluded from arbitration). (ii) Merits or any claim involved in the arbitration.” One contention raised by the learned Counsel for the petitioners however, requires to be clarified. The respondents, as noticed above, have not chosen to refer certain claims raised by the petitioners to arbitration – on the footing that the same are “excepted matters”. It is hence the apprehension of the petitioners that they are fore-closed from raising a claim, as the Arbitral Tribunal is certain to reject the so-called “excepted matters” without addressing the correctness of the assertion that the claims, which are not referred, are indeed “excepted matters”. Though the respondents have taken the particular stand in this regard, the petitioners are not precluded from preferring their claims. Including the claims which are characterized as “excepted matters” by the respondents. It is for the Arbitral Tribunal to decide on the same, namely, whether such claims are indeed “excepted matters”. If the Tribunal summarily rejects the same – the petitioners are certainly provided a remedy under the Act. The Third point stands answered in Indian Oil Corporation vs. Raja Transport (P) Limited (2009)8 SCC 520 thus “33. Sub-section (2) of Section 11 provides that parties are free to agree upon a procedure for appointment of arbitrator(s)./ Sub-section (6) provides that where a party fails to act, as required under the procedure prescribed, the Chief Justice or his designate can take necessary measures. Sub-section (2) of Section 11 provides that parties are free to agree upon a procedure for appointment of arbitrator(s)./ Sub-section (6) provides that where a party fails to act, as required under the procedure prescribed, the Chief Justice or his designate can take necessary measures. Sub-section (8) gives the discretion to the Chief Justice/his designate to choose an arbitrator suited to meet the requirement of a particular case. The said power is in no way intended to nullify a specific term of arbitration agreement naming a particular person as arbitrator. The power under subsection (8) is intended to be used keeping in view of the terms of the arbitration agreement. 34. The fact that the named arbitrator is an employee of one of the parties is not ipso facto a ground to raise a presumption of bias or partiality or lack of independence on his part. There can however be a justifiable apprehension about the independence or impartiality of an employee arbitrator, if such person was the controlling and dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other Department) to the officer whose decision is the subject matter of the dispute. 35. Where however the named arbitrator though a senior officer of the Government/Statutory body/government company, had nothing to do with the execution of the subject contract, there can be no justification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer(s) (usually) Heads of Department or equivalent) of a Government/statutory corporation/public sector undertaking, not associated with the contract, are considered to be independent and impartial and are not barred from the functioning as arbitrators merely because their employer is a party to the Contract. 36. The position may be different where the person named as the arbitrator is an employee of a company or body or individual other than the State and its instrumentalities. For example, if the Director of a private company (which is a party to the arbitration agreement), is named as the arbitrator, there may be a valid and reasonable apprehension of bias in view of his position and interest, and he may be unsuitable to act as on arbitrator in an arbitration involving his company. For example, if the Director of a private company (which is a party to the arbitration agreement), is named as the arbitrator, there may be a valid and reasonable apprehension of bias in view of his position and interest, and he may be unsuitable to act as on arbitrator in an arbitration involving his company. If any circumstances exists to create a reasonable apprehension about the impartiality or independence of the agreed or named arbitrator, then the court has the discretion not to appoint such a person. 37. Subject to the said clarifications, we hold that a person being an employee of one of the parties (which is the State or its instrumentality) cannot per se be a bar to his acting as an arbitrator. Accordingly, the answer to the first question is that the learned Chief Justice was not justified in his assumption of bias. 38. Before parting from this issue, we may however refer to a ground reality. Contractors in their anxiety Contracts from Government/statutory bodies/public sector undertakings, agree to arbitration clauses providing for employee arbitrators. But when subsequently disputes arise, they baulk at the idea of arbitration by such employee arbitrators and tend to litigate to secure an “independent” arbitrator. The number of litigations seeking appointment of independent arbitrator bears testimony to this vexed problem. 39. It will be appropriate if Government/statutory authorities/public sector undertaking reconsider their policy providing for arbitration by employee arbitrators in deference to the specific provisions of the new Act reiterating the need for independence and impartiality in arbitrators. A general shift may in future be necessary for understanding the word “independent” as referring to someone not connected with either party. That may improve the credibility of arbitration as an alternative dispute resolution process. Be that as it may.” From a close examination of the circumstances in each case, it cannot be said that there arises any presumption of bias, partiality or lack of independence on the part of the named Tribunal. In the above view of the matter, there is no merit in any of these petitions and the same are hereby dismissed.