Judgment Jayant Patel, J.—The present petition has been preferred by the petitioner under sections 11(5) and (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) and the prayers are at Para 20, which for ready reference, can be reproduced as under: “(a) that this Hon’ble Court may be pleased to appoint Justice Mr. M.B. Shah (Retired) or any other retired High Court Judge, as the Sole Arbitrator to adjudicate all the disputes and differences between the Petitioner and Respondent hereto arising out of and in connection with the SHA; (b) that cost of the present Petition may be ordered to be paid by the Respondent to the Petitioner; and (c) that this Hon’ble Court may be pleased to pass such other orders and/or grant such other/further reliefs as this Hon’ble Court deems fit and proper in the facts and circumstances of the case.” 2. I have heard Mr. Kamal Trivedi, learned Senior Counsel appearing for Wadia Ghandy & Co. for the petitioner and Mr. Mihir Thakore for Singhi & Co. for the respondent. 3. The short facts are that the petitioner and the respondent together with the other Company entered into shareholders agreement on 09.07.2010, whereby various conditions were agreed to which we are not concerned in the present proceedings, but the relevant Clause under the head of Arbitration is at Para 36, which for ready reference can be reproduced as under: “36 Arbitration 36.1 In the event of any dispute arising among the Promoters hereto in connection with this Agreement, the Promoters hereby agree that: 36.1.1 The Promoters shall deliver a notice to commence consultation and negotiation to resolve the dispute. If the Promoters do not reach a solution within a period of 30 (thirty) days following the date of such notice of their consultations and negotiations, any Party that is involved in the dispute may treat the same as an arbitrable dispute by giving notice to the Company and the other Parties, in which case the dispute shall be submitted to a final and binding arbitration in accordance with the provisions contained hereinafter. 36.1.2 If the dispute subsists between any two or more of the Promoters hereto pursuant to Clause 36.1) above, the dispute shall be referred to a sole arbitrator appointed by the common consensus of the Promoters, failing which both of the Shareholders group shall have right to appoint one arbitrator each of their own choice. The two Arbitrators so appointed shall appoint an Umpire, whose decision shall be binding on both the Arbitrator and the Shareholders Group. The seat of arbitration shall be at Ahmedabad, India, and the arbitration shall be conducted in accordance with the Indian Arbitration and Conciliation Act, 1996. 36.2 All arbitration proceedings conducted pursuant to this Clause 36 shall be conducted in the English Language.” 4. As per the petitioner, there were consultations and negotiations for the alleged dispute between the petitioner and the respondent. However, such disputes were not resolved and therefore, they served the notice dated 09.05.2013 to the respondent calling upon the disputes to be referred to the sole arbitrator and suggested the name of Mr. Justice M.B. Shah (retired). In response thereto, the respondent addressed letter dated 17.05.2013 and contended inter alia that there is no arbitrable dispute and the notice to the Company is not sent and it was further stated that hence, the question of appointing sole arbitrator does not arise. It was also stated that without prejudice to the aspect that no question arises for appointment of sole arbitrator, the respondent is not agreeable for appointment of Mr. Justice M.B. Shah as sole arbitrator. The petitioner vide letter dated 25.05.2013, called upon the respondent in response to the communication dated 17.05.2013 for confirmation of the name of sole arbitrator and it was also communicated to them that respondent may suggest suitable alternative so that the arbitration proceeding can commence. The respondent in reply thereto, vide letter dated 31.03.2013, reiterated the stand that they are not agreeable to the appointment of Mr. Justice M.B. Shah as sole arbitrator or any other person as sole arbitrator. It was also stated that as per the respondent, there is no arbitrable dispute and hence, question of suggesting any name or suggesting suitable alternative does not arise. Consequently, as there was no appointment of arbitrator, the present proceeding before me as the delegate of the Hon’ble Chief Justice. 5. Mr. It was also stated that as per the respondent, there is no arbitrable dispute and hence, question of suggesting any name or suggesting suitable alternative does not arise. Consequently, as there was no appointment of arbitrator, the present proceeding before me as the delegate of the Hon’ble Chief Justice. 5. Mr. Thakore, learned Counsel appearing for the respondent raised the preliminary contention at the outset that the agreed procedure for appointment of arbitrator has not been resorted to apart from the contention of the respondent that there is no arbitrable dispute. The contention was two fold, one was that the agreement itself provided that upon failure for appointment of sole arbitrator by consensus amongst the parties, each one will appoint one arbitrator and the two arbitrators will appoint umpire. The second limb of the contention was that notice was not given to the company for raising the dispute and for appointment of the arbitrator which was also one of the agreed requirement to be followed. He therefore submitted that until the agreed procedure is followed, the jurisdiction of the Hon’ble Chief Justice or his delegate cannot be invoked under the Act for appointment of the arbitrator. 6. Whereas, Mr. Trivedi, learned Counsel appearing for the petitioner submitted that the contention can be said as a technical contention. It was submitted that when the power is invoked of the Hon’ble Chief Justice or his delegate under the Act, the matter can also be examined in light of substantial compliance. It was submitted that the dispute exists amongst the promoters, viz., the petitioner and the respondent and therefore, since as per the petitioner, sole arbitrator could be appointed, the name was suggested. But the respondent did not agree on the premise that no dispute at all existed and they further objected to the name on the ground that they are not agreeable for the name suggested of the sole arbitrator. It was submitted that the petitioner had also called upon the respondent to suggest any other suitable alternative and in response thereto, the respondent could have come up with the stand that one arbitrator may be appointed by the petitioner and one may be by the respondent. It was submitted that the petitioner had also called upon the respondent to suggest any other suitable alternative and in response thereto, the respondent could have come up with the stand that one arbitrator may be appointed by the petitioner and one may be by the respondent. But such a course was not taken by the respondent and on the contrary, the stand of the respondent as was earlier and as on today is that there is no arbitrable dispute and therefore, the question of appointment of arbitrator does not arise. It was submitted that if the Court considers the matter by applying the principles of substantial compliance, it cannot be said that the agreed procedure has not been followed. Further, in the submission of the learned counsel, requirement to serve notice to the Company could not be said as a mandatory requirement more particularly when the Company is under control of the two group of promoters who are having disputes. It was therefore submitted that the power may be exercised under the Act. The learned Counsel also submitted that as such, the petition is for seeking appointment of the sole arbitrator, but if this Court finds that two arbitrators are to be appointed, the petitioner may suggest one name and let the respondent suggest another name and the matter can be ended for reference to the arbitrator leaving the appointment of umpire to be made by those two arbitrators. Hence, it was submitted that there is no substance in the preliminary contention and the power may be exercised as prayed in the petition. 7. I find that the preliminary contention deserves consideration. Section 11 of the Act for ready reference can be reproduced as under: “11. Appointment of arbitrators.—(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. (2) Subject to Sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in Sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. (2) Subject to Sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in Sub-section (2), in an arbitration with three arbitrators, 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) 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) Failing any 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 on 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 or institution, designated by him. (6) Where, under an appointment procedure agreed upon by the parties— (a) a party fails to act as required under the 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 other 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) A decision on a matter entrusted by Sub-section (6) to the Chief Justice or the person or institution designated by him is final. (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. (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. (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 nay 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) of 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 Justices 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 the request. (12) (a) Where the 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 and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.” Section 11(2) of the Act expressly provides that subject to power under Sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. Further, as per Sub-section (5), there should be failure on the part of the parties to agree for appointment of arbitrator provided the agreed procedure has been followed. Sub-section (6) provides that the request may be made for appointment under other procedure for appointment is agreed upon. Further, as per Sub-section (5), there should be failure on the part of the parties to agree for appointment of arbitrator provided the agreed procedure has been followed. Sub-section (6) provides that the request may be made for appointment under other procedure for appointment is agreed upon. At this stage, the reference may be made to the decision of the Apex Court in the case of India Household and Healthcare Ltd. vs. L.G. Household and Healthcare Ltd. reported at (2007) 5 SCC 510 and more particularly the observations made at Para 24, the relevant of which reads as under: “An application for appointment of arbitrator, therefore, is not maintainable unless the procedure and mechanism agreed by and between the parties is complied with” 4. The reference can also be made to the another decision of the Apex Court in the case of Iron & Steel Co. Ltd. vs. Tiwari Road Lines reported at (2007) 5 SCC 703 , wherein, after considering the provisions of Section 11 of the Act, the Apex Court observed at Paras 7, 8, 9 and 10 as under: “7. Sub-section (2) of Section 11 of the Act provides that subject to Sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator. The opening part of Sub-sections (3) and (5) of Section 11 of the Act use the expression “failing any agreement referred to in Sub-section (2)”. Therefore, Sub-sections (3) and (5) will come into play only when there is no agreement between the parties as is referred to in Sub-section (2) of Section 11 of the Act, viz., that the parties have not agreed on a procedure for appointing the arbitrator or arbitrators. If the parties have agreed on a procedure for appointing arbitrator or arbitrators, Sub-sections (3) and (5) of Section 11 of the Act can have no application. Similarly, under Sub-section (6) of Section 11 request to the Chief Justice or to an institution designated by him to take the necessary measures, can be made if the conditions enumerated in Clause (a) or (b) or (c) of this Sub-section are satisfied. Similarly, under Sub-section (6) of Section 11 request to the Chief Justice or to an institution designated by him to take the necessary measures, can be made if the conditions enumerated in Clause (a) or (b) or (c) of this Sub-section are satisfied. Therefore, recourse to Sub-section (6) can be had only where the parties have agreed on a procedure for appointment of an arbitrator but (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. Therefore, a combined reading of the various Sub-sections of Section 11 of the Act would show that the request to the Chief Justice for appointment of an arbitrator can be made under Sub-sections (4) and (5) of Section 11 where parties have not agreed on a procedure for appointing the arbitrator as contemplated by Sub-section (2) of Section 11. A request to the Chief Justice for appointment of an arbitrator can also be made under Sub-section (6) where parties have agreed on a procedure for appointment of an arbitrator as contemplated in Sub-section (2) but certain consequential measures which are required to be taken as enumerated in Clause (a) or (b) or (c) of Sub-section (6) are not taken or performed. 8. In the present case the agreement executed between the parties contains an arbitration Clause and Clause 13.1 clearly provides that all disputes and differences whatsoever arising between the parties out of or relating to the construction, meaning and operation or effect of the contract or the breach thereof shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration and the award made in pursuance thereof shall be binding on the parties. This Clause is in accordance with Sub-section (2) of Section 11 of the Act. There being an agreed procedure for resolution of disputes by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration Sub-sections (3), (4) and (5) of Section 11 can have no application. The stage for invoking Sub-section (6) of Section 11 had also not arrived. There being an agreed procedure for resolution of disputes by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration Sub-sections (3), (4) and (5) of Section 11 can have no application. The stage for invoking Sub-section (6) of Section 11 had also not arrived. In these circumstances, the application moved by the respondent before the City Civil Court, Hyderabad, which was a designated authority in accordance with the scheme framed by the Chief Justice of the Andhra Pradesh High Court, was not maintainable at all and the City Civil Court had no jurisdiction or authority to appoint an arbitrator. Thus the order dated 31.03.2004 passed by the Chief Judge, City Civil Courts, Hyderabad, appointing a retired juridical officer as arbitrator is clearly without jurisdiction and has to be set aside. 9. The legislative scheme of Section 11 is very clear. If the parties have agreed on a procedure for appointing the arbitrator or arbitrators as contemplated by Sub-section (2) thereof, then the dispute between the parties has to be decided in accordance with the said procedure and recourse to the Chief Justice or his designate cannot be taken straightway. A party can approach the Chief Justice or his designate only if the parties have not agreed on a procedure for appointing the arbitrator as contemplated by Sub-section (2) of Section 11 of the Act or the various contingencies provided for in Sub-section (6) have arisen. Since the parties here had agreed on a procedure for appointing an arbitrator for settling the dispute by arbitration as contemplated by Sub-section (2) and there is no allegation that anyone of the contingencies enumerated in Clause (a) or (b) or (c) of Sub-section (6) had arisen, the application moved by the respondent herein to the City Civil Court, Hyderabad, was clearly not maintainable and the said court had no jurisdiction to entertain such an application and pass any order. The order dated 27.12.2004, therefore, is not sustainable. 10. In the matter of settlement of dispute by arbitration, the agreement executed by the parties has to be given great importance and an agreed procedure for appointing the arbitrators has been placed on high pedestal and has to be given preference to any other mode for securing appointment of an arbitrator. The order dated 27.12.2004, therefore, is not sustainable. 10. In the matter of settlement of dispute by arbitration, the agreement executed by the parties has to be given great importance and an agreed procedure for appointing the arbitrators has been placed on high pedestal and has to be given preference to any other mode for securing appointment of an arbitrator. It is for this reason that in Clause (a) of Sub-section (8) of Section 11 of the Act it is specifically provided that the Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties.” The aforesaid makes it clear that in the matter of settlement of dispute by arbitration, the agreement executed by the parties is to be given a great importance and agreed procedure for appointing arbitrator has been placed on high pedestal. 5. In light of the aforesaid, if the facts of the present case are examined, as reproduced earlier, Clause 36.1.1 expressly provides for giving notice to the company and other parties. When the dispute is amongst the promoters of company, the company is altogether a separate entity in contradistinction to the entity of the promoters and the language used is the other parties in the said clause. In any case, on account of the dispute amongst the promoters, there would be the effect upon the ultimate corpus of the company since the dispute is in any case relating to the operation of the company by the promoters or the role of the promoters for the company may be in capacity as shareholders or may be in managerial capacity. Therefore, it appears to me that the requirement to give notice to the company could not be termed as directory but can rather be said as mandatory, more particularly when the dispute is amongst the promoters of the Company wherein the role of the Company would be of importance and it would have the effect upon the corpus of the company. 6. As per Clause 36.1.2, reproduced earlier, it has been expressly provided that if the dispute subsists, the sole arbitrator may be appointed by the common consensus of the promoters. Had the Clause ended there, the matter would been different. 6. As per Clause 36.1.2, reproduced earlier, it has been expressly provided that if the dispute subsists, the sole arbitrator may be appointed by the common consensus of the promoters. Had the Clause ended there, the matter would been different. But the very Clause further provides that upon failure for appointment of sole arbitrator, both share holders groups shall have the right to appoint one arbitrator each of their choice and these arbitrators so appointed shall appoint the umpire. Therefore, when agreed procedure has been provided for the consequences to be followed in a matter where sole arbitrator by common consensus of the promoters has not been appointed, such in my view has got to be followed by parties seeking arbitration by invoking the power of the Chief Justice or his delegate under the Act. 7. As referred to hereinabove, for invoking of the jurisdiction, the requirement is to follow agreed procedure for appointment of the arbitrator by the parties. If the party invoking jurisdiction has followed the agreed procedure and inspite of the same, the appointment of arbitrator/s has not been made the jurisdiction may be invoked of the Hon’ble Chief Justice or his delegate, but not in a case where the agreed procedure has not been followed. In my view, the mandatory requirement of agreed procedure to be observed, touches to the jurisdiction of the Hon’ble Chief Justice under the Act, which cannot be substituted by substantial compliance as sought to be canvassed more particularly when the Chief Justice or his delegate is exercising the power specifically conferred by statute under the specific circumstances. It is not a matter where equitable jurisdiction is invoked, but is a matter where statutory jurisdiction is invoked. It is hardly required to be stated that the equity cannot march over the law when the power is expressly controlled by the statute or law. In my view, even if the equitable considerations are to weigh, such will be for supplementing the law and cannot be applied for nullifying or diluting the law more particularly on the point of initiation of the jurisdiction or for invoking of the jurisdiction under the Act. 8. In my view, even if the equitable considerations are to weigh, such will be for supplementing the law and cannot be applied for nullifying or diluting the law more particularly on the point of initiation of the jurisdiction or for invoking of the jurisdiction under the Act. 8. In view of the aforesaid, I find that since the mandatory requirement of giving notice to the company has not been followed by the petitioner and since the other agreed procedure for appointment of one arbitrator each has not been resorted to upon failure for appointment of sole arbitrator by common consensus, the preliminary contention raised by the respondent deserves to be accepted. 9. The attempt made by the learned Counsel for the respondent to contend that in the residuary prayer, this Court may pass appropriate order allowing both the parties to appoint one arbitrator each as per the agreed procedure, may be considered and accordingly, directions may be issued by this Court, in my view cannot be countenanced for the simple reason that no condition precedent for exercise of such power has been satisfied and in any case, entertaining of such request by modulating the relief would completely change the nature of the petition. Hence, such request cannot be accepted. 10. In view of the above, the petition is not entertained. Hence, dismissed. However, it is observed that any observation of this Court in the present judgment shall not operate as a bar to the petitioner to undertake a fresh agreed procedure for appointment of arbitrator/s as per the agreement. At that stage, rights and contentions of both the sides shall remain open. Considering the facts and circumstances, no order as to costs.