ORDER The applicant has invoked jurisdiction of this court under Section 11 of Arbitration and Conciliation Act, 1996 (in short “Act of 1996”). A prayer is made to appoint independent Arbitrator to adjudicate the dispute between the parties. Learned counsel submits that the non-applicant terminated dealership of the applicant vide their order dated 01.02.2011. It was based on illegal and faulty procedure for inspection and taking sample apart from procedure of search and seizure. The non-applicant even violated the procedure for sampling and testing of product. The applicant preferred an appeal against the order of termination of dealership. The said appeal was dismissed vide order dated 27.06.2011. Prior to dismissal of the appeal, the applicant filed an application under Section 9 of the Act of 1996 to seek direction not to disturb or interfere in the operation of sale of petroleum product. The said application was dismissed by the subordinate court vide its order dated 18.11.2010. The applicant thereupon preferred a misc. appeal before this court but it was dismissed with liberty to prefer an appeal against the order dated 01.02.2011 whereby dealership was terminated. It was in view of the fact that during pendency of the misc. appeal, order of termination of dealership was issued by the non-applicant. The applicant was left with no option but to prefer appeal before the Executive Director against the order of termination of dealership but that was also dismissed. The applicant thereupon preferred a writ petition bearing No.8718/2011 to challenge the order of termination and the appellate order. The court passed interim order directing the parties to maintain status quo in regard to retail outlet in question vide the order dated 11.07.2011. The applicant then preferred this application for appointment of Arbitrator. It is in view of failure of the non-applicant to appoint Arbitrator as per Clause 66 of the agreement despite a dispute, thus this court should appoint independent and impartial Arbitrator by taking into consideration Section 11(8) of the Act of 1996. It is in view of the fact that the Managing Director or the officer nominated by him as Arbitrator would be the sole Arbitrator in a matter where appeal preferred by the applicant was dismissed by the Executive Director. The Managing Director is higher officer in the hierarchy but would be persuaded by the order passed in appeal by the Executive Director. The Managing Director is higher officer in the hierarchy but would be persuaded by the order passed in appeal by the Executive Director. If Managing Director nominates an officer below the rank of Executive Director then the applicant cannot expect justice through arbitration. Section 11(8) of the Act of 1996 provides for appointment of independent and impartial Arbitrator. In the background aforesaid, the applicant preferred this application. It is moreso when non-applicant even failed to nominate Arbitrator as per Clause 66, thus having lost the opportunity, it has to be appointed now by the court. Learned counsel for applicant gave reference of judgment of Hon’ble Apex Court in the case of Bipromasz Bipron Trading SA vs. Bharat Electronics Ltd. (BEL), (2012) 6 SCC 384 . The judgments of various High Courts were also referred to show that if other party fails to appoint Arbitrator, the jurisdiction comes to the court. It is not necessary that a notice or request is to be given to the non-applicant for appointment of Arbitrator. A prayer is thus made to appoint independent Arbitrator to adjudicate the dispute between the parties. Learned counsel for non-applicant, on the other hand, raised preliminary objection regarding maintainability of the application. It is in view of the fact that no dispute was raised by the applicant so as to refer it to the Arbitrator under Clause 66 of the agreement. If applicant would have raised the dispute with the request to nominate Arbitrator as per Clause 66, the non-applicant could have acted upon it. In absence of dispute and request for appointment of Arbitrator, there was no occasion for the non-applicant to nominate Arbitrator, rather if it would have been appointed as per Clause 66 of the agreement, the applicant could have raised objection for appointment of Arbitrator without request and dispute. Clause 66 of the agreement has also been questioned by the applicant wherein Managing Director is a named Arbitrator. The objection against the clause cannot be raised on the application under Section 11 of the Act of 1996. The Managing Director is having higher position to the Executive Director thus it cannot be presumed that he would be persuaded by the order passed in appeal, hence, application preferred by the applicant deserves to be dismissed. Learned counsel made a reference of judgment of Hon’ble Apex Court in the case of Iron & Steel Co. The Managing Director is having higher position to the Executive Director thus it cannot be presumed that he would be persuaded by the order passed in appeal, hence, application preferred by the applicant deserves to be dismissed. Learned counsel made a reference of judgment of Hon’ble Apex Court in the case of Iron & Steel Co. Ltd. vs. Tiwari Road Lines, (2007) 5 SCC 703 . Therein, it was held that the legislative scheme of Section 11 is very clear. If the parties have agreed to a procedure for appointment of Arbitrator, then it has to be acted upon. The parties can approach the Chief Justice or his designate only if they have not agreed to a procedure for appointment of Arbitrator or failed to apply the procedure. To invoke jurisdiction under sub-section (6) of section 11 of the Act of 1996 also, the party cannot straightway move an application before this court without showing violation of the procedure. In the instant case, no request was ever made by the applicant to refer the dispute to the Arbitrator. In absence of it, there was no occasion for the non-applicant to appoint Arbitrator. A further reference of the judgment of Jharkhand High Court in the case of Doncon Trade Centre Patratu vs. Central Coalfield Ltd. & Others, 2005 (2) Arbitration Law Reports 616 has been given. Therein, in the similar facts, application under Section 11 of the Act of 1996 was dismissed. The application was moved before the High Court without a request or notice for appointment of Arbitrator after raising dispute. The reference of judgment of Delhi High Court in the case of Kailash Prajapati vs. Citicorp Finance (I) Ltd. 187 (2012) DLT 433 has been given. Therein also, without request or notice for appointment of Arbitrator, High Court was approached under Section 11 of the Act of 1996. The application aforesaid was dismissed by Delhi High Court. A prayer is accordingly made to dismiss the application moved by the applicant. I have considered rival submissions made by the parties and perused the record. Two issues have been raised by the applicant to press the application for appointment of Arbitrator. The application aforesaid was dismissed by Delhi High Court. A prayer is accordingly made to dismiss the application moved by the applicant. I have considered rival submissions made by the parties and perused the record. Two issues have been raised by the applicant to press the application for appointment of Arbitrator. It is in reference to Clause 66 of the agreement, which is reproduced hereunder for ready reference: “ANY DISPUTE OR DIFFERENCE OF ANY NATURE WHATSOEVER OR REGARDING ANY RIGHT, LIABILITY ACT, OMISSION OR ACCOUNT OF ANY OF THE PARTIES HERETO ARISING OUT OF OR IN RELATION TO THIS AGREEMENT SHALL BE REFERRED TO THE SOLE ARBITRATION OF THE MANAGING DIRECTOR OF THE CORPORATION OR OF SOME OFFICER OF THE CORPORATION WHO MAY BE NOMINATED BY THE MANAGING DIRECTOR, THE DEALER WILL NOT BE ENTITLED TO RAISE ANY OBJECTION TO ANY SUCH ARBITRATOR ON GROUND THAT THE ARBITRATOR IS AN OFFIFCER OF THE CORPORATION OR THAT HE HAS TO DEAL WITH THE MATTERS TO WHICH THE CONTRACT RELATES OR THAT IN THE COURSE OF HIS DUTIES AS AN OFFICER IF THE CORPORATION HE HAD EXPRESSED VIEWS ON ALL OR ANY OF THE MATTERS IN DISPUTE OR DIFFERENCE. IN THE EVENT OF THE ARBITRATOR TO WHOM THE MATTER IS ORIGINALLY REFERRED BEING TRANSFERRED OR VACATING HIS OFFICE OR BEING UNABLE TO ACT FOR ANY REASON THE MANAGING DIRECTOR AS AFORESAID AT THE TIME OF SUCH TRANSFER, VACATION OF OFFICE OR INABILITY TO ACT, SHALL DESIGNATE ANOTHER PERSON TO ACT AS ARBITRATOR IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT SUCH PERSON SHALL BE ENTITLED TO PROCEED WITH THE REFERENCE FROM THE POINT AT WHICH IT WAS LEFT BY HIS PREDECESSOR. IT IS ALSO A TERM OF THIS CONTRACT THAT NO PERSON OTHER THAN THE MANAGING DIRECTOR OR A PERSON NOMINATED BY SUCH MANAGING DIRECTOR THE CORPORATION AS AFORESAID SHALL ACT AS ARBITRATOR HEREUNDER. THE AWARD OF THE ARBITRATOR SO APPOINTED SHALL BE, CONSLUSIVE AND BINDING ON ALL PARTIES TO THE AGREEMENT, SUBJECT TO THE PROVISIONS OF THE ARBITRATION ACT, 1940 OR ANY STATUTORY MODIFICATION OF OR RE-ENACTMENT THEREOF AND THE RULES MADE THEREUNDER AND FOR THE TIME BEING IN FORCE SHALL APPLY TO THE ARBITRATION PROCEEDINGS UNDER THIS CLAUSE. THE AWARD OF THE ARBITRATOR SO APPOINTED SHALL BE, CONSLUSIVE AND BINDING ON ALL PARTIES TO THE AGREEMENT, SUBJECT TO THE PROVISIONS OF THE ARBITRATION ACT, 1940 OR ANY STATUTORY MODIFICATION OF OR RE-ENACTMENT THEREOF AND THE RULES MADE THEREUNDER AND FOR THE TIME BEING IN FORCE SHALL APPLY TO THE ARBITRATION PROCEEDINGS UNDER THIS CLAUSE. THE AWARD SHALL BE MADE IN WRITING WITHIN SIX MONTHS AFTER ENTERING UPON THE REFERENCE OR WITHIN SUCH EXTENDED TIME NOT EXCEEDING FURTHER FOUR MONTHS AS THE SOLE ARBITRATOR SHALL BY A WRITING UNDER HIS OWN HANDS APPOINT.” Perusal of clause referred above reveals that any dispute or difference of any nature whatsoever arising out of agreement, shall be referred to the Sole Arbitrator by the Managing Director or some officers nominated by him. It restricts right of dealer to raise any objection for appointment of such Arbitrator. The clause aforesaid is also questioned by the applicant but this court is presently exercising jurisdiction under Section 11 of the Act of 1996 and is not having jurisdiction to determine validity of the clause of agreement. Two issues have been raised before this court and are to be answered. The first issue is as to whether application under Section 11 of the Act of 1996 can be entertained even if a dispute has not been raised and no prayer was made for appointment of Arbitrator before filing the application under Section 11 of the Act of 1996. The second issue would be as to whether independent Arbitrator is to be appointed in view of the fact that appeal earlier preferred by the applicant against termination of dealership was decided by the Executive Director. To consider first issue, it would be necessary to refer Section 11 of the Act of 1996, which is quoted hereunder for ready reference: “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; (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 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 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 that procedure; (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; (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. (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) 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 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 1 as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or subsection (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 subsection shall alone be competent to decide on 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.” The provision aforesaid provides as to when the jurisdiction of Chief Justice or his designate can be invoked by a party. As per sub-section (2) of Section 11, parties are free to agree on the procedure for appointment of Arbitrator or Arbitrators subject to sub-section (6). As per sub-section (2) of Section 11, parties are free to agree on the procedure for appointment of Arbitrator or Arbitrators subject to sub-section (6). Sub-section (4) refers to appointment procedure given under sub-section (3), if party fails to appoint Arbitrator within 30 days from the receipt of request to do so or two appointed Arbitrators fail to agree for appointment of third Arbitrator, Chief Justice or his designate would make appointment of the Arbitrator. Sub-section (5) again refers to sub-section (2) and provides that in case of sole Arbitrator, a party fails to agree on the arbitration within 30 days from the date of receipt of request, the appointment of Arbitrator shall be made by the Chief Justice or his designate. Sub-section (6) however provides that if party fails to act as per the procedure or two appointed Arbitrators fail to reach to the agreement under that procedure or there is failure to perform the function as entrusted to the Arbitrator, the Chief Justice or his designate would appoint Arbitrator, unless agreement on the appointment procedure provides other means for securing appointment. Sub-section (8) refers that as and when Chief Justice or his designate makes appointment, it shall have due regards to the qualification apart from independence and impartiality of the Arbitrator. Learned counsel for applicant submitted that the case in hand falls under sub-section (6) of Section 11 as the non-applicant failed to appoint Arbitrator on a dispute between the parties. The perusal of the documents on record reveals that on the order of termination dated 01.02.2011, applicant preferred an appeal before the Executive Director and thereupon brief submissions were submitted followed by dismissal of appeal vide order dated 27.06.2011. There is nothing on record to show that a dispute was raised thereupon other than some litigation, thus dispute could not have been referred to the arbitration. The applicant never prayed or requested for appointment of Arbitrator as per Clause 66 or for independent Arbitrator by sending request to the non-applicant before maintaining this application under Section 11 of the Act of 1996. In my opinion and looking to the facts of this case, the application is not maintainable. An application under Section 11 is filed when one has failed to act as per procedure given under the agreement or in any other contingencies given under Section 11 of the Act of 1996. In my opinion and looking to the facts of this case, the application is not maintainable. An application under Section 11 is filed when one has failed to act as per procedure given under the agreement or in any other contingencies given under Section 11 of the Act of 1996. In the instant case, applicant did not raise dispute after decision of the appeal or request for appointment of Arbitrator. The appointment of Arbitrator could have been made on a dispute or difference, of any kind, arising out of agreement. The applicant was thus under an obligation to raise dispute after decision of the appeal and could have further prayed for referring it to the Arbitrator but it failed to do so. The provisions of Section 11 of the Act of 1996 are not attracted in this case. Paras 9 & 10 of the judgment of Jharkhand High Court in the case of Doncon Trade Centre Patratu vs. Central Coalfield Ltd. & Others (supra) would be relevant thus are quoted hereunder for ready reference: “(9) There is no averment in the instant request petition made by the petitioner that it ever requested or called upon the Chair-man-cum-Managing Director of the respondents to appoint an Arbitrator for the purpose of deciding the dispute raised by it. Not only that even before invoking the provisions of Section 11(6) of the said Act, the petitioner did not give notice of his purported intention to make request to the Chief Justice for appointment of Arbitrator. There is no pleading to that effect in the instant request petition filed under Section 11(6) of the Act.” “(10) The very purpose of enactment of Section 11 of the Act, is that if a party fails to appoint an Arbitrator after receipt of notice then the Chief Justice shall appoint Arbitrator. If, within the statutory period after receipt of notice, the opposite party does not appoint Arbitrator, then it will be well within the rights of the parties to give notice to move before the Court for appointment of an Arbitrator and the Court assumes jurisdiction to appoint another Arbitrator. In my considered opinion, therefore, before invoking the provisions of Section 11(6) of the Act, a party must give notice to the other party to the contract to make appointment in terms of the arbitration clause. In my considered opinion, therefore, before invoking the provisions of Section 11(6) of the Act, a party must give notice to the other party to the contract to make appointment in terms of the arbitration clause. It is only when the other party fails to appoint an arbitrator, a request can be made to the Chief Justice or any person designated by him to appoint an arbitrator in terms of Section 11(6) of the Act.” Para 6 of the judgment of Delhi High Court in the case of Kailash Prajapati vs. Citicorp Finance (I) Ltd. (supra) is also quoted hereunder for ready reference: “6. I have heard counsel or the petitioner and also perused the petition. In my view the petitioner has failed to satisfy the basic ingredients essential to the very maintainability of the present petition under Section 11(6) of Arbitration and Conciliation Act, 1996. The fact that the respondent had filed a petition under Section 9 of Arbitration and Conciliation Act, 1996, against the petitioner herein as also keeping in view that in a notice issued by respondent to the petitioner, the respondent had stated that in case the petitioner does not pay the amounts appropriate action would be initiated would not amount to issuance of notice for appointment of an Arbitrator in terms of Section 11(4) of Arbitration and Conciliation Act, 1996. Not only it is mandatory for the petitioner to issue a notice prior to the filing of the petitioner under Section 11(6) of Arbitration and Conciliation Act, the contents of the notice should be clear and unambiguous and further the petitioner must place on record reasonable proof of service [See 2005 Arb. LR 225 (Delhi) and 2005 (3) Arb. LR 39 (Delhi)].” In the case of Iron & Steel Co. Ltd. vs. Tiwari Road Lines (supra), issue was as to who can be appointed as Arbitrator. It is when one failed to follow the procedure agreed upon. If subsection (6)(a) of Section 11 of the Act of 1996 is perused minutely, it mandates that if a party fails to act under the procedure so agreed upon, the court can be requested for appointment of Arbitrator. The failure could have been, if the applicant would have raised a dispute finding dis-satisfaction on the order passed by the appellate authority or a request for appointment of Arbitrator in view of the dispute. The failure could have been, if the applicant would have raised a dispute finding dis-satisfaction on the order passed by the appellate authority or a request for appointment of Arbitrator in view of the dispute. Since both are missing herein, sub-section (6) of Section 11 is not attracted. In view of aforesaid, the first issue is decided against the applicant holding application to be not maintainable. The other issue is as to whether the Managing Director or the officer nominated by him, can be appointed as Arbitrator. The objection aforesaid has been raised in view of decision on appeal by the Executive Director. Learned counsel for applicant has referred judgment of Hon’ble Apex Court in the case of Bipromasz Bipron Trading SA vs. Bharat Electronics Ltd. (BEL) (supra). The judgment aforesaid gives complete answer to the issue. Therein, various judgments of Hon’ble Apex Court have been referred. This judgment is not burdened by quoting paras of that judgment because sub-section (8) comes in picture only when application under Section 11 is maintainable requiring Chief Justice or his designate to appoint Arbitrator and while doing so, to take into consideration sub-section (8) of Section 11 of the Act of 1996. When the application itself is not maintainable, as clarified above, the question of appointment of Arbitrator does not arise. In the case of Bipromasz Bipron Trading SA vs. Bharat Electronics Ltd. (BEL) (supra), it was held that there is no bar to appoint an officer of the company as Arbitrator, though exception may be there, but it cannot be as a rule. The case in hand is not of such a nature where presumption of bias can be drawn against the Managing Director or his nominee, if arbitrates the dispute. The issue of bias can be raised, if it is made out, after appointment of the Arbitrator. The applicant can also seek independence of Arbitrator under Section 12 of the Act even after its appointment. In view of discussion made above, application submitted by the applicant is dismissed. However, applicant would be free to raise a dispute with a request to the non-applicant to refer the case for arbitration. On nomination of Arbitrator, the applicant feels aggrieved, it would be at liberty to raise objection as per provisions of the Act of 1996. The dismissal of application would not come in their way for the aforesaid.