ORDER The applicant, a company incorporated, has preferred this application for appointment of an arbitrator to resolve the disputes between it and the respondent Nos. 1 and 2 (hereinafter referred to as the purchasers) arising under the deed of conveyance dated 12.9.2005. The deed aforesaid provides a dispute resolution mechanism under its clause 17, that reads as under:- “17. Any disputes or differences of and/or in connection herewith will be resolved by mutual discussion failing which by a Sole Arbitrator (wither mutually agreed or not) who shall have summary powers and pass -decision/s without assigning reasons and whose such decision/s shall be final and binding upon the parties. Such arbitration, subject as above, be in accordance with the Arbitration & Conciliation Act, 1996 or any other modification thereof for the time being in force. Arbitration proceedings shall be held in Jodhpur and the High Court of Jodhpur shall have jurisdiction.” 2. The purchasers by a notice dated 11.12.2013 called upon the applicant to arrange a meeting to resolve certain issues by mutual discussions. The applicant through its counsel conveyed to the purchasers to fix suitable time for discussions to sort out the issues in dispute. A meeting of the purchasers with representative of the applicant held on 15.12.2013, but that did not yield any result as desired by the purchasers. 3. In this factual background, the purchasers by a notice dated 2.1.2014 invoked arbitration proceedings by appointing a retired Judge of Rajasthan High Court as sole arbitrator. The arbitrator so appointed, called upon the applicant, purchasers and Marudhar Hotels Private Limited (referred as vendor in the deed dated 12.9.2005) vide an Email notice dated 7.1.2014 to submit statement of claim/ statement of defence/ statement of version to him through Email at his Email Id. The parties were also called upon to show cause as to why or why not any appropriate -interim measure be/not taken with reference to para 17 of the notice dated 2.1.2014. Para 17 of the notice aforesaid reads as under:- “17. Since Arbitration proceedings are invoked through this notice, it is required on the part of Developer and its Associates to maintain status quo regarding the development and occupancy position of the upcoming apartments and to restrain from creating any further third party rights in Phase II and III of development till pendency of Arbitration proceedings.” 4. Since Arbitration proceedings are invoked through this notice, it is required on the part of Developer and its Associates to maintain status quo regarding the development and occupancy position of the upcoming apartments and to restrain from creating any further third party rights in Phase II and III of development till pendency of Arbitration proceedings.” 4. Pertinent to mention that Marudhar Hotels Private Limited being called upon first time under the notices dated 2.1.2014 served by the purchasers and dated 7.1.2014 issued by the arbitrator objected the arbitral proceedings under a communication dated 7.1.2014 in following terms:- “The Appointment of Arbitrator under Clause 17 can only be done, if any dispute or difference is not resolved by mutual discussion. You have never approached to us stating your dispute or difference with the Developer, for mutual discussion. And therefore the appointment of sole arbitrator at your end is premature.” 5. The Marudhar Hotels Private Limited also stated that appointment of arbitrator unilaterally was not acceptable being illegal. 6. The applicant also while responding the Email notice dated 7.1.2014, objected authority of the arbitrator appointed unilaterally by the purchasers. The applicant communicated to the arbitrator that, No agreed procedure for appointment of the Arbitrator has been provided in above Clause No.17, as per section 11 (2) of the Act and as such, in the present matter where a false dispute has been raised by Mr. Raj Kumar Kothari and Mrs. Asha Kothari, the provisions of section 11(5) of the Act will apply and as such, Mr. Raj Kumar Kothari and Mrs. Asha Kothari have no authority whatsoever to appoint you as an Arbitrator and that too unilaterally. It is submitted that since Mr. Raj Kumar Kothari and Mrs. Asha Kothari have no authority to appoint you as an Arbitrator you have no authority to issue the notice and act as an Arbitrator. 7. Raj Kumar Kothari and Mrs. Asha Kothari have no authority whatsoever to appoint you as an Arbitrator and that too unilaterally. It is submitted that since Mr. Raj Kumar Kothari and Mrs. Asha Kothari have no authority to appoint you as an Arbitrator you have no authority to issue the notice and act as an Arbitrator. 7. In spite of the objections raised by the applicant and the Marudhar Hotels Private Limited, the arbitrator appointed by the purchasers chose to proceed with the arbitral proceedings and conveyed the parties through Email notice dated 13.1.2014 as under:- “Having gone through the notice under section 11 of the Arbitration and Conciliation Act, 1996, dated 2.1.2014, your (addressees 1 and 2) reply thereto being dated 6.1.2014, my notice dated 7.1.2014, your (addressee No. 1) reply thereto, being dated 10.1.2014, the reminder dated 12.1.2014, and the reply to you (addressee No. 3) dated 13.1.2014, and the various relevant provisions of the Arbitration and Conciliation Act, 1996, I do not find any sufficient or substantive legal basis to recall the notice dated 7.1.2014, or the consent dated 31.12.2013. Now in view of notice under section 11 of the Arbitration and Conciliation Act, 1996, dated 2.1.2014, reply given by Shri Om Mehta Advocate dated 6.1.2014, reply by you, the addressee Nos. 1 and 2, and in view of the request made in para 17 of the notice under section 11 of the Arbitration and Conciliation Act, 1996, dated 2.1.2014, the sitting of the Arbitration is hereby fixed on 27.01.2014 at 11.00 a.m. at Jodhpur at my Residence. You all are hereby directed and called upon to appear on the above date, time and place, and make necessary submissions in accordance with law, which shall be heard and decided in accordance with law, after hearing such of you who choose to appear, and the consequent results will follow.” 8. The applicant after receiving the notice dated 13.1.2014 reiterated its non-acceptance of the arbitrator appointed unilaterally and made request to the purchasers to consider certain other persons for appointment as sole arbitrator. The applicant after receiving the notice dated 13.1.2014 reiterated its non-acceptance of the arbitrator appointed unilaterally and made request to the purchasers to consider certain other persons for appointment as sole arbitrator. The stand of the applicant as mentioned in the communication dated 16.1.2014 reads as under:- “We referred the matter with all correspondence and papers to our Solicitors at Mumbai for advice on the correct legal position as we do not wish to have any controversy or misgivings considering your unfortunate one sided approach to have an Arbitrator of your sole choice appointed, contrary to law and contrary to the arbitration agreement contained in Clause 17 of the Deed of Conveyance dated 12th September, 2005 (hereinafter referred to as the “arbitration agreement”.” “Based on the written opinion of our Solicitors, and as previously asserted by our Advocate, Mr. Mehta, we state that the purported appointment by you of Mr. Justice N.P. Gupta (Retd.) as Sole Arbitrator is completely illegal, void ab initio and non est. The reasons for us asserting this are apparent from the written opinion, which we have enclosed for your perusal. We will therefore not be participating in any purported arbitration proceedings before Mr. Justice N.P. Gupta (Retd.). If you should choose to proceed in our absence, we put you to notice that any steps that you may take would be equally illegal, void, non est and of no legal effect. However, considering that you have raised certain disputes in your letter dated 2nd January, 2014, (the correctness of which are categorically denied), we would be agreeable in having a quick resolution of the disputes and differences raised by you by the appointment of a Sole Arbitrator mutually acceptable to both of us. This would be in consonance with the terms of the arbitration agreement. In this regard, we request you to please consider the names of either Mr. Justice B.N. Shrikrishna (Retd. Judge of the Supreme Court of India) or Mrs. Justice Sujata Manohar (Retd. Judge of the Supreme Court of India). Both of these retired Judges are eminent jurists and enjoy an impeccable record and reputation. We hope that you will concur/consent to either of these names.” 9. On being getting no response to the communication aforesaid, this application is submitted. 10. Justice Sujata Manohar (Retd. Judge of the Supreme Court of India). Both of these retired Judges are eminent jurists and enjoy an impeccable record and reputation. We hope that you will concur/consent to either of these names.” 9. On being getting no response to the communication aforesaid, this application is submitted. 10. It is urged on behalf of the applicant that Clause 17 of the deed of conveyance provides a mechanism for resolving disputes through arbitral proceedings, but it nowhere prescribes procedure for appointment of arbitrator unilaterally, as such the appointment of sole arbitrator by the purchasers is absolutely non-consequential. It is asserted that in view of the dispute existing between the parties an arbitrator is required to be appointed by this Court as per sub-sections (5) and (6) of Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act of 1996”). 11. While opposing the application, Shri Dinesh Mehta, counsel for the purchasers, submit that the arbitrator has already been appointed as per Clause 17 of the deed of conveyance dated 12.9.2005 and the arbitral proceedings have already been commenced, thus, this application is not at all maintainable. According to Mr. Mehta, if the applicant is having any grievance with regard to sole arbitrator, then the same is required to be agitated before the arbitrator himself as per Sections 12 and 16 of the Act of 1996 and not by this application under Section 11 of the aforesaid Act. 12. On behalf of the Marudhar Hotels Private Limited, it is submitted that as a matter of fact the purchasers are having no grievance with vendor, thus, no liability should be fixed upon it in relation to the arbitral proceedings. 13. Heard counsel for the parties. 14. The objection of learned counsel for the purchasers is that an arbitrator has already been appointed as per Clause 17 of the conveyance deed, thus, this application is not at all maintainable. The applicant, if is having any grievance even about the arbitrator, then the same should be agitated before the arbitrator himself as per provisions of Sections 12 and 16 of the Act of 1996. The applicant, if is having any grievance even about the arbitrator, then the same should be agitated before the arbitrator himself as per provisions of Sections 12 and 16 of the Act of 1996. According to the purchasers, Clause 17 of the conveyance deed empowers any of the parties to appoint a sole arbitrator in the event of failure to arrive at mutual resolution of the dispute or differences and in the instant matter the parties failed to resolve their disputes, thus, a retired Judge of the Rajasthan High Court has been appointed as arbitrator by the purchasers and after his appointment as arbitrator there is no question for getting other arbitrator appointed. 15. I have examined facts of the case and also scope of Clause 17 of the conveyance deed by keeping in mind provisions of the Act of 1996. 16. As per Section 11 of the Act of 1996, the parties of an agreement are free to agree on a procedure for appointing the arbitrator or arbitrators. On failing to arrive at any agreement for appointment of sole arbitrator within a period of 30 days from receipt of a request by one party from the other party, the appointment of arbitrator is required to be made by the Chief Justice or any person or institution designated by him. 17. In the case in hand, the purchasers appointed arbitrator at their own by treating Clause 17 as procedure for appointment of arbitrator agreed between the parties. Clause 17 provides that any dispute or differences of and/or in connection to the agreement shall be resolved by mutual discussions, failing which by a sole arbitrator wither mutually agreed or not. As per this clause the disputes or differences, at the first are supposed to be resolved by mutual discussions and on their failure to get mutually resolved by a sole arbitrator, wither mutually agreed or not. 18. The provision aforesaid provides a mode of dispute redressal, but not a procedure for appointment of the arbitrator. The term wither mutually agreed or not indicates that if the parties fails to resolve their disputes or differences by mutual discussions, then the only mode acceptable for resolving the disputes shall be arbitral proceedings by a sole arbitrator, irrespective of the fact that the parties mutually agree for that or not. The term wither mutually agreed or not indicates that if the parties fails to resolve their disputes or differences by mutual discussions, then the only mode acceptable for resolving the disputes shall be arbitral proceedings by a sole arbitrator, irrespective of the fact that the parties mutually agree for that or not. The arbitrator in such eventuality is required to be appointed in accordance with the mode given under Section 11 of the Act of 1996. The purchasers, therefore, were supposed to make a request first to the applicant to agree for appointment of sole arbitrator and further to appoint that. On being failed to get arbitrator appointed within a period of 30 days, the purchasers were at liberty to approach to Hon'ble the Chief Justice or any person or institution designated by him for appointment of arbitrator. The term wither mutually agreed or not in Clause 17, in no case permit any party to the agreement for appointment of arbitrator unilaterally. In my considered opinion the purchasers wrongly interpreted Clause 17 of the conveyance deed, thus, erroneously proceeded for appointment of sole arbitrator unilaterally. Such appointment of sole arbitrator being not in consonance with Clause 17 referred above is absolutely non-consequential, thus, the process initiated by the sole arbitrator is not having any legal sanctity. 19. The arbitrator in the instant matter can be appointed as per provisions of sub-sections (5) and (6) of the Act of 1996. Accordingly, this application is allowed. Hon'ble Mr. Justice H.R. Panwar, a retired Judge of this Court, resident of 113-B, Kanishka Resort, Near DPS, Paal Bye Pass Road, Jodhpur, is hereby appointed as sole arbitrator to resolve the disputes between the parties arising under the deed of conveyance dated 12.9.2005. Learned sole arbitrator shall be entitled to have fee, remuneration and other perks in accordance with the alternative dispute resolution 2009 prescribed by the Rajasthan High Court. 20. Registry is directed to send a copy of this order to Hon'ble Mr. Justice H.R. Panwar at his residential address within a period of one week from today. Order accordingly.