ORDER These are three petitions under Section 11 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to “the said Act”). Contractual arrangments were entered into inter se the parties whereby the petitioner was required to carry out electrical works in the respondents' development projects “KGS-VRUDHI” and “KGS-GREEN”, at Chennai and Trivandrum, for which contracts were executed on 23.05.2011, 01.06.2011 and 31.05.2011. It is the case of the petitioner that progress of the work was slow, which was eating up the profits and since the position did not improve, a decision was taken by the petitioner to relieve itself from the projects in the month of January, 2012 and January 2013 respectively. The final running bills are said to have been executed on 25.02.2012, 30.01.2012 and 25.01.2012 for Rs.64,89,825.63, Rs.12,23,742.00 and 7,67,067.00 respectively and the respondents have not paid the amounts due. The amounts were not paid and thus the petitioner opted to invoke clause-10 of the contract which provide for arbitration and which reads as under: “Clause 10: Any claim or dispute relating to interpretation or execution of this contract that cannot be settled amicably at site shall be referred to the Director of KMCL, who shall be the final authority to decide upon any dispute pertaining to this Contract. The decision made by the Director shall be final and binding on both parties.” 2. A legal notice is stated to have been sent on 17.03.2014, but no reply was forthcoming. The petitioner claims that the Arbitrator would be the Director of respondent and would thus definitely be interested in the outcome of the disputes being disqualified to act as an Arbitrator, in view of the Judgment of the Honourable Supreme Court in P. Dasaratharama Reddy Complex vs. Government of Karnataka reported in ( 2014 (2) SCC 201 ), and thus this Court should appoint an independent Arbitrator. 3. On the first date of listing of these petitions itself, it was disclosed by the learned counsel appearing for the petitioner that one of the Directors had been appointed as an Arbitrator, who had disclosed his financial interest, and this aspect was confirmed on the subsequent date, that the Arbitrator so appointed had 33.35% share holding. Such intimation had not been received till the filing of the petition on 22.09.2014. 4. Such intimation had not been received till the filing of the petition on 22.09.2014. 4. On the Court's query about the modes to be opted in such a situation, learned counsel for the petitioner relied upon the Judgment of the Honourable Supreme Court in Indian Oil Corporation Ltd., and Others vs. M/s.Raja Transport (P) Ltd., ( 2009(8) SCC 520 , to contend that the jurisdiction of this Court under Section 11 of the said Act is not limited where a person is sought to be appointed as a Sole Arbitrator, who is an employee and has financial interest qua one of the parties especially when it is not a State or instrumentality of the State and in this behalf, direction No.(vii) in Paragraph-537 of the Judgment was referred to and in view thereof, the petition was admitted and notice was issued to the respondent. 5. The respondent entered appearance and filed their reply-cum-common counter affidavit claiming as under: “(i) Arbitrator had been appointed before filing of the petition. (ii) The agreements containing the arbitration clause was unstamped. (iii) On merits of the face, the respondent had good defence on account of sub-standard quality of work Work being abundant. (iv) The Managing Director of the respondent without consent of the Board, awarded huge contracts to companies in which he had major controlling interest. (v) If a Director of the respondent cannot act as an arbitrator, no one else can, as the contract cannot be re-written. The respondent did not agree to anyone else as an arbitrator.” 6. In the course of the proceedings, learned counsel for the respondent raised preliminary objections based on the failure to file the original agreement before the Court and the same being unstamped. Thus, it was pleaded that those agreements were incapable of being relied upon in view of the pronouncement of the Hon'ble Supreme Court in SMS Tea Estates Pvt., Ltd., vs. Chandmari Tea Company Pvt., Ltd., reported in ( 2011 (14) SCC 66 ), though it was conceded that this Court can impound the document under Section 33 of the Indian Stamp Act, 1899 and follow the procedure under Sections 35 and 38 of the said Act. The original agreements were filed in the subsequent hearing and the learned counsel for the petitioner sought assistance from the Judgment of the Hon'ble Supreme Court in Chilakuri Gangulappa vs. Revenue Divisional Officer, Madanpalle and another reported in 2001 (4) SCC 197 especially paragraph-12 to contend that when the Court chooses to admit a document for compliance with such a condition as stipulated, the Court need to forward only a copy of the document to the Collector together with the amount collected from the party for taking adjudicatory steps. As to the stamp duty admissible, the attention of the Court was drawn to Schedule-1 of the Indian Stamp Act, 1899 dealing with the Agreement or Memorandum of an Agreement, being Clause-5, where sub-clause -(j) provides for a Rs.20/-stamp duty, if otherwise not provided for, thus ten times this amount resulted in Rs.200/-, each being liable to be paid as penalty to make the documents admissible. The procedure was directed to be followed and the agreements were duly stamped and produced before the Court thereafter. 7. These petitions were again listed before the court, where the following three-fold submissions were made as set out in the order dated 24.07.2015 as follows:- “1) The objection about incapacity of the Arbitrator to proceed in view of having financial interest and the position as Director should have been first raised before the Arbitrator and the procedure laid down under the Arbitration and Conciliation Act, 1996, should have been followed. 2) The principle of waiver would come into play as envisaged under Section 4 of the Arbitration and Conciliation Act, 1996. This waiver would come into play since the arbitration proceedings were pending and in this behalf, he relies upon the Judgement in Datar Switchgears Ltd., vs. Tata Finance Ltd., and another (2000) 8 SCC 151 .” 3. If the “blue pencil” rule is applied as enunciated in Shin Satellite Public Co. Ltd., vs. Jain Studios Ltd., (2006) 2 SCC 628 , then in the arbitration clause in question, there can be no segregation and the consequence would be that the arbitration clause would cease to exist as unenforceable. In this context, the judgment in P.Dasaratharama Reddy Complex vs. Government of Karnataka and another, (2014) 2 SCC 201 )” may also be noted. 8. In this context, the judgment in P.Dasaratharama Reddy Complex vs. Government of Karnataka and another, (2014) 2 SCC 201 )” may also be noted. 8. Learned counsel for the petitioner on the other hand submitted that in view of paragraph-48(vii) of the Judgment in Indian Oil Corporation case cited supra, this court would step into appoint an Arbitrator. 9. In so far as the first plea referring to aforesaid is concerned, the petitioner did raise an objection to the Arbitration proceeding with the matter both on account of the plea of being a major shareholder as well as Director of the company. The question which thus arises is, whether the initiation of the proceedings by the Arbitrator implied that the Court was denuded of the power to appoint someone else as arbitrator under Section 11 of the said Act in view of the aforesaid position. 10. In my view, the aforesaid issue is no more res integra in the context of the observations made by the Hon'ble Supreme Court in paragraph-36 of the Judgment in Indian Oil Corporation Limited case (supra), which make it clear that unlike the Government/statutory bodies/government company, the position in case of a private company is different, and thus, if a Director of a private company (which is already a party to an arbitration agreement) is named as an Arbitrator, there would be a valid and reasonable apprehension of bias in view of his position and interest. Not only that, in the present case, arbitrator appointed is not merely the Director, but has 33.35% share-holding in the company. Thus, it is the discretion of the Court not to appoint such a person. The scope of Section 11 of the said Act contained in the scheme of appointment of Arbitrators as summarised in paragraph-48 of the Judgment has specifically deals with the present circumstances and thus, I see no purpose in only completing the formality of taking the objection before the Arbitrator and thus letting the Arbitrator adjudicate that question. This Court would thus be well within its authority to appoint an independent arbitrator in such a situation. 11. Now coming to the second plea which is of waiver by relying on Section 4 of the said Act, the said provision reads as under: “4. This Court would thus be well within its authority to appoint an independent arbitrator in such a situation. 11. Now coming to the second plea which is of waiver by relying on Section 4 of the said Act, the said provision reads as under: “4. Waiver of right to object – A party who knows that -- (a) any provision of this Part from which the parties may derogate, or (b) any requirement under the arbitration agreement, has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object.” 12. In the facts of the present case, the petitioner has been raising objections to the appointed Arbitrator acting in that capacity. The sequence of events in respect of the notice of the Arbitrator sent on 17.09.2014 and 25.09.2014 had been set out in the reply of the petitioner through counsel dated 01.10.2014. The process of arbitration had been initiated by the petitioner through notice dated 12.03.2014. In paragraph-2 of the notice dated 01.10.2014, the raising of the objection immediate after disclosure of all the relevant interests of the Arbitrator and the moving of the present petition has also been informed. I thus fail to see how the principle of waiver would apply. 13. We may notice that in the course of arguments, it was apparent that first two pleas are more in the nature of formality and the real contest arises out of the third plea. 14. The submission of the respondent in this behalf was that the arbitration clause-10 requires a reference to be made to the Director of the respondent, who was to be the final authority, to decide upon any dispute pertaining to the contract, as the decision was final and binding on both the parties. In the context of this language, the plea advanced was that if the Director cannot act as an Arbitrator, then the Arbitration Clause itself would stand obliterated, as it is not possible to substitute the Arbitration Clause. To buttress his argument, reliance was placed on the judgment of the Hon'ble Supreme Court in Shin Satellite Public Co. Ltd., vs. Jain Studios Ltd., reported in (2006) 2 SCC 628 cited supra. To buttress his argument, reliance was placed on the judgment of the Hon'ble Supreme Court in Shin Satellite Public Co. Ltd., vs. Jain Studios Ltd., reported in (2006) 2 SCC 628 cited supra. The plea which would thus be required to be examined is, whether the objectionable part of the clause would be severable while permitting the main clause/agreement to stand. 15. The test laid down for deciding the validity of a contract was “substantial severability” and not “textual divisibility”. It was the duty of the court to severe and separate trivial or technical parts by retaining the main or substantial part and by giving effect to the latter, if it is legal, lawful and otherwise enforceable. 16. In the facts of the aforesaid case, while discussing similar situations, a portion of the sentence in the arbitration clause viz., “the award of the arbitrator shall be final, conclusive and binding on both parties to the contract” was held as severable from the main clause to the extent it makes the award final and conclusive. This appears to be the reason that while relying on this Judgment, learned counsel for the respondent did not raise the issue about the last sentence of Clause-10 making the decision by the Director final and binding. The emphasis was on the observations in paragraph-14, where reference was made to the Halsbury's Laws of England (4th edition. Volume.9) page.297, paragraph 430, the relevant portion of which is extracted as under :- “Secondly, where severance is allowed, it must be possible simply to strike out the offending parts but the court will not rewrite or rearrange the contract. Thirdly, even if the promises can be struck out as aforementioned, the court will not do this if to do so would alter entirely the scope and intention of the agreement.” Thereafter paragraph-15 records as under :- “15. It is no doubt true that a court of law will read the agreement as it is and cannot rewrite nor create a new one. It is also true that the contract must be read as a whole and it is not open to dissect it by taking out a part treating it to be contrary to law and by ordering enforcement of the rest if otherwise it is not permissible. It is also true that the contract must be read as a whole and it is not open to dissect it by taking out a part treating it to be contrary to law and by ordering enforcement of the rest if otherwise it is not permissible. But it is well settled that if the contract is in several parts, some of which are legal enforceable and some are unenforceable, lawful parts can be enforced provided they are severable.” 17. On the other hand, it may also be noticed that in P.Dasaratharama Reddy Complex vs. Government of Karnataka case (cited supra), the Hon'ble Supreme court emphasised the essense of arbitration agreement being adjudication of the disputes by independent/neutral person/body and thus, the Officer or authority of one of the parties overseeing/having the jurisdiction over the subject-matter of the contract cannot be an arbitrator nor can there be a clause empowering such person to resolve disputes qua the arbitration clause. 18. On the other hand, learned counsel for the petitioner submitted that the mode of the resolution of the disputes has been settled to be one through arbitration. The question is actually one as to who should be the arbitrator and since the Director of the company being party to the agreement cannot be an Arbitrator in view of the settled judicial pronouncements, all that is required is that the court exercises its jurisdiction under Section 11 of the Act to appoint a neutral arbitrator. This jurisdiction the Court will exercise in terms of Indian Oil Corporation Ltd., and Others vs. M/s.Raja Transport (P) Ltd. case (cited supra). 19. Orders were reserved in this case on 24.07.2015, but subsequently learned counsel for the respondent sought to bring on record two judicial pronouncements by serving advance copy on the learned counsel for the petitioner. They are as under : (i) The case in Cross Brown Company (Nelson) 4 A.D.2d 501 (N.Y.App. Div. 1957) by the Appellate Division of the Supreme Court of New York, First Department, where the arbitration clause required settlement by submitting the disputes for arbitration to the Board of Directors of the employer, and the dispute arose between the employer and the employee who were parties to the agreement. Div. 1957) by the Appellate Division of the Supreme Court of New York, First Department, where the arbitration clause required settlement by submitting the disputes for arbitration to the Board of Directors of the employer, and the dispute arose between the employer and the employee who were parties to the agreement. The court noticed that an Arbitrator is not a Judge in a strict sense, but his functions are quasi-judicial in character, and he must be a person in a position to act impartially, one who is not biased or prejudiced in favour of or against either side to the controversy. Natural justice would require that a man may not be a judge in his own cause. Irrespective of any proof of actual bias or prejudice, the law presumes that a party to a dispute cannot have that disinterestedness and impartiality necessary to act in a judicial or quasi-judicial capacity regarding that controversy. This disqualification to act rests upon sound public policy and any other rule would be repugnant to a proper sense of justice. As a general rule, since the arbitration is a contractual method of settling disputes, whom the parties choose to act as an Arbitrator was the matter of their own judgment. Reversing the order, it was observed that a party may stay arbitration where there is no valid contract to arbitrate and because of this reason, the arbitration proceedings commenced by the respondent should have been stayed and the appellant's suit should not have been enjoined. (ii) In the case of Kim Rivera vs. American General Financial Services, Inc., a/k/a/ American General Finance, Inc., American Security Insurance Company, a/k/a American Secuirty Group, Linda Callahan, and Jane Doe in Opinion No.2011-NMSC-033, before the Supreme Court of the State of New Mexico, broadly the question was, whether the arbitration provisions in the title loan contract can be enforced, because the involvement of the now-unavailable National Arbitration Forum (NAF) to arbitrate contract disputes was the integral requirement of the parties to the agreement. It was observed that where NAF is integral to the parties' agreement to arbitrate through the matter of contractual interpretation and the intention was to resolve the disputes solely through a specific Arbitration provider, the parties' intent would be frustrated, if a court appointed a different Arbitration provider. It was observed that where NAF is integral to the parties' agreement to arbitrate through the matter of contractual interpretation and the intention was to resolve the disputes solely through a specific Arbitration provider, the parties' intent would be frustrated, if a court appointed a different Arbitration provider. Since the arbitration provisions use mandatory rather than permissive language qua NAF, selection of NAF rules and the mandatory language of the contract “supported the conclusions that the NAF was integral to the agreement to arbitrate.” 20. The counsel for the petitioner filed written arguments in rebuttal of the aforesaid two Judgments touching the legal position in India, in the context of the observations in Indian Oil Corporation Limited case (cited supra), where it has been held that in case there is material to create a reasonable apprehension of bias, then the court exercising power under Section 11 of the Act, can ignore the designated arbitrator and appoint an independent arbitrator in accordance with Section 11(8) of the said Act. The relevant observations are as under :- “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-I 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 Administration vs. Patel Engg.Co. 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 Administration vs. Patel Engg.Co. Ltd., (2008) 10 SCC 240 , 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 person 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 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 resorted for valid reasons.” 21. It has been further submitted that despite the contract having been entered into with eyes wide open, bias hits the root of the matter and hence an independent Arbitrator can be appointed. The view of the court was not that the arbitration clause is unconscionable and that the clause would be obliterated, but the process of resolution of dispute through arbitrator should be encouraged. 22. In the given facts, it has been emphasised that the Clause does not show that arbitration shall be by the Director “alone” or used the words “or nobody else”. In fact, it was further observed that even where the main contract perishes, the arbitration clause should survive. 23. The petitioner also brought to the notice of the court that Application Nos.1967 to 1969 of 2014 were filed under Section 9 of the Act for a direction to the respondents to furnish security and the same was ordered in favour of the petitioners on 27.03.2015. The respondent never took a stand before the learned Single Judge that the arbitration clause is invalid on the ground that the Arbitrator is an interested party and hence the Arbitration Clause itself is unconscionable. 24. The respondent never took a stand before the learned Single Judge that the arbitration clause is invalid on the ground that the Arbitrator is an interested party and hence the Arbitration Clause itself is unconscionable. 24. The submission is that the respondents are going beyond what has been pleaded in the aforesaid context and a copy of the Judgment of the learned Single Judge has been annexed to the written arguments. 25. In the conspectus and appreciation of the aforesaid facts, I am of the view that the intent to go for arbitration is clearly unequivocal. The only question is, where the person specified by designation in the arbitration clause is incapable of arbitration, should the arbitration clause itself go? The answer to this question would be in the negative more so in the facts of the present case. 26. The power of the Court while exercising jurisdiction under Section 11 of the said Act to replace the arbitrator cannot be said to be in dispute in view of the observations in Indian Oil Corporation case cited supra. The Hon'ble Supreme Court has traversed a slightly different path from the judgments referred to by the learned counsel for the respondent subsequently to by referring of the Judgments of the Appellate Division of the Supreme Court of New York in the Matter of Cross Brown Co. (Nelson) and the Supreme Court of the State of New Mexico in Kim Rivera vs. American General Financial Services, Inc. (cited supra). If the view reflected by the Court on the issue was that the clause itself would stand obilerated, in such a case, there would have been no occasion to make the observations qua replacement of the arbitrator while exercising jurisdiction under Section 11 and appointing an independent Arbitrator in accordance with Section 11(a) of the said Act. 27. In the facts of P.Dasaratharama Reddy Complex case cited supra, Clause-29 therein which was referred to as an Arbitration Clause did not provide for any dispute resolution through arbitration at all. It had not used the phrase, “Arbitration or Arbitrator”. Not only that, the mechanism of decision to be invoked by the Chief Engineer and the dispute being unsolved with the same, was specified as the reason for approaching the Civil Court for settlement of disputes. It had not used the phrase, “Arbitration or Arbitrator”. Not only that, the mechanism of decision to be invoked by the Chief Engineer and the dispute being unsolved with the same, was specified as the reason for approaching the Civil Court for settlement of disputes. The decision of the Chief Engineer was to be binding only on the contractor and not on both the parties. 28. It has rightly been submitted by the petitioner that the phrase for exclusivity of the “Director alone” being the arbitrator does not form the base/substratum of the arbitration clause. It is also quite apparent that the respondent has been seeking to improve the case from time to time. This is fortified by the fact that in proceedings under Section 9 of the said Act initiated by the petitioner, there was no such plea as aforesaid and a decision has been given on merits of the case holding there was manifest intention of the parties to arbitrate. 29. Thus it appears that faced with the situation wherein the Director holding such a large share in the respondent company cannot proceed to arbitrate, an endeavor is being made by the respondent to somehow wriggle out of the obligation of having the disputes resolved through the chosen method of arbitration. 30. I am thus of the view that the aforesaid position clearly shows that there is a valid and binding arbitration clause, disputes having arisen inter se the parties, jurisdiction is of this Court, and this Court has to exercise power under Section 11(a) of the said Act to substitute the Arbitrator. 31. In view of the aforesaid, I hereby appoint Thirumathi Justice Prabha Sridevan, a retired Judge of this Court as the Sole Arbitrator to enter upon the reference and adjudicate the disputes inter se the parties. The arbitration proceedings will be conducted under the ageis of the Madras High Court Arbitration Centre and the parties will be governed by the Rules of the Madras High Court Arbitration Centre (MHCAC) (Arbitration Proceedings) & (Administrative Cost and Arbitrators' Fees) Rules, 2014. 32. The original petition is accordingly allowed, leaving the parties to bear their own costs. The assistance rendered by both the counsel for the parties is appreciated.