JUDGMENT : H.B. Prabhakara Sastry, J. 1. MFA No. 101307 of 2015 (AA) has been filed by the appellant therein under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’, for brevity), seeking setting aside of the judgment and award dated 5-1-2015 passed by the Court of Principal District and Sessions Judge, Ballari, in Arbitration Appeal No. 6 of 2014, confirming the award dated 14-12-2013 passed by the Sole Arbitrator-respondent 2 in A.C.A.C.P.(GOBINS) No. 1 of 2013. 2. MFA Crob. No. 100134 of 2015 has been filed by the respondent 1 in MFA No. 101307 of 2015 under Order XLI, Rule 22 of the Code of Civil Procedure, 1908 read with Section 37 of the Act, seeking modification of the judgment and award dated 5-1-2015 passed by the Principal District Judge, Ballari, in Arbitration Appeal No. 6 of 2014. 3. The appellant in MFA No. 101307 of 2015 in its memorandum of appeal has taken a contention that, it was not effectively represented in the Arbitration proceedings. The Arbitrator entered into reference nearly four years after his appointment. The claim of the respondent therein is barred by limitation. The letter appointing the Arbitrator and the letter of consent by the Arbitrator are created documents. The appellant has further stated that the immediate Court below did not notice the fact that the award passed by the Arbitrator was an ex parte award and the same was against the principles of natural justice. The orders of both the Courts below are also not sustainable as the appellant-Company has been registered as a Sick Industrial Company ‘with the BIFR, New Delhi. However, the said fact was not brought before the Court below due to oversight. 4. The appellant in MFA No. 101307 of 2015, during the pendency of this appeal, filed I.A No. 1 of 2017 under Section 37 of the Act read with Order XLI, Rule 2 of the Code of Civil Procedure, seeking leave to urge additional grounds in support of its appeal. In the additional grounds, it is contended that the Arbitration clause binding on both the parties clearly mentions that the dispute shall be referred to Arbitration consisting of two Arbitrators, one is to be appointed by the Contractor and other by the Purchaser. In the additional grounds, it is contended that the Arbitration clause binding on both the parties clearly mentions that the dispute shall be referred to Arbitration consisting of two Arbitrators, one is to be appointed by the Contractor and other by the Purchaser. In the event of failure on the part of either of the party to name the Arbitrator, the parties should, invoking the Arbitration clause, have to approach the High Court seeking appointment of the Arbitrator as required under Section 11 of the Act. It is only after the Chief Justice or any designated Judge of the High Court appoints an Arbitrator, the proceedings can be continued. It is further stated that the place of arbitration was at Ballari. The award indicates that the Arbitration Tribunal was constituted at Chennai, without the concurrence of the appellant. With these, the appellant has prayed for setting aside of the judgment and award under appeal. 5. In response to the notice, the 1st respondent-Company is appearing through its Counsel. 6. The 1st respondent-M/so Gobins India Engineering Private Limited, filed cross-objection under Order XLI, Rule 22 of the Code of Civil Procedure read with Section 37 of the Act, under MFA Cross-objection No. 100134 of 2015 . In its Cross-objection, the cross-objector/respondent contended that, in the petition, claim was made for Rs. 1,48,66,068/-, including interest. The said claim was upheld by the Sole Arbitrator. The Court below, though dismissed the Arbitration application, erred in deducting Rs. 46,00,000/- on the assumption that such amount was paid by the 1st respondent out of the claim of Rs. 1,48,66,068/-. It ignored the fact that the deduction for the said amount was already given by the Cross-objector while making claim for the payment of Rs. 1,48,66,068/-. It further contended that reduction of interest from 24% p.a. to 18% p.a. from the Court below was not warranted. With this, it has prayed for modification of the judgment and award under appeal and for awarding an enhanced amount from Rs. 97,80,308/- to Rs. 1,48,66,068/- and also to award interest at the rate of 24% p.a. from November 2009, till the date of actual payment. 7. The respondent 1 herein filed its detailed objection to I.A No. 1 of 2017 filed by the appellant herein seeking leave to urge the additional grounds. 97,80,308/- to Rs. 1,48,66,068/- and also to award interest at the rate of 24% p.a. from November 2009, till the date of actual payment. 7. The respondent 1 herein filed its detailed objection to I.A No. 1 of 2017 filed by the appellant herein seeking leave to urge the additional grounds. In its statement of objection to the said I.A., the 1st respondent-M/s. Gobins India Engineering Private Limited, contended that the award passed by the Arbitrator under Section 31 of the Act can be questioned under specified grounds mentioned under Section 34 of the Act, by filing an application within 90 days from the receipt of the award. The said time can be extended only by 30 days and not beyond. As such, the additional ground cannot be permitted to be urged at this stage with a delay of more than 3 years from the date of the award, which was passed on 14-12-2013. It is further contended that such grounds were not raised before the Arbitrator under Section 12(3) of the Act. The time stipulated under Sections 13(2) and 16(2) of the Act have lapsed. Therefore, the party to the proceeding shall be deemed to have waived his right to object, in view of Section 4 of the Act. It is further contended by the said respondent-Company, that the time barred application seeking amendment of the pleading should not be allowed and right accrued to the opposite party should not be allowed to be taken away by virtue of the amendment. The right accrued to this respondent under Section 4 of the Act will be lost in case if amendment is allowed. He also contended that the Arbitration and Conciliation Act 1996, being a special enactment, Order 41, Rule 2 of the Code of Civil Procedure, cannot be pressed into service at this juncture. He finally contended that Section 34 of the Act provides that the award can be questioned only on certain grounds mentioned in that section. If the ground available under Section 34 is not taken in Section 34 application, it cannot be allowed to be taken in appeal under Section 37 of the Act. 8. He finally contended that Section 34 of the Act provides that the award can be questioned only on certain grounds mentioned in that section. If the ground available under Section 34 is not taken in Section 34 application, it cannot be allowed to be taken in appeal under Section 37 of the Act. 8. After hearing both sides, on the date 30-2-2017, this Court framed the following questions as important questions of law that arise for consideration of the Court: (i) Whether the objections about jurisdiction of the Sole Arbitrator even though not raised before the learned Arbitrator and learned District Judge in the petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (‘the Act’, for short) can be so raised for the first time before this Court or not? (ii) Whether a party is bound to apply to the High Court under Section 11 of the Act, for appointment of the Arbitrator, in case there is no express or implied consent from the other party to the contract about appointment of Sole Arbitrator by one party and whether the requirement of approaching the High Court for appointment of the Arbitrator under Section 11 of the Act can be waived by the party in view of Section 4 of the Act? For framing the above questions, neither of the parties in this appeal had any objection and that it was only after hearing them on I.A. No. 1 of 2017, in which for the first time the appellant herein i.e., M/s. Basai Steels Private Limited, had taken up the contention on non-compliance of Section 11 of the Act, those questions were framed. As such, the said I.A. No. 1 of 2017, impliedly stands allowed. 9. For the sake of convenience, the parties herein would be referred henceforth with the ranking they were holding before the Arbitrator respectively i.e., M/s. Gobins India Engineering Private Limited, the 1st respondent herein was the petitioner and M/s. Basai Steels Private Limited, the appellant herein was the respondent before the Arbitration Tribunal. From a perusal of the materials placed before us, the case of the parties can be summarised as below: Both the companies in this appeal are companies registered under the Companies Act, 1956. The petitioner-Company was an Engineering Company undertaking several Engineering Works. From a perusal of the materials placed before us, the case of the parties can be summarised as below: Both the companies in this appeal are companies registered under the Companies Act, 1956. The petitioner-Company was an Engineering Company undertaking several Engineering Works. The respondent-Company made an enquiry with the petitioner-Company for execution of certain mechanical jobs for the integrated Steel Plant Project at Sidiginamola Village, where the project office was located. The petitioner submitted its offer and on mutual negotiations, they entered into an agreement, whereunder, the petitioner- Company was to execute certain Engineering works in the respondent-Company and raise bills, which the respondent had to honour. According to the petitioner, though he commenced work during February 2009, the respondent did not take any interest, but neglected to provide sufficient materials for fabrication and clearance for erection in time, as a result, the work got delayed and the petitioner incurred huge loss. Several communications were exchanged between them. The petitioner submitted final bill on 28-10-2009, but the respondent failed to make payment, except paying a sum of Rs. 5,00,000/- as against total outstanding of Rs. 1,02,80,308/- leaving a balance of Rs. 97,80,308/-. The respondent did not respond to the further communication made by the petitioner. As such, according to the petitioner, the respondent was liable to pay to it a sum of Rs. 1,48,66,068/-, together with interest up to January 2012 at the rate of 24% p.a. The agreement between them had an Arbitration Clause. On 8-7-2010, the petitioner-Company named one Sri S. Dhassaiya, as an Arbitrator to resolve the dispute arising between the parties and the same was communicated to the respondent-company with a request to appoint an Arbitrator from the side of the respondent-Company. However, the respondent-Company did not respond to the said letter. As such, the petitioner-Company proceeded further in submitting its case to Sri S. Dhassaiya, Advocate, High Court of Madras, who was appointed by it as an Arbitrator. The-said Sri S. Dhassaiya, under his letter dated 30-12-2010, addressed to both the companies herein stated that he has accepted his appointment as an Arbitrator under the mandate and entered his reference in terms of the provisions of the Arbitration and Conciliation Act, 1996. The-said Sri S. Dhassaiya, under his letter dated 30-12-2010, addressed to both the companies herein stated that he has accepted his appointment as an Arbitrator under the mandate and entered his reference in terms of the provisions of the Arbitration and Conciliation Act, 1996. According to the said Arbitrator, and as could be seen from the records of the Arbitration, submitted before us on 7-4-2013, he had issued notice to both sides fixing the date of first hearing as on 10-5-2013. However, on the said date, due to the alleged sudden demise of Arbitrator’s mother, the proceedings could not be held and the same was adjourned to 20-7-2013. It can be further inferred from the proceedings of the Arbitrator that on 20-7-2013, in the hearing, the respondent appeared along with his Advocate who was also the General Manager of respondent-Company along with his Advocate Mr. Hegde. It is shown in the Arbitration proceedings that on the said date, the respondent took time to file their statement of defence and the matter was adjourned. However, thereafter, neither they filed their statement of defence, nor further participated in the proceedings, as such, keeping the respondent-Company ex parte, the matter was proceeded. Receiving the affidavit filed by the petitioner and marking the documents through the petitioner from exhibits A1 to A38 and hearing the arguments from the petitioner’s side, the 2nd respondent-Arbitrator by his award dated 14-12-2013 allowed the petition and directed the respondent to pay a sum of Rs. 1,48,66,068/- to the petitioner together with subsequent interest at the rate of 24% p.a. for the outstanding amount of Rs. 97,80,308/- from January 2012 till its realisation together with a sum of Rs. 25,000/- towards cost of Arbitration. 10. The respondent herein challenged the said award of the Arbitrator in the Court of the District and Sessions Judge at Ballari under Section 34 read with Section 37 of the Act and Section 151 of the CPC, which was numbered as Arbitration Appeal No. 6 of 2014. The lower Court records shows that the said Court, treating the said petition before it as an Arbitration Application (Suit) No. 6 of 2014, by its judgment and decree dated 5-1-2015, dismissed the Arbitration Application (Suit) No. 6 of 2014. However, in the said judgment and decree, it held that the respondent-Company was liable to pay the award amount of Rs. However, in the said judgment and decree, it held that the respondent-Company was liable to pay the award amount of Rs. 97,80,308/- with interest at the rate of 18% p.a. from January 2012 till its realisation, instead of 24% p.a. awarded by the Arbitrator. It is the said judgment and decree of the Court below, the respondent-Company has challenged in MFA No. 101307 of 2015 and at the same time, petitioner-Company has also filed its Cross-objection No. 100134 of 2015, seeking for modification of the judgment and award under appeal, by enhancing the amount from Rs. 97,80,308/- to Rs. 1,48,66,068/- and also to award interest at the rate of 24% p.a. from November 2009 till the date of actual payment. 11. In this matter, the first question among the two important questions of law framed on the date 13-2-2017, is with respect to the stage of raising of objection regarding the jurisdiction of the Sole Arbitrator. For better analysis, the said question is reproduced once again herebelow: “(i) Whether the objections about jurisdiction of the Sole Arbitrator even though not raised before the learned Arbitrator and learned District Judge in the petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (‘the Act’, for short) can be so raised for the first time before this Court or not?” In this regard, the learned Counsel for the respondent-M/so Basai Steels Private Limited, drew the attention of this Court to a paragraph in the judgment of the Hon’ble Supreme Court in the case of Waverly Jute Mills Company Limited and Another v Raymon and Company (India) Private Limited and Another, (1963) 3 SCR 209 : AIR 1963 SC 90 . The said paragraph is reproduced hereinbelow: “Now an agreement for arbitration is the very foundation on which the jurisdiction of the Arbitrators to act rests, and where that is not in existence, at the time when they enter on their duties, the proceedings must be held to be wholly without jurisdiction. And this defect is not cured by the appearance of the parties in those proceedings, even if that is without protest, because it is well-settled that consent cannot confer jurisdiction. And this defect is not cured by the appearance of the parties in those proceedings, even if that is without protest, because it is well-settled that consent cannot confer jurisdiction. But in such a case there is nothing to prevent the parties from entering into a fresh agreement to refer the dispute to arbitration while it is pending adjudication before the Arbitrators, and in that event the proceedings thereafter before them might be upheld as referable to that agreement, and the award will not be open to attack as without jurisdiction. But it will make all the difference in the result whether the parties have entered into an arbitration agreement as defined in Section 2(a) of the Arbitration Act or have merely taken steps in the conduct of proceedings assumed or believed to be valid. In the former case the award will be valid; in the latter, a nullity.” With great respect to the said decision, it is submitted that in the facts and circumstances of the present case, the same is not applicable for the reason that in the case on hand, there is no dispute between the parties regarding the existence of the Arbitration Agreement. 12. The respondent-M/s. Basai Steels Private Limited, in its letter at Reference No. WO/BSPL/CIVIL/007/01/09-10, dated 2-4-2009, addressed to the petitioner-M/s. Gobins India Engineering Private Limited, while stating about the Work Order and the contract between them, has also referred to and produced several documents including “other terms and conditions” of their contract at Annexure-V. Clause 29.0 of the said Annexure at page 13; reads as below: “29.0 Arbitration.-All disputes whatsoever arising between parties, which cannot be settled through mutual negotiations in good faith, shall be settled by arbitration as per the provisions of the Arbitration and Conciliation Act, 1996, along with latest amendments.” This fact is not in dispute. As such, there is no dispute regarding the existence of the Arbitration Agreement between the parties and also the application of the Act for the process of Arbitration. 13. Undisputedly, the respondent did not raise any objection about the jurisdiction of the alleged sole Arbitrator Sri S. Dhassaiya, either before the said Arbitrator under Section 16 of the Act, or before the lower Court in its petition under Section 34 of the Act. 13. Undisputedly, the respondent did not raise any objection about the jurisdiction of the alleged sole Arbitrator Sri S. Dhassaiya, either before the said Arbitrator under Section 16 of the Act, or before the lower Court in its petition under Section 34 of the Act. However, after hearing the argument from both sides and going through I.A. No. 1 of 2017, whereunder the respondent-M/s. Basai Steel Private Limited, has intended to urge some additional grounds, it is clear that the said applicant/respondent wanted to question the appointment of the Arbitrator i.e., composition of the Arbitral Tribunal, but not the power of the Arbitrator to adjudicate the dispute that has been arisen between the parties, it is because the very appointment of the Arbitrator itself is not acceptable to the said respondent-Company, which has, in its argument canvassed that the Arbitrator had no jurisdiction. It is also clear by the fact that neither parties have disputed the existence of dispute between them regarding the claim made by the petitioner-Company as against the respondent-Company. It is also not in dispute that an Arbitrator appointed as per the Act shall have the power and jurisdiction to decide the said. dispute. 14. The above contention can further be substantiated by further analysis of this point. 15. For the purpose of case on hand, the meaning of the term ‘jurisdiction’ can. be understood as “the authority given by the Arbitration and Conciliation Act, 1996, to an Arbitral Tribunal, to adjudicate disputes and pass award in the matter, within the parameters of Arbitration Agreement, including ruling on any objections with respect to the existence or validity of the arbitration Agreement”. 16. Section 16 of the Act reads as below: ‘‘16. Competence of Arbitral Tribunal to rule on its jurisdiction.-(1) The Arbitral Tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose.- (a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and (b) a decision by the Arbitral Tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (2) A plea that the Arbitral Tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an Arbitrator. (3) A plea that the Arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (4) The Arbitral Tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified. (5) The Arbitral Tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the Arbitral Tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with Section 34.” A reading of the above Section makes it clear that, any challenge regarding the jurisdiction of the Arbitration Tribunal has to be made before the said Arbitration Tribunal by the party challenging the same. According to the said Section 16(2) of the Act, a party is not precluded from raising such a plea, merely because he has appointed or participated in the appointment of an Arbitrator, which clearly go to show that, a party who has appointed an Arbitrator must challenge the jurisdiction of the Tribunal, which may be regarding lack of power of the Arbitrator to deal with the dispute not contemplated by or not falling within the terms of the settlement to Arbitration, but not regarding the appointment of the Arbitrator. It is for the said reason, a separate provision is made under Section 34(2)(a)(v) of the Act, providing recourse to a Court against Arbitral award challenging the composition of the Arbitral Tribunal. 17. Therefore, it can be noticed that there is a difference between questioning the jurisdiction of Arbitral Tribunal under Section 16 of the Act and challenging the award of the Arbitrator on the ground of composition of the Arbitral Tribunal. 18. The learned Counsel for the petitioner in his argument relied upon two judgments, on the point of challenging the jurisdiction of the Arbitrator. 18. The learned Counsel for the petitioner in his argument relied upon two judgments, on the point of challenging the jurisdiction of the Arbitrator. In Krishna Bhagya Jala Nigam Limited, Bangalore and Another v G. Harischandra Reddy and Another (2005 (2) Kar.L.J.409 (DB)), 2005(2) KCCR 1489 (DB), regarding Section 16 of the Act and the appellant before it not challenging the jurisdiction of the Arbitrator at the appropriate time, the Court was pleased to observe in paras 20 and 21 of is judgment as below: “20. In the instant case, the appellant did not raise the plea of lack of jurisdiction of the Tribunal, in its defence. The objections were only with regard to the merits of the claims put forth by the claimant. Even if such a plea was not taken in defence, it was open for the appellant to challenge the Award on the said ground under Section 34 of the Act. It is not disputed that the plea of lack of jurisdiction was not taken by the appellant either in CMP No. 26 of 1999 before this Court or before the Arbitrator nor before the Court below. 21. In identical fact situation, a Co-ordinate Division Bench of this Court in MFA No. 3683 of 2000 in KSRTC v M. Keshava Raju, dated 27-8-2013, wherein one of us SRNJ speaking to the Bench observed thus: “27. In the light of the above authoritative pronouncement of the Apex Court, at this distance of time, it will be totally unjust, improper, and totally prejudicial to the interest of the award-holder to permit such plea being raised. Although sub-section (2) of Section 16 contemplates that, the plea with regard to jurisdiction may be raised by a party even after submission of statement of defence, in order to entertain such plea, the respondent shall show sufficient and satisfactory cause, to raise such plea at a belated stage. In the instant case, there is total lack of explanation offered by the appellant for not raising the jurisdictional plea either before the Arbitrator or before the Civil Court.”” In that case, with the said observation, along with some more observations on the other aspects of the matter, the Court was pleased to dismiss the appeal. 19. In the instant case, there is total lack of explanation offered by the appellant for not raising the jurisdictional plea either before the Arbitrator or before the Civil Court.”” In that case, with the said observation, along with some more observations on the other aspects of the matter, the Court was pleased to dismiss the appeal. 19. The another case relied upon by the learned Counsel for the petitioner is Union of India v M/s. Pam Development Private Limited, 2014 (137) AIC 143 (SC) : 2014 (3) SLT 241 : AIR 2014 SC (Supp.) 770. In the said case, after observing that, though the Arbitrator was not named in Arbitration Agreement, but was appointed by the Court, the said order has remained unchallenged and has become final. No objection as to lack of jurisdiction was raised even before the Arbitrator. On the other hand, party participated in the proceeding and filed defence statement. Since he failed to challenge jurisdiction of the Arbitrator under Section 16 of the Act, the Court held that the party to be treated as deemed to have waived his right to file objection. As such, the objection raised thereafter held not tenable. 20. Though these two decisions prima facie go to show that the objections about the jurisdiction of the Sole Arbitrator, if not raised before the learned Arbitrator and before the Arbitration Court thereafter, under Section 34 of the Act, the same cannot be raised for the first time, before this Court. Still, as already observed above, the question in the instant case is not regarding the jurisdiction of the Arbitrator to adjudicate the nature of the dispute arisen between the parties and the subject-matter of the dispute, but the question being the composition of the Arbitral Tribunal, which is alleged to be unilateral by the petitioner, the important question of law No. 1 framed by us as above does not require to be considered. However, the question regarding the composition of the Arbitral Tribunal in the absence of any express concurrence in writing, by the other party to the dispute, since can be considered to the required extent in question No. 2 framed by us, we deem that, in the light of facts and circumstances of this case, question number 1 merges in the analysis of question No. 2. 21. 21. At the cost of repetition, second important question framed by us after hearing both sides, is reproduced once again hereinbelow: “ii. Whether a party is bound to apply to the High Court under Section 11 of the Act, for appointment of the Arbitrator, in case there is no express or implied consent from the other party to the contract about appointment of Sole Arbitrator by one party and whether the requirement of approaching the High Court for appointment of the Arbitrator under Section 11 of the Act’ can be waived by the party in view of Section 4 of the Act?” 22. Even though the appellant in the present appeal has raised several grounds, contending that, belated entry of the Arbitrator into reference is barred by limitation and that Arbitrator’s alleged letter dated 30-12-2010 giving consent for his appointment are fabricated documents and that that M/s. Basai Steels Private Limited, Company has been registered as a Sick Industrial Company with the BIFR, New Delhi, but none of those grounds were pressed in the argument of the learned Senior Counsel for the appellant herein. On the other hand, the only point which with more force and vigor canvassed by the learned Senior Counsel representing the appellant herein, was regarding the composition of the Arbitral Tribunal. 23. It is the summary of the argument of the learned Senior Counsel for the appellant herein that, once the respondent-M/s. Basai Steels Private Limited, Company (appellant herein) did not appoint the Arbitrator from its side, then the only recourse left open to the other party to the arbitration was to approach the Hon’ble Chief Justice of the High Court, through an application seeking appointment of the Arbitrator. Since he did not make any such application, on the other hand unilaterally appointed the Arbitrator, the said composition of the Arbitral Tribunal is void ab initio, and as such, all further proceedings conducted by him and the award passed by him is nullity. In his support, the learned Senior Counsel relied upon few decisions of the Higher Courts, which will be discussed at appropriate stage. 24. In his support, the learned Senior Counsel relied upon few decisions of the Higher Courts, which will be discussed at appropriate stage. 24. On the other hand, learned Counsel for the petitioner-Company (1st respondent herein), in his argument submitted that the respondent-Basal Company, even after receipt of notice asking them to appoint an Arbitrator, failed to name any Arbitrator from their side, as such, the petitioner was compelled to appoint the respondent 2 as the Sole Arbitrator. He further submitted that the respondent-Basai Company in response to the notice issued by the 2nd respondent-Arbitral Tribunal, entered its appearance before the Tribunal along with its Counsel and participated in the proceedings. Therefore, after participating in the Arbitration proceedings, since the award passed by the Arbitral Tribunal has gone against it, now cannot contend that the composition of Arbitral Tribunal itself is bad in the eye of law, and as such, the award is a nullity. He further argued that the act of the respondent-Basai Company in participating in the proceeding, has resulted in waiver of its right. As such, the award of the Tribunal is binding upon it. In his support, the learned Counsel also relied upon some of the decisions of the Higher Courts, which will be referred at the appropriate stage here afterwards. 25. As already observed above, the parties have agreed to refer the matter to Arbitration according to the Arbitration and Conciliation Act, 1996. The said Arbitration clause, which is reproduced hereinabove, does not mention the total number of Arbitrators to be appointed in case the dispute arises between the parties. As such, according to Section 10(2) of the Act, Arbitral Tribunal should consist of a Sole Arbitrator. Though the letter of the petitioner-Company, dated 8-7-2010 which is mentioned above and written by the petitioner-Company to the respondent, appoints respondent 2-Sri S. Dhassaiya, Advocate, as its Arbitrator and has called upon the respondent-M/s. Basai Company to appoint their Arbitrator, learned Counsels appearing for both the parties before us fairly submitted in their argument that the appointment should have been of a Sole Arbitrator. Admittedly, the respondent-M/s. Basai Company, even after receipt of the said letter dated 8-7-2010, neither expressly concurred with the appointment of respondent 2 as Sole Arbitrator, nor it named an Arbitrator of its choice. Admittedly, the respondent-M/s. Basai Company, even after receipt of the said letter dated 8-7-2010, neither expressly concurred with the appointment of respondent 2 as Sole Arbitrator, nor it named an Arbitrator of its choice. Highlighting this aspect, learned Senior Counsel for appellant herein (respondent-Basal Company) drew the attention of this Court to Section 11 of the Act and more particularly, to Section 11(5). Section 11(1) to 11(6) of the Act are reproduced hereinbelow: “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. (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 Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court. (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 Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court. (6) Where, under an appointment procedure agreed upon by the parties.- (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, a party may request the Supreme Court or, as the case may be, the High . 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 Supreme Court or, as the case may be, the High . Court or any person or institution designated by such Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. (6-A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement. (6-B) The designation of any person or institution by the Supreme Court or, as the case may be, the High Court. for the purpose of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court.” The Arbitration Clause agreed to between the parties as already. reproduced above, reads thus: “29.0 Arbitration.-All disputes whatsoever arising between parties, which cannot be settled through mutual negotiations in good faith, shall be settled by arbitration as per the provisions of the Arbitration and Conciliation Act, 1996, along with latest amendments.” From the said Arbitration clause, it is clear that the parties have not agreed for any particular procedure for appointing the Arbitrator keeping the application of the Act away for the purpose. As such, the appointment of the sole Arbitrator must be with the concurrence from both sides. 26. If the parties fail to agree on the Arbitrator within 30 days, from the receipt of request by one party to the other party to so agree, the appointment shall be made upon a request of a party by the Supreme Court or the High Court, as the case may be. This is very clear in Section 11(5) of the Act. In the instant case, even after receipt of the notice dated 8-7-2010, the respondent-Company did not choose to appoint the Arbitrator. According to the learned Senior Counsel for the appellant herein, after 30th day of the said letter, the petitioner-Company should have made an application to the Chief Justice of the High Court of Karnataka under Section 11(5) of the Act, seeking for appointment of an Arbitrator. According to the learned Senior Counsel for the appellant herein, after 30th day of the said letter, the petitioner-Company should have made an application to the Chief Justice of the High Court of Karnataka under Section 11(5) of the Act, seeking for appointment of an Arbitrator. Since he failed to do it, the entire proceeding conducted by the Arbitral Tribunal and the award passed by it are null and void. In his support, the learned Senior Counsel relied upon three judgments of the Higher Courts, firstly M/s. Zenith Fire Services (India) Private Limited v Charmi Sales, Arbitration Petition No. 379 of 2012, dated 7-1-2013 (unreported). In this judgment, learned Single Judge of the High Court of Judicature at Bombay, has observed that mere appointment of an Arbitrator by one party, when it was not a mutual appointment, that itself is not sufficient to treat it as a valid appointment of an Arbitrator. It further held, the mutual consent is must, even otherwise to appoint a sole Arbitrator. 27. The second case relied upon by the learned Senior Counsel for the appellant herein is National Small Industries Corporation Limited v National Metal Craft and Others, ILR 1989 Del. 1100. In the said case, after considering the fact before it, the learned Single Judge of Delhi High Court was pleased to conclude that the respondent therein by themselves cannot appoint a Sole Arbitrator, nor does the appointee become Sole Arbitrator because the petitioners did not concur in his appointment. With this, the appointment of such Arbitrator was set aside by the Court. 28. The third case relied upon by the learned Senior Counsel for the appellant herein is Dharma Prathishthanam v Madhok Constructions (Private) Limited ( AIR 2005 SC 214 : 2005 (25) AIC 477 (SC)), (2005)9 SCC 686. In the said case, with respect to Sections 8, 9, 20, 14, 14(2), 14(4), 14(5), 17 and 30 of the Act, the Hon’ble Apex Court was pleased to observe that reference to a Sole Arbitrator as contemplated under Part I of the First Schedule has to be a consensus reference and not an unilateral reference by one party alone, to which the other party does not consent. One party cannot usurp jurisdiction of the Court and proceed to act unilaterally. One party cannot usurp jurisdiction of the Court and proceed to act unilaterally. Since one party cannot force its choice of Arbitrator and/or making of reference on the other, the only solution is to seek appointment from the Court. With this observation, the Hon’ble Apex Court was pleased to hold the appointment of Arbitrator and ex parte proceedings and the award passed by the Tribunal as void ab initio, as such a nullity. 29. The above three decisions prima facie give an impression that a party to a dispute cannot appoint a sole Arbitrator by himself, but he has to make an application to the Chief Justice seeking appointment of an Arbitrator. 30. At this juncture, it was also the argument of the learned Senior Counsel for the appellant that it was for the petitioner-Company, which appointed the respondent 2 as the Arbitrator, to make such an application to the Chief Justice seeking appointment of Arbitrator. Therefore, before proceeding further on the issue whether non-making of such an application under Section 11(5) of the Act to the Chief Justice, would annul the appointment of sole Arbitrator-respondent 2 and secondly, the award passed by the said Tribunal, it is desirable to meet the contention of the learned Senior Counsel for the appellant that it was only the petitioner-Company which should have made such an application to the Chief Justice. 31. The learned Senior Counsel for the appellant herein, while submitting the case of Dharma Prathishthanam (supra), drew the attention of this Court to Section 8(2) of the Arbitration Act, 1940. For easy reference, relevant part of the said Section 8 of the Arbitration Act, 1940 is reproduced hereinbelow: “8. 31. The learned Senior Counsel for the appellant herein, while submitting the case of Dharma Prathishthanam (supra), drew the attention of this Court to Section 8(2) of the Arbitration Act, 1940. For easy reference, relevant part of the said Section 8 of the Arbitration Act, 1940 is reproduced hereinbelow: “8. Power of Court to appoint Arbitrator or umpire.-(l) In any of the following cases.- (a) where an arbitration agreement provides that the reference shall be to one or more Arbitrators to be appointed by consent of the parties, and all the parties do not, after differences have arisen, concur in the appointment or appointments; or (b) if any appointed Arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied and the parties or the Arbitrators, as the case may be, do not supply the vacancy; or (c) where the parties or the Arbitrators are required to appoint an umpire and do not appoint him, any party may serve the other parties or the Arbitrators, as the case may be, with a written notice to concur in the appointment or appointments or in supplying the vacancy. (2) If the appointment is not made within fifteen clear days after service of the said notice, the Court may, on the application of the party who gave the notice and after giving the other parties’ an opportunity of being heard, appoint an Arbitrator or Arbitrators or umpire, as the case may be, who shall have like power to act in the reference and to make an award as if he or they had been appointed by consent of all parties.” 32. The learned Senior Counsel emphasised the word, ‘the party’ in Section 8(2) of the said Act and submitted that, as such, it was the petitioner-Company M/s. Gobins India Engineering Private Limited, should have made such an application. We notice the fact that the Arbitration Agreement between the parties in the present case refers not to the repealed Arbitration Act, 1940, but the Arbitration and Conciliation Act, 1996. Corresponding section to the Section 8 of the Act of 1940 in the Act of 1996 is Section 11. We notice the fact that the Arbitration Agreement between the parties in the present case refers not to the repealed Arbitration Act, 1940, but the Arbitration and Conciliation Act, 1996. Corresponding section to the Section 8 of the Act of 1940 in the Act of 1996 is Section 11. As already reproduced above, Section 11(5) of the Act mentions that, where the party fails to agree on the appointment of a Sole Arbitrator, the appointment shall be made upon a request of a party, by the Supreme Court or as the case may be, the High Court. As such, it is clear that it is not necessarily the party who has suggested the name of an Arbitrator alone, to go to the Chief Justice under Section 11 (5) seeking appointment of the Arbitrator, on the contrary. It is a party, which means either of the party to the dispute can make an application to the Chief Justice. Therefore, the second argument of the learned Counsel for the appellant that it was incumbent upon the petitioner-Gob ins Company and it alone should have approached the Chief Justice, is not acceptable. 33. After clarifying the above aspect as to who has to approach the Court in case of necessity, now to proceed further on the main question regarding the mandatory application for approaching the Court under Section 11(5) of the Act is concerned, some more rulings of the High Courts relied on by the learned Counsel for the respondent herein (petitioner-Company) and of those, which has come to our notice also requires to be considered. 34. P.C. Markanda, in his book law relating to Arbitration and Conciliation, 6th Edition, Reprint 2007, Wadhwa and Company, Nagpur Publication, at page 299, after relying upon the judgment in Precision Engineering v Delhi Jal Board, 2003(1) Arb. L.R. 606 (Del.), was pleased to observe as below: “If an Arbitrator has already been appointed by the opposite party and the petitioner files an application under this section, without disclosing the factum of an Arbitrator already being in position, and the Court makes the appointment, the Court can recall its order and cancel its earlier order. L.R. 606 (Del.), was pleased to observe as below: “If an Arbitrator has already been appointed by the opposite party and the petitioner files an application under this section, without disclosing the factum of an Arbitrator already being in position, and the Court makes the appointment, the Court can recall its order and cancel its earlier order. In addition, if the petitioner chooses to appear before the Arbitrator, appointed by the opposite party, without any reservation or protest, he shall be deemed to have waived his right under Section 4 of the Act to object to the appointment of the earlier Arbitrator.” 35. In Narayan Prasad Lohia v Nikunj Kumar Lohia and Others, 2012 (2) SLT 144 : AIR 2002 SC 1139 , our Hon’ble Apex Court, while discussing the scope of Sections 4, 10, 16 and 34 of the Act, was pleased to hold that the objection as to composition of Arbitral Tribunal not taken before Arbitral Tribunal itself, or within time prescribed under Section 16(2), there will be a deemed waiver of objection under Section 4, the award so passed by Arbitral Tribunal cannot be set aside under Section 34(2)(a)(v) because composition of Tribunal was in accordance with the agreement between the parties. 36. The second judgment relied upon by the learned Counsel for the appellant herein is of M/s. Gas Authority of India Limited and Another v M/s. Keti Construction (India) Limited and Others, 2007 (5) SCJ 793 : 2007 (5) SLT 382 : AIR 2007 SC 378 , wherein with respect to Sections 11 and 34 of the Act, the Hon’ble Apex Court was pleased to observe in paragraphs 18, 19 and 20 as below: “18. The whole object and scheme of the Act is to secure an expeditious resolution of disputes. Therefore, where a party raises a plea that the Arbitral Tribunal has not been properly constituted or has no jurisdiction, it must do so at the threshold before the Arbitral Tribunal so that remedial measures may be immediately taken and time and expense involved in hearing of the matter before’ the Arbitral Tribunal which may ultimately be found to be either not properly constituted or lacking in jurisdiction, in proceedings for setting aside the award, may be avoided. The commentary on Model Law clearly illustrates the aforesaid legal position. 19. The commentary on Model Law clearly illustrates the aforesaid legal position. 19. Where a party has received notice and he does not raise a plea of lack of jurisdiction before the Arbitral Tribunal, he must make out a strong case why he did not do so if he chooses to move a petition for setting aside the award under Section 34(2)(a)(v) of the Act on the ground that the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties. If plea of jurisdiction is not taken before the Arbitrator as provided in Section 16 of the Act, such a plea cannot be permitted to be raised in proceedings under Section 34 of the Act for setting aside the award, unless good reasons are shown. 20. Though respondent 1 had ample opportunity to appear before Justice N.N. Goswami (Retd.) and raise a plea of jurisdiction to the effect that he had been wrongly appointed as Arbitrator by appellant 1, yet, it chose not to do so. This feature of the case weighs heavily against respondent 1. The learned Single Judge has taken this fact as an additional ground for rejecting the petition filed by respondent 1 under Section 34 of the Act and we are in agreement with the said view.” With the above observation, the Hon’ble Supreme Court was pleased to allow the appeal with cost throughout and the judgment and order of the Division Bench of the High Court was set aside. Further, the order dated 20-10- 2003 of the learned Single Judge, dismissing the petition under Section 34 of the Act was confirmed. 37. The third case relied upon by the appellant herein is Bharat Sanchar Nigam Limited and Another v Motorola India Private Limited), AIR 2009 SC 357 , wherein our Hon’ble Apex Court was pleased to observe that the party, who knows that a requirement under Arbitration Agreement has not been complied with and still proceeds with the Arbitration without raising an objection as soon as possible, waives his right to object. 38. Another case relied upon by the learned Counsel for the appellant herein is, Bharat Petroleum Corporation Limited v Great Eastern Shipping Company Limited’, AIR 2008 SC 357 (1). 38. Another case relied upon by the learned Counsel for the appellant herein is, Bharat Petroleum Corporation Limited v Great Eastern Shipping Company Limited’, AIR 2008 SC 357 (1). In the said case, regarding the question of existence of an Arbitration Agreement between the parties under Section 7 of the Act, the Hon’ble Supreme Court imparted principles of agreement in sub silentio initiated under Section 8 of the Contract Act, 1872 and was pleased to observe that offerree’s silence in certain circumstances coupled with his conduct takes form of positive act, which may constitute acceptance and agreement in sub silentio. Therefore, terms of contract between the parties can be proved not only by their words, but also by their conduct. 39. In the light of the above decisions, it can be inferred that the respondent-Company M/s. Basai Steels Private Limited, after receiving intimation regarding appointment of the Arbitrator, by respondent 2, appeared before the said Arbitrator. Though learned Senior Counsel for the said respondent-Company (appellant herein) in his argument submitted that the General Manager of the said Company, who himself is an Advocate, appeared before the Arbitrator, but he did not participate in the proceeding, but only was watching the proceedings, the same cannot be accepted. 40. The lower Court records placed before us, which also includes in its, the Arbitration record, shows the proceedings recorded by the Arbitrator. Those documents have also been filed by the respondent herein along with its typed copies. One such document is a letter dated 30-5-2013 written by one Sri Manjunath Hegde, Advocate from Ballari to the second respondent-Arbitrator. The said letter reads as below: MANJUNATH HEGDE BELLARY BAR ASSOCIATION, District Court Compound, Bellary, Karnataka Date 30-5-2013 To, Sri S. Dhassaiya, Advocate, High Court, Madras Office: No. 228, 1st Floor, N.s.C. Bose Road, Chennai - 600 001 Sir, In pursuance of your letter dated 7-4-2013 issued in arbitral proceeding vide No. GIE BSPL/101/2010-11, dated 8-7-2010 against to my client M/s. Basai Steels (Private) Limited, Door No. 59, D/I, Parvathinagar, 3rd Main Road, Bellary. In accordance with your letter myself and my client were appeared before “pola Paradise Hotel, Bellary” on 10-5-2013 at 10.15 hrs. On the same day your goodselves was absent and myself and my client were waiting about your arrival since the day. Thanking you, Yours faithfully, Sd/- Advocate, Bellary. In accordance with your letter myself and my client were appeared before “pola Paradise Hotel, Bellary” on 10-5-2013 at 10.15 hrs. On the same day your goodselves was absent and myself and my client were waiting about your arrival since the day. Thanking you, Yours faithfully, Sd/- Advocate, Bellary. The above letter shows that in response to the notice of hearing sent by the Arbitrator (2nd respondent), the appellant herein responded and appeared before it. The further proceeding records of the Arbitrator shows that, on the dated 20-7-2013, the appellant herein M/s. Basai Company appeared before the Arbitrator. The said document of the Arbitration Proceeding is reproduced hereinbelow: S. DHASSAIYA Arbitrator. Office: 228, 1st Floor, NSC Bose Road, Chennai - 600 001. PROCEEDINGS BEFORE THE SOLE ARBITRATOR S. DHASSAIYA HELD ON 20-7-2013 BETWEEN 10.30 AND 11.30 A.M. AT BELLARY, PO LA PARADISE HOTEL A.C.P. (GOBINS) No. 1 of 2013 In the matter of Arbitration and Conciliation Act, 1996 And In the matter of disputes and differences between M/s. Gobins India Engineering Private Limited and M/s. Basai Steels Private Limited. M/s. Gobins India Engineering Private Limited, Gobins, 92, MIG II Colony, Netaji Nagar, Near Vasavi School, Bellary - 583104. ... Claimant v M/s. Basai Steels Private Limited, Door No. 59, D/1, Parvathi Nagar, 3rd Main Road, Bellary - 583101. ... Respondent The claimant appeared at 10.30 a.m. along with his authorised person Mr. M. Apparao, Advocate, he submitted the claim petition. The authorised person for the respondent-M/s. Basai Steels Private Limited one Mr. Hegde, Advocate rang up me at 10.04 hrs. and sought for half an hour time. I permitted, but till 11.10 a.m. he did not appeared. I called the respondent, no representation, neither the party nor the authorised person appeared, hence respondent called absent and set ex parte. Hence the claimant side, and the matter is adjourned and posted for ex parte evidence. But at the time the G.M. of the respondent-company along with his authorised person Mr. M. Hegde appeared, and a copy of the petition was given to the authorised person Mr. M. Hegde, Advocate. He took time for filling counter/reply. Hence today’s proceedings over. The next hearing date will be communicate separately. Possible on 20-8-2013. Sd/- (M. Apparao) Sd/- (20-7-2013) Authorised person for claimant S. DHASSAIYA (Sole Arbirator) Sd/- Binu S. Gopinath Sd/- (M. Hegde) Authorised person for respondent Sd/- (Srinivas Rao, G.M.) 41. M. Hegde, Advocate. He took time for filling counter/reply. Hence today’s proceedings over. The next hearing date will be communicate separately. Possible on 20-8-2013. Sd/- (M. Apparao) Sd/- (20-7-2013) Authorised person for claimant S. DHASSAIYA (Sole Arbirator) Sd/- Binu S. Gopinath Sd/- (M. Hegde) Authorised person for respondent Sd/- (Srinivas Rao, G.M.) 41. From the above record, it is clear that for the second time before the Arbitrator, the present appellant-Company through its General Manager appeared accompanied by its Advocate. It was not only a mere appearance, but also it received a “Copy of the arbitration petition and prayed for time to file its counter/reply. This fact makes it very clear that, even after the appellant herein noticing that the appointment of Sole Arbitrator by the present 1st respondent (petitioner-Company) unilaterally, still it appeared before the Arbitrator. The said company did not merely watched the proceedings, but it collected the arbitration petition copy and prayed for time to file its objection and was succeeded in getting time in filing its statement of objection. The said act of the present appellant (respondent-Company before the Arbitrator) cannot be called a mere watching the proceedings on the other hand, it is a participation by the said Company in the Arbitral proceedings. Therefore, the said respondent-M/s. Basai Steels Private Limited, having knowledge of the fact that the petitioner-Company has not followed the requirement under Section 11 of the Act, in seeking appointment of the Sole Arbitrator by the Chief Justice still derogated the same by participating in the proceeding before the Arbitrator, which according to it, was unilaterally appointed by the petitioner-Company. As such, by its conduct and participation in the proceeding and also not challenging the composition of the Arbitral Tribunal, either by filing its defence before the Arbitrator with such an objection or by raising such a contention before the lower Court in its Arbitration Application (Suit) No. 6 of 2014, thus has waived its right to object and as such, now it cannot say that the entire Arbitral proceedings and the award passed by the Arbitral Tribunal is void ab initio, as such it is a nullity. 42. 42. Therefore, in this background and in the light of the unique facts and circumstances of the case, we answer the second important question framed in this matter in the affirmative holding that the requirement of approaching the High Court for appointment of the Arbitrator under Section 11 of the Act can be waived by the party in view of Section 4 of the Act, since not approaching the High Court has not proved to be fatal to the case and in the light of peculiar facts and circumstances of the case. 43. In the light of our answer to the important questions of law framed by us, the only contention and the main contention of the present appellant herein that the composition of the Arbitral Tribunal by the so-called unilateral appointment of the Arbitrator by the present 1st respondent-Company, the entire proceeding would become a nullity, is not acceptable. 44. Therefore, on the sole ground canvassed by the appellant, MFA No. 101307 of 2015 filed by M/s. Basai Steels Private Limited, does not deserve to be allowed. 45. The respondent I-M/s. Gobins India Engineering Private Limited, has filed its cross-objection in MFA Crob. No. 100134 of 2015. In the cross-objection, the only contention of the Cross-objector (petitioner-Company) is that, the Court below has mistook that a sum of Rs. 46,00,000/- paid was not deducted by the Arbitrator while passing the award. As such, it erroneously came to a conclusion that the respondent-M/s. Basai Company was liable to pay the award amount of Rs. 97,80,308/-. It is its another contention that reduction in the rate of interest from 24% p.a. to 18% p.a. was also not called for. 46. The present appellant, who is the respondent in the cross-objection, has not chosen to file its statement of objection or reply to the cross-objection. As such, the contention of the Cross-objector has remained uncontroverted from the respondent-Company. Moreover, even in his argument also, learned Senior Counsel for the present appellant did not address his argument on the Cross-objection, whereas, the learned Counsel for the Cross-objector (1st respondent in the appeal) in his argument, relied upon two decisions of the Higher Courts and submitted that the cross-objection deserves to be allowed. 47. A perusal of the award go to show that the principal amount claimed was Rs. 47. A perusal of the award go to show that the principal amount claimed was Rs. 97,88,307/- and accepting the calculation of the interest at the rate of 24% upon it, which was the rate of interest agreed between the parties and which amount came to of Rs. 50,85,760/-, the Arbitral Tribunal proceed to pass the award for a total sum of Rs. 1,48,66,068/- (Rs. 97,80,308 + 50,85,760). 48. It appears, the Court below wrongly took the awarded amount as of Rs. 1,43,80,308/- and further took that the sum of Rs. 46,00,000/- was paid after the award and has arrived at a figure of Rs. 97,80,308/- and ordered for its payment. A perusal of the Arbitration award and documents produced therein go to show that the said amount of Rs. 46,00,000/- was already given as deduction prior to passing of the Arbitral Award, as such, giving deduction once again for the said amount was not called for. 49. In M/s. Hyder Consulting (UK) Limited v Governor, State of Orissa through Chief Engineer’, AIR 2015 SC 856 , the Hon’ble Apex Court while dealing with Section 31(7) of the Arbitration and Conciliation Act, 1996, was pleased to observe in the concurrent judgment of Hon’ble Justice A.M. Sapre, as below: “Once the interest is ‘included in the sum’ for which the award is made, the original sum and the interest component cannot be segregated and be seen independent of each other. The interest component then loses its character of an ‘interest’ and takes the colour of ‘sum’ for which the award is made. Therefore, the amount awarded under Section 31(7)(a) of the Act, whether with interest or without interest, constitutes a ‘sum’ for which the award is made.” In the very same judgment at para 59, the Hon’ble Apex Court was further pleased to observe as below: “59 ……………… once the interest amount is within the physical and actual possession of the party so entitled to it, only then could the interest amount be said to have merged with the principal amount. Therefore, in the present scenario, the appellants would not be entitled to claim post-award interest on the aggregate of the principal amount and interest pendente lite, since the said aggregate sum was not in the actual physical possession of the appellants herein. Therefore, in the present scenario, the appellants would not be entitled to claim post-award interest on the aggregate of the principal amount and interest pendente lite, since the said aggregate sum was not in the actual physical possession of the appellants herein. Further, I take note that sub-section (7) of Section 31 of the Act, 1996, neither makes reference to compounding of interest, nor to awarding interest on interest.” 50. From the above, it is clear that the sum would mean a sum arrived at after merging of interest with principal, which means the sum would be inclusive of interest pendente lite. 51. In Bhagawati Oxygen Limited v Hindustan Copper Limited (2005 (3) SLT 599 : 2005 (3) SCJ 502), AIR 2005 SC 2071 , the Hon’ble Apex Court was pleased to hold that Section 34 of the Civil Procedure Code, 1908 has no application to Arbitration proceeding. However, it was within power of Arbitrator to award interest for all the three stages, i.e., during pre-reference, pendente lite and post award period. In the instant case, the Arbitral Tribunal had awarded the interest at the rate of 24% p.a. However, the Court below reduced the said rate of interest to 18% p.a. Except stating that the said rate of 24% p.a. is on the higher side, the Court below has not attributed any reasons for it reducing the rate of interest. Admittedly, the transaction between the parties is a commercial transaction. The Arbitral Tribunal in its award has made a specific observation that the respondent has categorically agreed that, if the bills were not settled within the stipulated period, the petitioner/claimant was entitled to collect interest at the rate of 24% p.a., since the transaction is commercial in nature. 52. Admittedly, the respondent before the Arbitral Tribunal, though entered appearance, neither filed its defence, nor produced any document showing the agreed rate of interest. As such, the finding of the Arbitral Tribunal regarding the rate of interest is remained uncontroverted. Moreover, even in this appeal before us also, the learned Senior Counsel for the appellant did not canvas his arguments on the point of rate of interest awarded by the Tribunal. As such, the awarded amount shown at of Rs. 97,80,308/-, in the judgment of the Court below requires to be modified and to be fixed at of Rs. 1,48,66,068/-. Moreover, even in this appeal before us also, the learned Senior Counsel for the appellant did not canvas his arguments on the point of rate of interest awarded by the Tribunal. As such, the awarded amount shown at of Rs. 97,80,308/-, in the judgment of the Court below requires to be modified and to be fixed at of Rs. 1,48,66,068/-. Similarly, the rate of interest reduced by the Court below in the impugned order from 24% p.a. to 18% p.a. also requires to be modified and the rate of interest is to be reinstated at 24% as awarded by the Arbitral Tribunal. As such, MFA Crob. No. 100134 of 2015 is required to be allowed. Per Dr. Vineet Kothari, J. (Concurring): 53. While concurring with the views expressed by my brother Justice Sastry, I may add a small concurring note. 54. The Arbitration and Conciliation Act, 1996, based on UNCITRAL Model Law is a marked departure from the earlier Arbitration Act, 1940 and the very purpose of this new enactment as amended in last recently by Amendment Act of 2015 (Act No. 3 of 2016) is to expedite the dispute resolution through this important change of Alternative Disputes Resolution System and it was brought about to curtail the intervention of the Courts to the minimum, while giving priority and precedence to the agreement between the parties to the contract to resolve their inter se disputes through the mechanism of arbitration on all procedural matters for finalising such arbitration process. 55. The said marked distinction between the new Arbitration Act, 1996 from the erstwhile Act of 1940 is reflected in almost all the provisions of the new Act and the provisions of the new Act which concerns the controversy before us in the present case is in Section 11 of the new Act. 56. While in parallel Section 8 of the old 1940 Act, “the party who gvzes notice for appointment of an Arbitrator” was required to approach the Court for appointment of Arbitrator, if the other party did not agree, in a significant departure, in Section 11 of the new Act of 1996, the words “the party” was substituted by the words “a party”. This change for obvious and avowed purpose was to let the party who does not agree with the appointment of the Sole Arbitrator and parties cannot agree on the name suggested by the other party is required to approach the High Court or the Supreme Court, as the case may be, for the appointment of an Arbitrator. 57. The mandate under Section 11(5) of the Act is on the Court to appoint Arbitrator upon a request of either of the parties but, compulsion is not on the particular party to the contract to seek such appointment of Arbitrator. The words used in Section 11(4) of the Act, “upon request of a party”, by the Supreme Court, or as the case may be, the High Court, such appointment shall be made, clearly shows that a party to the contract who is unable to agree to the appointment of an Arbitrator can approach the Court for appointment of an Arbitrator. The limited role of the Court is to appoint Arbitrator upon such request made, while leaving it absolutely free for the parties themselves at an earlier stage to finalise such appointment. Under the old Act, it was clear who is to approach the Court for appointment (the party who gave the notice for appointment), whereas under the new Act, it is left free for any of them to seek such appointment in case they cannot agree on the given name beforehand. 58. It would be incongruous and unreasonable to bind down the party who suggests a name or appoints Sole Arbitrator from his side to still seek an appointment through Court Process under Section 11(5) of the Act, even though the other party remains silent or does not object to such appointment. The language of Section 11(5) of the Act does not mandate him to do so. On the contrary, the party who may not agree to such name or intends to object to it should do so and seek appointment of Arbitrator through Court process by filing application under Section 11(5) of the Act. That appears to be a more purposeful interpretation of the new provision of Section 11 under 1996 Act. On the contrary, the party who may not agree to such name or intends to object to it should do so and seek appointment of Arbitrator through Court process by filing application under Section 11(5) of the Act. That appears to be a more purposeful interpretation of the new provision of Section 11 under 1996 Act. The party appointing a Sole Arbitrator as is permitted under Section 10 of the Act, unless otherwise indicated in the Agreement between the parties is not expected to wait endlessly for the other party to either object to such appointment or approach the Court under Section 11 of the Act for appointment of Arbitrator. If within a reasonable period, the other party neither raises any objection to the appointment or suggested name of an Arbitrator, such other party should be deemed to have waived or given up his objections with regard to the same, like in the present case. His submitting to the jurisdiction of the Arbitrator appointed by another party and participation in such arbitral proceedings can further establish his acquiescence in the matter or waiver of such objections, as it has happened in the present case. Such an objector, having not objected and having participated in the arbitration proceedings although to limited extent and then allowing an ex parte Award against him by not further participating, cannot be permitted to raise the bogie of illegal appointment of Arbitrator or later on, calling it to be a void ab initio Award. Such a plea is contrary to the Scheme of the new Act in the process of appointment and composition of the Arbitral Tribunal under Section 16 of the Act of 1996, which stipulates that such objection should be raised at the initial stage itself. 59. Section 10 of the new Act also clearly provides that the Arbitral Tribunal shall consist of a Sole Arbitrator, unless the parties agree to any other number of Arbitrators which shall not be an even number, obviously to avoid a tied up award. 60. 59. Section 10 of the new Act also clearly provides that the Arbitral Tribunal shall consist of a Sole Arbitrator, unless the parties agree to any other number of Arbitrators which shall not be an even number, obviously to avoid a tied up award. 60. In the present case, the arbitration Clause 29 of the contract clearly provided for application of new Act of 1996 and therefore, the reliance placed upon by the learned Counsel for the petitioner on the judgment of the Hon’ble Supreme Court in the case of Dharma Prathishthanam v M/s. Madhok Construction Private Limited, (2005)9 SCC 686 dealing with the provisions of old 1940 Act, was rather misplaced. The said decision is not applicable under the new Act of 1996 in view of the significant change of Scheme of appointment of Arbitrator through the Court process under the new Act of 1996. 61. The contesting appellants before us Basai Steels and Power Private Limited, the Awarder of the contract in favour of the contractor, Gobins Engineering Private Limited, not only did not raise any objection about the appointment of Sole Arbitrator by the respondent, but acquiesced to his appointment by participating in the arbitration proceedings twice over and while asking for time to file the written statement/objections but, thereafter chose, for the reasons best known to it, to abstain and remain ex parte in such arbitration proceedings. This conduct of the appellant clearly amounted to waiver of its rights in terms of Section 4 of the new Act of 1996. 62. After the Award being passed by the Sole Arbitrator against it and dismissal of its application in Section 34 of the Act for setting aside of the Award, which lies in a narrow compass and on limited grounds specified in Section 34 itself, for the first time, the said party chose to raise this objection of jurisdiction of Arbitrator before us in the present appeals, which has no merit at all. 63. The said appellant not only should be deemed to have waived and given up its objection, but it is just a futile effort on its part to oppose the Arbitral Award upheld at the hands of the Court below while rejecting its application under Section 34 of the Act, by raising a wholly unsustainable bogie of lack of jurisdiction of Arbitrator at this stage and labeling the Arbitral Award as void ab initio. 64. A comprehensive review of the relevant case-laws undertaken by my brother Judge, have rightly been deployed to repel such a contention on the part of the appellant and questions of law framed in the said matter have been rightly answered against the appellant and in favour of the respondent-contractor. The Award as modified deserves to be executed immediately. 65. In view of the above reasoning, we proceed to pass the following order: ORDER MFA No. 101307 of 2015 is dismissed. MFA Crob. No. 100134 of 2015 is allowed. The judgment and decree passed by the Court of Principal District Judge, at Ballari in Arbitration Application (Suit) No. 6 of 2014, dated 5-1-2015, is modified to the effect that the 1st respondent-M/so Basai Steels Private Limited, is held liable to pay the award amount of Rs. 1,48,66,068/- together with interest at the rate of 24% p.a. from January 2012 till its realisation, to the Cross-objector M/s. Gobins India Engineering Private Limited. There is no order as to costs.