ORDER : The issue arising in this case is whether substitution of an Arbitrator has to be made on an application under Section 11(4)(a) of the Arbitration and Conciliation Act, 1996 (“the Act” for short) just because the Arbitrator to be substituted was appointed by this Court under Section 11(6) of the Act, at a time when the respondent failed to exercise their right to appoint the Arbitrator in accordance with the agreement. 2. The applicant entered into Annx.B agreement with the respondent Municipality with respect to the processing and disposal of Municipal Solid Waste. Article 12 of Annex.B Agreement, provides for resolution of disputes between the parties. Clause 2(a) of Article 12 provides that any dispute which is not resolved amicably shall be finally settled by binding arbitration under the Arbitration Act. Article 12.2(a) reads as follows: “12.2 Arbitration (a) Procedure Subject to the provisions of Article 12.1, any dispute which is not resolved amicably shall be finally settled by binding arbitration under the Arbitration Act. The arbitration shall be by a panel of three arbitrators, one to be appointed by the Concessionaire, the other by KM and the third to be appointed by the two arbitrators appointed by the Parties. The party requiring arbitration shall appoint an arbitrator in writing, inform the other party about such appointment and call upon the other party to appoint its arbitrator. If within 15 days of receipt of such intimation, the other party fails to appoint its arbitrator, the party seeking appointment of arbitrator may take further steps in accordance with Arbitration Act.” 3. As the disputes between the petitioner and the respondents could not be resolved amicably, applicant had appointed Justice Padmanabhan Nair (Retd) as their Arbitrator in accordance with the provisions contained in Article 12.2(a) of Annexure B agreement and sent Annex.R notice to the respondent Municipality requesting to appoint their Arbitrator in order to refer the dispute for arbitration. Thereupon the respondent Municipality issued Annex.S reply notice raising objections. The applicant thereupon approached this Court filing AR No.24 of 2017 for appointment of an Arbitrator and this Court has appointed Sri. P.L. Norbert, Retired District Judge as the Arbitrator of the respondent, as per Annex.T order. Thereafter the Arbitral Tribunal started sitting with Justice K. Padmananbhan Nair, Retired Judge of this Court, who was appointed by the applicant, with Retired District Judge Sri. P.L. Norbert, Retired District Judge as the Arbitrator of the respondent, as per Annex.T order. Thereafter the Arbitral Tribunal started sitting with Justice K. Padmananbhan Nair, Retired Judge of this Court, who was appointed by the applicant, with Retired District Judge Sri. P.L. Norbert, appointed by this Court and both of them appointed Sri. George Oomen as third Arbitrator. However Justice Sri. K. Padmananbhan Nair, resigned from the Arbitral Tribunal and in his place Justice T.V. Ramakrishnan, Retired Judge of this Court was appointed. Subsequently Sri. P.L. Norbert also resigned as per Annex.Z letter dated 06.09.2018. The respondent Municipality thereupon by Annex.ZA letter dated 06.10.2018 informed the applicant that they have nominated Shri. G. Unnikrishnan, Advocate of this Court as Arbitrator in the place of Sri. P.L. Norbert. 4. This application is filed at this stage requesting for appointing a substitute for Sri. P.L. Norbert as Arbitrator for the respondent. According to the applicant, respondent Municipality ceased to have any authority to nominate an Arbitrator once they failed to exercise their authority to appoint Arbitrator originally, based on which the applicant had approached this Court and this Court had appointed their Arbitrator. 5. The learned counsel for the petitioner relying on the judgment in Dakshin Shelters Private Limited vs. Geeta S. Hohari, (2012) 5 SCC 152 argued that nomination made by respondents as per Annexure E is without any authority. 6. Respondents have entered appearance and the learned Counsel appearing for the respondents pointed out that once a substitute Arbitrator is required to be appointed, the respondent has the authority to make appointment of the Arbitrator in accordance with the agreement and that it was not necessary for the applicant to approach this Court and to get the Arbitrator appointed, invoking section 11(4) of the Act. Relying on the judgment in Yashwith Constructions (P) Ltd vs. Simplex Concrete Piles India Ltd. And another, (2006) 6 SCC 204 and National Highways Authority of India and another vs. Bumihiway DDB Ltd. (JV) and others, (2006) 10 SCC 763 it was argued that substitution of Arbitrator, has to be made in accordance with the provisions in the agreement. 7. Having heard the contentions on both sides, it is necessary to have a look at Section 15 of the Act, which read as follows:- “15. 7. Having heard the contentions on both sides, it is necessary to have a look at Section 15 of the Act, which read as follows:- “15. Termination of mandate and substitution of arbitrator.- (1) In addition to the circumstances referred to in Section 13 or Section 14, the mandate of an arbitrator shall terminate- (a) where he withdraws from office for any reason; or (b) by or pursuant to agreement of the parties. (2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. (3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal. (4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal.” 8. Therefore as per subsection 2 of Section 15 of the Act, the substitute Arbitrator is to be appointed in accordance with the rules that were applicable to the appointment of the arbitrator being replaced. The 'rules applicable' occurring in Section 15(2) of the Act is interpreted by the apex court in a series of judgments. 9. In the judgment in Dakshin Shelters Private Limited, relied on by the learned Counsel for the applicant, the issue considered by the apex court was not one relating to substitution. It was a case where the application was made under Section 11(4) when the other party did not appoint their Arbitrator as per the agreement saying that the agreement was cancelled. Though the learned Counsel for the petitioner relied on paragraph 16 of the judgment where the dictum laid down in Union of India vs. Bharat Battery Mfg. Co. (P) Ltd., (2007) 7 SCC 684 , was reiterated, those are cases in which the opposite party did not appoint Arbitrators even after receipt of notice from the other party and they asserted their right after filing application under Section 11(4)(a) of the Act. Co. (P) Ltd., (2007) 7 SCC 684 , was reiterated, those are cases in which the opposite party did not appoint Arbitrators even after receipt of notice from the other party and they asserted their right after filing application under Section 11(4)(a) of the Act. In such circumstances, the apex court reiterated the dicta that once a party files an application under section 11(6) of the Act, the other party extinguishes its right to appoint an Arbitrator in terms of the clause of the agreement and upheld the appointments made under Section 11(6) of the Act. The issue relating to appointment of the substitute Arbitrator governed by sub-section 2 of Section 15 of the Act did not arise in those cases. 10. On the other hand in the judgment in Yashwith Constructions (P) Ltd's case (supra) relied on by the learned Counsel for the respondent, the Supreme Court was dealing with a case where substitution was required. In that case the appointment of original Arbitrator was made by the Managing Director of the respondent as per the provisions in the agreement. When that Arbitrator resigned, the Managing Director appointed another Arbitrator, as per the agreement. At that stage the petitioner therein filed an application under Section 11(5) of the Act in the High Court for appointing a substitute Arbitrator. The application was rejected seeing that the Managing Director had already made the appointment of substitute, in accordance with the agreement. The apex court while upholding the appointment found that even in the absence of a specific provision in the agreement authorising the Managing Director to appoint a substitute, such omissions are made up by the provisions contained in Section 15(2) of the Act. It was held that the term “rules” in Section 15(2) obviously referred to the provision for appointment contained in the arbitration agreement or any rules of any institution under which the disputes were referred to arbitration and that it is not confined to an appointment under any statutory rule or rule framed under the Act or under the scheme but only that it must be according to the original agreement or provision applicable to the appointment of the Arbitrator at the initial stage. 11. 11. In the judgment in National Highways Authority of India and another vs. Bumihiway DDB Ltd. (JV) and others, (2006) 10 SCC 763 there was no consensus in the appointment of the presiding arbitrator who was to be appointed by the two arbitrators appointed by either parties. As per the agreement, in the event of failure to reach upon a consensus within a period of 30 days, the presiding arbitrator shall be appointed by the President, Indian Roads Congress. One of the parties approached the High Court and the presiding arbitrator was appointed under Section 11(6) of the Act. That Arbitrator resigned. Again an application was filed under Section 11 and a substitute Arbitrator was appointed. In paragraph 44, the apex court, held as follows: “44. As rightly pointed out by the appellants, the High Court failed to appreciate that in accordance with Section 15(2) of the Act on the termination of the mandate of the presiding arbitrator, the two nominated arbitrators were first required to reach a consensus and on their failure to arrive at a consensus only was Respondent 2 authorised to make the appointment. Unless Respondent 2 failed to exercise its jurisdiction, the High Court could not assume jurisdiction under Section 11(6) of the Act. Respondent 1 has wrongly invoked the jurisdiction of this Court (sic the High Court) without first following the procedure agreed to between the parties. Thus no cause of action had arisen in the facts of the case to seek the appointment from the High Court under Section 11(6) of the Act and thus the said petition was premature. The High Court is also not correct in relying on the contention of Respondent 1 that in case one of the arbitrators is a retired Chief Justice, the presiding arbitrator should be at least a retired Chief Justice or a retired Judge of a High Court with considerable experience. xxxxxxx The parties have entered into a contract after fully understanding the import of the terms so agreed to from which there cannot be any deviation. The courts have held that the parties are required to comply with the procedure of appointment as agreed to and the defaulting party cannot be allowed to take advantage of its own wrong.” 12. The very same issue came up for consideration in the judgment in Shailesh Dhairyawan vs. Mohan Balkrishna Lulla, (2016) 3 SCC 619 also. The courts have held that the parties are required to comply with the procedure of appointment as agreed to and the defaulting party cannot be allowed to take advantage of its own wrong.” 12. The very same issue came up for consideration in the judgment in Shailesh Dhairyawan vs. Mohan Balkrishna Lulla, (2016) 3 SCC 619 also. In that case the original appointment was made during the pendency of a suit, when the parties arrived at a settlement and agreed for appointing Justice Sujatha Manohar, Retd. Chief Justice to arbitrate the disputes. The issue arose on the resignation of that Arbitrator. After discussing the judgments in Yashwith's case, SBP and Co. v. Patel Engg. Ltd., (2009) 10 SCC 293 , etc, the apex court held that under Section 15(2), where the mandate of an Arbitrator terminates, a substitute Arbitrator shall be appointed. Discussing the various judgments where “the rules” occurring in Section 15(2) of the Act was interpreted, it was held that unless it is clear that an arbitration agreement on the facts of a particular case excludes either expressly or by necessary implication the substitution of an Arbitrator, whether named or otherwise, such a substitution must take place. It was reiterated that “the rules” that were applicable to the appointment of the Arbitrator in Section 15(2) of the Act, would include the arbitration clause or agreement itself, apart from any institutional rules or other rules which may apply. 13. At any rate none of these judgments referred above deals with a situation where an Arbitrator was appointed initially, invoking provisions contained in Section 11(6) of the Act, because of the refusal on the part of the respondent. What is provided in Section 15 of the Act is to appoint a substitute Arbitrator according to the rules that were applicable to the appointment of the Arbitrator being replaced. Going by the judgments of the Supreme Court it can be seen that either of the parties have the right to appoint. When the respondents have exercised their right as per Annex.ZA letter dated 06.10.2018, it cannot be said that appointment of the substitute Arbitrator is not in accordance with the Rules. As per the provisions contained in Annex.B agreement the respondent Municipality has the right to nominate their Arbitrator. Agreement does not prohibit appointment of substitute Arbitrator. When the respondents have exercised their right as per Annex.ZA letter dated 06.10.2018, it cannot be said that appointment of the substitute Arbitrator is not in accordance with the Rules. As per the provisions contained in Annex.B agreement the respondent Municipality has the right to nominate their Arbitrator. Agreement does not prohibit appointment of substitute Arbitrator. Therefore when the respondent has already appointed the substitute Arbitrator under Section 15(2) in accordance with clause 12(2)(a) of Annx.B agreement, it was unnecessary for the petitioner to approach this Court under Section 11(4) of the Act. Accordingly the Arbitration Request is rejected.