ORDER : By way of this application filed under Section 11 (6) of Arbitration and Conciliation Act, 1996 (for short “the Act”), the applicant seeks for appointment of sole Arbitrator to resolve the disputes and claim raised by the applicant in terms of Work Order cum Agreement dated 26.09.2012. 2. The brief facts of the case are that in or around June 2012 M/s.Balajee Infratech and Constructions Private Limited, one among the group of companies of the applicant, received an enquiry from the SEW Infrastructure Limited (for short ‘SEW’) seeking association with their NH-34, 4 Lane Road Project in the State of West Bengal as they being the contractors with National High Ways Authority of India. The project was for widening the 4 lane road of Krishnagar Baharampore Section of NH-34 from Km.115.000 to Km. 193.000 in the State of West Bengal under NHDP Phase-III on DBFOT (Annuity) Basis (Package No.NHDP-III/BOT/WB/02. After negotiations between M/s. Balajee Infratech and SEW, Letter of Intent (for short ‘LOI”) was issued in the name of M/s.Balajee Infratech & Constructions Private Limited. As per LOI conditions, M/s Balajee Infratech were to install 2 crushing plants of 200 TPH capacity. However, on demand by the SEW, M/s. Balajee Infratech & Constructions Private Limited later on decided to carry out the assigned works through its Group Company Galore Infratech Private Limited (for short ‘the Applicant’) and minutes of Meeting dated 05.09.2012 has been entered in this respect and hence the applicant filed a fresh offer against the tender on 07.09.2012 and the respondent issued fresh LOI to the applicant. Thereafter, Work Order bearing No.SKBHL/BOT-FIN/045, dated 26.09.2012, was re-issued to the applicant and the applicant immediately mobilized the required plant and machinery along with required manpower. The applicant also obtained lease agreements for quarry and arranged all other governmental permissions required to operate mining and crushing activities and the same has been communicated to the respondent. The schedule of installation of plants was also specified as to 1st plant by 10.09.2012 and 2nd plant by 31.10.2012 and on 06.11.2012 applicant commissioned their 2nd plant. The work order dated 26.09.2012 was for supply of over 11,00,000 M.T crushed stone with specific mention of make and model of equipment to be used and the project was to complete in 1 year from September, 2012. The work order dated 26.09.2012 was for supply of over 11,00,000 M.T crushed stone with specific mention of make and model of equipment to be used and the project was to complete in 1 year from September, 2012. The applicant started production by the middle of October 2012, however, the respondent failed to utilize the aggregates produced by the applicant causing crunch and the same ended up in slowing down the production in both the units as there were no movement of aggregates by the opposite party. The applicant has contacted the respondent and requested for removal of aggregates and the non-removal of aggregates badly affected the production in the Month of February and March, 2013. The respondent also failed to release the monthly bill amounts and the repeated demands for payment of outstanding amount was neglected by the respondent and hence to continue in the site keeping costly machineries and the huge manpower idle became impossible for the applicant. The respondent created the above situation and forced the applicant to close the contract and after due notice the applicant left the site on 24.07.2013 which resulted in huge financial burden to the applicant. Thereafter, the disputes arose between the parties and as such the applicant addressed a letter on 28.03.2014 demanding payment of amount Rs.12,21,64,880/- as compensation towards the damages suffered by them on account of the breach of the terms of contract by the respondent. The applicant again on 04.08.2014 and 01.10.2014 through its lawyer sent legal demand notice to pay a sum of Rs.3,48,33,252/- but the respondent failed to comply with the same. Thereafter, the applicant issued lawyer’s notice dated 01.12.2014 invoking arbitration clause appointing Mr.Prem Gidwani as Sole Arbitrator. The respondent objected to the same and in turn the Managing Director of SEW unilaterally appointed Sri V.V.Raghavan, a retired District & Sessions Judge as an arbitrator vide proceedings dated 29.12.2014. The applicant vide letter dated 14.01.2015 sought for the declaration under Section 12 (1) of the Act from the sole Arbitrator and the sole arbitrator by his letter dated 23.01.2015 made the declaration under Section 12 (1) of the Act. The applicant on serious apprehensions and having justifiable doubts about the independence and impartiality of the sole Arbitrator moved an application under Section 12 (3) of the Act before the sole Arbitrator. The applicant on serious apprehensions and having justifiable doubts about the independence and impartiality of the sole Arbitrator moved an application under Section 12 (3) of the Act before the sole Arbitrator. After hearing both the parties, the Arbitrator decided to recuse himself by order dated 05.09.2016, hence the present application. 3. Counter affidavit is filed by the respondent stating that the arbitration application is not maintainable and is liable to be dismissed as the appointing authority under the arbitration agreement between the parties has already appointed a sole arbitrator and the arbitral proceedings have commenced. It is also stated that as per Section 11 (6A) of the Act the Court must restrict itself to the examination of existence of an arbitration agreement. It is further stated that the respondent does not owe any money to the applicant and denied the claim of the applicant. The existence of arbitration clause in the Work Order - cum - Agreement, dated 26.09.2012 and place of arbitration at Hyderabad is not disputed. It is stated that as per Clause 9 of the Work Order - cum - Agreement, dated 26.09.2012, the Managing Director of SEW is the sole authority to appoint arbitrator. The independence or impartiality of the arbitrator has to be considered in appropriate proceedings under the Act. It is also stated that applicant cannot contest the appointment of arbitrator at a belated stage after submitting itself to the jurisdiction of the Arbitrator by filing claim petition and proceeding with the arbitration. It is further stated in the counter affidavit at paragraph 14, which reads as follows: “14. It is submitted that the present Arbitration Application is not maintainable as after the recusal of the Hon’ble Arbitrator the appointing authority under the Arbitration Act has appointed a new arbitrator, Sri Dasari Sambaiah vide letter dated 29.09.2016 addressed to the Applicant and the Respondent. It is submitted that within 30 days of the recusal order the appointing authority has appointed an arbitrator in accordance with the arbitration agreement between the Applicant and the Respondent. It is submitted that no time period is prescribed in the arbitration agreement for appointment of an arbitrator by Managing Director, SEW Infrastructure Limited and hence the appointment of an arbitrator within 30 days amounts to complying with the obligation under the arbitration agreement within a reasonable time period. It is submitted that no time period is prescribed in the arbitration agreement for appointment of an arbitrator by Managing Director, SEW Infrastructure Limited and hence the appointment of an arbitrator within 30 days amounts to complying with the obligation under the arbitration agreement within a reasonable time period. Moreover, the Respondent herein had written to the appointing authority on 17.09.2016 itself requesting him to appoint an arbitrator. A copy of the letter dated 17.09.2016 is field herewith as Ex.R.1 and a copy of the letter dated 29.09.2016 is filed herewith as Exhibit R2. It is also stated that the applicant is aware of appointment of the arbitrator as evident from the letter dated 03.10.2016 addressed to the appointing authority. 4. Heard Sri Ch.Srinivas Raju, learned counsel for the applicant and Sri Avinash Desai, learned counsel for the respondent. 5. Learned counsel for the applicant submits that the Managing Director of SEW cannot appoint any arbitrator being a party to the litigation by virtue of Section 12 (5) of the Arbitration Act 2015 which came into force from 23.10.2015 by virtue of Amendment Act 2015 and there cannot be independence and impartiality of the arbitrator when a party to the agreement appoints an arbitrator and that is the reason the Amendment Act of 2015 was brought into force. In support of his contentions, learned counsel for the applicant relied on Proddatur Cable Tv Digi Services vs. Siti Cable Network Limited, 2020 Online SCC Delhi 350, Bharat Broadband Network Ltd. v. United Telecoms Ltd., (2019) 5 SCC 755 and Trf Ltd vs Energo Engineering Projects Ltd., (2017) 8 SCC 377 . 6. Sri Avinash Desai, learned counsel for the respondent submits that the application is not maintainable as already arbitrator was appointed on 29.09.2016 after recusal of the earlier arbitrator on 29.08.2016 within a reasonable time even though no time is fixed for appointment of arbitrator. He also submits that the amendment brought in Section 12 by way of insertion of sub-Section (5) came into effect from 23.10.2015 and in the present case arbitration commenced by issuance of arbitral proceedings on 01.12.2014 under Section 21 of the Act 1996 which was received and replied by the respondent on 29.12.2014 which is prior to amendment Act 2015. He also submits that the amendment brought in Section 12 by way of insertion of sub-Section (5) came into effect from 23.10.2015 and in the present case arbitration commenced by issuance of arbitral proceedings on 01.12.2014 under Section 21 of the Act 1996 which was received and replied by the respondent on 29.12.2014 which is prior to amendment Act 2015. In all the decisions relied on by the learned counsel for the applicant, the arbitration proceedings commenced subsequent to Amendment Act 2015 which came into force on 23.10.2015 wherein arbitrators were appointed by the parties to the agreement, as such, the ratio laid down in the judgments supra has no application to the facts of the case. In support of his submissions, learned counsel for the respondent relied on the judgments of the Hon’ble Apex Court in Union of India vs. Parmar Construction, (2019) 15 SCC 682 and Perkins Eastman Architects DPC & Another vs. HSCC (India) Ltd., 2019 SCC online SC 1517. 7. In view of rival contentions, the issues that arise for consideration are: 1. ‘Whether the present application is maintainable under Section 11 (6) of the Act when already an arbitrator is appointed vide proceedings dated 29.09.2016 as per the work order Contract dated 26.09.2012? and 2. Whether the appointment of arbitrator vide proceedings dated 29.09.2016 is valid in view of the amendment to Section 12 by insertion of sub-Section (5) by amendment Act 2015, which came into force from 23.10.2015? 8. Since both the issues are interlinked with each other, they have been taken together. Admittedly, the facts of the case are that Work Order - cum - Agreement dated 26.09.2012 issued by the respondent contain arbitration Clause 9.0, which reads as under: “9.0. Settlement of Disputes: The Parties shall use their best efforts to settle amicably all disputes arising during the period of this Contract. If a settlement is not arrived at upon mutual discussion, all the disputes, differences, controversies or claims arising out of or relating to this Contract or any breach thereof shall be referred to the decision of the arbitrator appointed by the Managing Director of SEW Infrastructure Limited. The decision of the arbitrator shall be final and binding on both the parties. The provisions of arbitration and conciliation act, 1996 shall apply to the arbitration proceedings. The place of the arbitration shall be Hyderabad only. The decision of the arbitrator shall be final and binding on both the parties. The provisions of arbitration and conciliation act, 1996 shall apply to the arbitration proceedings. The place of the arbitration shall be Hyderabad only. The Arbitration proceedings shall be conducted in English language. Neither the obligation of the sub-Contractor (second party) to perform this contract nor the execution of the work shall stop during the course of the arbitration proceedings or as a result thereof unless the Employer (First party) has given any specific instructions for stoppage of the work. All the disputes, differences, controversies or claims arising out of or relating to this work order/Contract or the breach thereof shall be subject to the exclusive jurisdiction of Civil Courts of Hyderabad Only. 9. The above Clause 9.0 of Work Order - cum - Agreement, dated 26.09.2012 goes to show that arbitration clause extends between the parties and the applicant has invoked the arbitration clause by nominating their arbitrator vide notice dated 01.12.2014 and the same was also received and replied to by the respondent on 29.12.2014. The respondent also requested the appointing authority under Clause 9.0 of the Work Order-cum-Agreement dated 26.09.2012 for appointment of an arbitrator and the Managing Director of SEW appointed the arbitrator on 29.12.2014 and the arbitrator entered into reference and declaration was also sought by the applicant under Section 12 (1) of the Act which was completed by the arbitrator. Later on, the applicant moved an application before the Arbitrator under Section 12 (3) of the Act and the Arbitrator vide order dated 29.08.2016 in I.A.No.1 of 2016 and I.A.No.2 of 2016 held that petitions can be dismissed since the Amendment Act 2015 is prospective, but however, recused himself because of the doubt expressed by the applicant and the said order of recusal was received by the applicant on 05.09.2016. On recusal, the respondent on 17.09.2016 addressed a letter to the Managing Director, who is the appointing authority, for appointment of arbitrator in the place of earlier arbitrator and the Managing Director/appointing authority appointed another arbitrator on 29.09.2016 and the same was refused by the applicant on 03.10.2016 and the appointing authority also clarified the same in his letter dated 15.12.2016. The arbitrator appointed on 29.09.2016 issued notice to the parties on 15.10.2016 and 12.01.12017 and thereafter entered into reference. The arbitrator appointed on 29.09.2016 issued notice to the parties on 15.10.2016 and 12.01.12017 and thereafter entered into reference. All these facts go to show that the appointing authority has appointed the arbitrator after recusal of the earlier arbitrator. But, according to the learned counsel for the applicant, the appointing authority ceases to have any power to appoint any arbitrator being party to the agreement, after Amendment Act 2015 came into force on 23.10.2015. 10. In the decisions cited by the learned counsel for the applicant in Proddatur Cable Tv Digi Services (supra 1), Bharat Broadband Network Ltd.(supra 2) and Trf Ltd (supra 3), arbitration commenced i.e., notice invoking arbitration clause was issued subsequent to Amendment Act 2015 which came into force from 23.10.2015, as such, the same have no application to the case on hand inasmuch as in the instant case notice invoking arbitration clause was issued on 01.12.2014. 11. In Union of India vs. Parmar Construction (supra 4) the Hon’ble Apex Court considered similar issues whether the High Court was justified in invoking amended provision which has been introduced by Arbitration and Conciliation(Amendment Act), 2015 with effect from 23rd October,2015 and whether it was permissible for the High Court under Section 11(6) of the Arbitration and Conciliation Act, 1996(prior to the Amendment Act, 2015) to appoint third party or an independent Arbitrator when the parties have mutually agreed for the procedure vis-à-vis the authority to appoint the designated arbitrator. In the said Judgment the Hon’ble Apex Court at paragraphs 26 to 28, 38, 42 to 43, 44 and 47 held as under: “26. The conjoint reading of Section 21 read with Section 26 leaves no manner of doubt that the provisions of the Amendment Act, 2015 shall not apply to such of the arbitral proceedings which has commenced in terms of the provisions of Section 21 of the Principal Act unless the parties otherwise agree. The effect of Section 21 read with Section 26 of Amendment Act, 2015 has been examined by this Court in Aravali Power Company Private Limited Vs. Era Infra Engineering Limited (supra) and taking note of Section 26 of the Amendment Act, 2015 laid down the broad principles as under: “22. The principles which emerge from the decisions referred to above are: 22.1. In cases governed by 1996 Act as it stood before the Amendment Act came into force: 22.1.1. Era Infra Engineering Limited (supra) and taking note of Section 26 of the Amendment Act, 2015 laid down the broad principles as under: “22. The principles which emerge from the decisions referred to above are: 22.1. In cases governed by 1996 Act as it stood before the Amendment Act came into force: 22.1.1. The fact that the named arbitrator is an employee of one of the parties is not ipso facto a ground to raise a presumption of bias or partiality or lack of independence on his part. There can however be a justifiable apprehension about the independence or impartiality of an employee arbitrator, if such person was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate to the officer whose decision is the subject-matter of the dispute. 22.1.2. Unless the cause of action for invoking jurisdiction under Clauses (a), (b) or (c) of sub-section (6) of Section 11 of the 1996 Act arises, there is no question of the Chief Justice or his designate exercising power under sub-section (6) of Section 11. 22.1.3. The Chief Justice or his designate while exercising power under sub- section (6) of Section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause. 22.1.4. While exercising such power under sub-section (6) of Section 11, if circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else. 22.2. In cases governed by 1996 Act after the Amendment Act has come into force: If the arbitration clause finds foul with the amended provisions, the appointment of the arbitrator even if apparently in conformity with the arbitration clause in the agreement, would be illegal and thus the court would be within its powers to appoint such arbitrators as may be permissible.” which has been further considered in S.P. Singla Constructions Pvt. Ltd. Case (SCC p.495, para 16) “16. Considering the facts and circumstances of the present case, we are not inclined to go into the merits of this contention of the appellant nor examine the correctness or otherwise of the above view Union of India vs Parmar Construction Company on 29 March, 2019 Indian Kanoon - http://indiankanoon.org/doc/63871350/ 10 taken by the Delhi High Court in Ratna Infrastructure Projects case; suffice it to note that as per Section 26 of the Arbitration and Conciliation (Amendment) Act, 2015 the provisions of the Amended Act, 2015 shall not apply to the arbitral proceedings commenced in accordance with the provisions of Section 21 of the Principal Act before the commencement of the Amendment Act unless the parties otherwise agree. In the facts and circumstances of the present case, the proviso in clause (65) of the general conditions of the contract cannot be taken to be the agreement between the parties so as to apply the provisions of the amended Act. As per Section 26 of the Act, the provisions of the Amendment Act, 2015 shall apply in relation to arbitral proceedings commenced on or after the date of commencement of the Amendment Act, 2015(w.e.f. 23.10.2015). In the present case, arbitration proceedings commenced way back in 2013, much prior to coming into force of the amended Act and, therefore, provisions of the Amended Act cannot be invoked.” 27. We are also of the view that the Amendment Act, 2015 which came into force, i.e. on 23 rd October, 2015, shall not apply to the arbitral proceedings which has commenced in accordance with the provisions of Section 21 of the Principal Act, 1996 before the coming into force of Amendment Act, 2015, unless the parties otherwise agree. 28. In the instant case, the request was made and received by the appellants in the concerned appeal much before the Amendment Act, 2015 came into force. Whether the application was pending for appointment of an arbitrator or in the case of rejection because of no claim as in the instant case for appointment of an arbitrator including change/substitution of arbitrator, would not be of any legal effect for invoking the provisions of Amendment Act, 2015, in terms of Section 21 of the principal Act, 1996. Whether the application was pending for appointment of an arbitrator or in the case of rejection because of no claim as in the instant case for appointment of an arbitrator including change/substitution of arbitrator, would not be of any legal effect for invoking the provisions of Amendment Act, 2015, in terms of Section 21 of the principal Act, 1996. In our considered view, the applications/requests made by the respondent contractors deserves to be examined in accordance with the principal Act, 1996 without taking resort to the Amendment Act, 2015 which came into force from 23rd October, 2015. 38. The further submission made by the appellants that the High Court has committed error in appointing an independent arbitrator without resorting to the arbitrator which has been assigned to arbitrate the dispute as referred to under clause 64(3) of the contract. To examine the issue any further, it may be relevant to take note of three clauses in sub-section 6 of Section 11 of Act, 1996(pre-amended Act, 2015) which is as under:- “11. (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 Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.” 42. This Court has put emphasis to act on the agreed terms and to first resort to the procedure as prescribed and open for the parties to the agreement to settle differences/disputes arising under the terms of the contract through appointment of a designated arbitrator although the name in the arbitration agreement is not mandatory or must but emphasis should always be on the terms of the arbitration agreement to be adhered to or given effect as closely as possible. 43. The judgments in Datar Switchgears Ltd. case(supra); Punj Lloyd case(supra) and Union of India Vs. Bharat Battery Manufacturing Co. 43. The judgments in Datar Switchgears Ltd. case(supra); Punj Lloyd case(supra) and Union of India Vs. Bharat Battery Manufacturing Co. (P) Ltd. case(supra) on which reliance has been placed by the learned counsel for the respondents/contractors may not be of assistance for the reason that the question for consideration before this Court was that if one party demands the opposite party to appoint an arbitrator and the other party fails to appoint an arbitrator within 30 days what will be its legal consequence and it was held in the cases(supra) that if one party demands the opposite party to appoint an arbitrator and if the opposite party has failed to make an appointment within 30 days, the right to make appointment is not forfeited but continues, but an appointment has to be made before the former makes an application under Section 11 seeking appointment of an arbitrator. In the instant cases, the question for consideration is as to whether the Chief Justice or his Designate in exercise of power under Section 11(6) of the Act should directly make an appointment of an independent arbitrator without, in the first instance, resorting to ensure that the remedies provided under the arbitration agreement are exhausted. 44. In the present batch of appeals, independence and impartiality of the arbitrator has never been doubted but where the impartiality of the arbitrator in terms of the arbitration agreement is in doubt or where the Arbitral Tribunal appointed in terms of the arbitration agreement has not functioned, or has failed to conclude the proceedings or to pass an award without assigning any reason and it became necessary to make a fresh appointment, Chief Justice or his designate in the given circumstances after assigning cogent reasons in appropriate cases may resort to an alternative arrangement to give effect to the appointment of independent arbitrator under Section 11(6) of the Act. 47. To conclude, in our considered view, the High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of an arbitrator which has been prescribed under clause 64(3) of the contract under the inbuilt mechanism as agreed by the parties.” 12. 47. To conclude, in our considered view, the High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of an arbitrator which has been prescribed under clause 64(3) of the contract under the inbuilt mechanism as agreed by the parties.” 12. In Perkins Eastman Architects DPC & Another ( supra 5) the arbitration proceedings commenced after Amendment Act 2015 came into force, as such, the Apex Court set aside the letter issued by the party therein for appointment of arbitrator who appointed an independent arbitrator. 13. The essence of argument of the learned counsel for the applicant is that party to the arbitration agreement cannot appoint an arbitrator. No doubt the argument made by the learned counsel that party to the agreement cannot make appointment of arbitrator sounds impressive, but earlier to Amendment Act, 2015 the said principle has no application as the said principle is invoked by operation of law by way of Amendment Act 2015 as held in Union of India vs. Parmar Construction (supra 4) and Amendment Act 2015 has no application to the facts of the case since already proceedings commenced in the year 2014 itself i.e., prior to the Amendment Act 2015 and the applicant has consciously agreed for the procedure for appointment of arbitrator by the respondent. 14. In view of the above facts and circumstances, the Amending Act 2015 has no application to the facts of the case as arbitration was invoked and commenced prior to Amendment Act 2015 and the appointing authority has already appointed the arbitrator by allowing the application filed. Except stating that the appointing authority has ceased of the power to appoint arbitrator, no serious allegations are made regarding the appointment of arbitrator. Even against the arbitrator appointed in the first instance no clear case was made out, but however, the arbitrator himself recused because of the allegations made by the applicant. The only assertion made by the applicant is that the arbitrator appointed by the appointing authority cannot be impartial because it is appointed by the party to the agreement. Even against the arbitrator appointed in the first instance no clear case was made out, but however, the arbitrator himself recused because of the allegations made by the applicant. The only assertion made by the applicant is that the arbitrator appointed by the appointing authority cannot be impartial because it is appointed by the party to the agreement. The applicant having agreed with the procedure prescribed in Clause 9.0 of Work Order-cum-Agreement, dated 26.09.2012 is bound by the same inasmuch as such power was withdrawn by Amendment Act, 2015 prospectively and the same has no application to the pending arbitration where arbitration has already commenced as held in Union of India vs. Parmar Construction (supra 4). 15. For the aforesaid reasons, I do not see any ground to entertain the arbitration application and the same is accordingly dismissed. No order as to costs.