ORDER : 1. This Arbitration Application is filed under Section 11(4) & (6) of the Arbitration and Conciliation Act, 1996 for appointment of sole arbitrator to adjudicate the claims and disputes between the applicant and the respondents. 2. It is the case of the petitioner that the petitioner is one of the India’s largest product designing, Engineering, Development and Turnkey solution providers for the Telecom, Defence, Solar, Power and infrastructure sectors. The 1st respondent invited tender for supply of International Private Leased Circuit (IPLC) Lawful Interception and Monitoring(LIM) Equipment vide tender No.MM/ILD/062006/000304, dated 07.06.2006. As per the tender notice, the eligible bidder should be company registered in India to manufacture the tendered items or a Registered Indian Telecom company duly authorized by foreign/Indian manufacturer of the tendered items, to submit the bid on their behalf and having the Memorandum of Understanding (MoU) with the manufacturer for supply and maintenance support of the tendered equipment during the life span. The petitioner and the respondent No.2 entered into an MoU and Teaming Agreement on 18.08.2006 as required under the Tender stipulation and the same was tailored to meet the requirements of tender’s stipulations. The petitioner and the 2nd respondent have acted as a Consortium and have bid for the Tender. After execution of MoU and Teaming Agreement, the petitioner submitted its bid for the Tender floated by the 1st respondent, which were opened on 25.09.2006. The petitioner was a successful tenderer and the 1st respondent issued a purchase order dated 06.08.2007 for supply of equipment at 5 locations namely Chennai, Mumbai, Tuticorin, Ernakulam and Kolkata. In order to fulfill the purchase order of 1st respondent, the petitioner placed purchase orders of the 2nd respondent. The 2nd respondent thereupon supplied the equipment which was installed at the above five locations mentioned above. However, there was an inordinate delay in the testing and commissioning the equipment. The responsibility of testing and commissioning the equipment was squarely with the 2nd respondent. Due to this delay, the 1st respondent has levied liquidated damages on the petitioner in relation to 4 locations. During the execution of the contract, disputes arose between the parties and there was exchange of correspondence. The responsibility of testing and commissioning the equipment was squarely with the 2nd respondent. Due to this delay, the 1st respondent has levied liquidated damages on the petitioner in relation to 4 locations. During the execution of the contract, disputes arose between the parties and there was exchange of correspondence. As the disputes could not be resolved, the petitioner got issued legal notice dated 28.03.2017 invoking arbitration clause 20 of the General (Commercial) Conditions of Contract in the BSNL purchase order No.CE/PO/005/2007-08, dated 06.08.2007 requesting the 1st respondent for appointing an arbitrator to settle the disputes between the petitioner and the 1st respondent. Though the notice was served on the 1st respondent, the 1st has not responded to the said notice and failed to appoint an arbitrator. Hence, this application. 3. Counter affidavit is filed disputing the claim of the petitioner on merits, but existence of arbitration clause is not disputed and issuance of notice is also not disputed, as such, contentions regarding denial of claim on merits are not required to be considered in this application, as such, the other contentions are not reproduced. 4. Heard Sri P. Nagendra Reddy, learned counsel for the petitioner. 5. Though the matter was listed for judgment on 27.05.2020, there was no appearance on behalf of the respondents. Even when the matter is listed on 08.06.2020, there was no appearance on behalf of the respondents. Even today, when the matter is listed ‘for judgment’, there is no appearance for the respondents. 6. Learned counsel for the petitioner is not pressing this application against the 2nd respondent, as the 1st respondent is only signatory to the contract. 7. Even when the matter is listed on 08.06.2020, there was no appearance on behalf of the respondents. Even today, when the matter is listed ‘for judgment’, there is no appearance for the respondents. 6. Learned counsel for the petitioner is not pressing this application against the 2nd respondent, as the 1st respondent is only signatory to the contract. 7. In this case, it is to be seen that Clause 20 of the General (Commercial) Conditions of Contract in the BSNL purchase order No.CE/PO/005/2007-08, dated 06.08.2007 provides for arbitration clause, which reads as follows: “20: ARBITRATION: 20.1 In the event of any question, dispute or difference arising under this agreement or in connection there-with (except as to matter the decision of which is specifically provided under this agreement), the same shall be referred to sole arbitration of the CMD, BSNL, New Delhi or in case his designation is changed or his office is abolished then in such case to the sole arbitration of the officer for the time being entrusted (whether in addition to his own duties or otherwise) with the functions of the CMD, BSNL or by whatever designation such officers may be called (hereinafter referred to as the said officer) and if the CMD, BSNL or the said officer is unable or unwilling to act as such the sole arbitration or some other person appointed by the CMD, BSNL or the said officer. The agreement to appoint an arbitrator will be in accordance with the Arbitration and Conciliation Act, 1996. There will be no objection to any such appointment that the arbitrator is BSNL Servant or that he has to deal with the matter to which the agreement relates or that in the course of his duties as BSNL Servant he has expressed views on all or any of the matter under dispute. The award of the arbitrator shall be final and binding on the parties. In the event of such arbitrator to whom the matter is originally referred, being transferred or vacating his office or being unable to act for any reasons whatsoever, the CMD, BSNL or the said officer shall appoint another person to act as arbitrator in accordance with terms of the agreement and the person so appointed shall be entitled to proceed from the stage at which it was left out by his predecessors.” 8. The aforesaid clause goes to show that arbitration clause exists between the parties and same is invoked by the applicant by legal notice dated 28.03.2017. Since the Amendment Act, 2015 to Arbitration Act, came into force with effect from 23.10.2015, the appointment of arbitrator must be in accordance with Sections 12(3) & (5) of the Act, for securing impartiality and independence of arbitrators. In Perkins Eastman Architects DCP v. HSCC (India) ltd., [2019 SCC Online SC 1517], the Hon’ble Supreme Court held as follows: “20. We thus have two categories of cases. The first, similar to the one dealt with in TRF Limited where the Managing Director himself is named as an arbitrator with an additional power to appoint any other person as an arbitrator. In the second category, the Managing Director is not to act as an arbitrator himself but is empowered or authorized to appoint any other person of his choice or discretion as an arbitrator. If, in the first category of cases, the Managing Director was found incompetent, it was because of the interest that he would be said to be having in the outcome or result of the dispute. The element of invalidity would thus be directly relatable to and arise from the interest that he would be having in such outcome or decision. If that be the test, similar invalidity would always arise and spring even in the second category of cases. If the interest that he has in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present irrespective of whether the matter stands under the first or second category of cases. We are conscious that if such deduction is drawn from the decision of this Court in TRF Limited, all cases having clauses similar to that with which we are presently concerned, a party to the agreement would be disentitled to make any appointment of an Arbitrator on its own and it would always be available to argue that a party or an official or an authority having interest in the dispute would be disentitled to make appointment of an Arbitrator. 21. But, in our view that has to be the logical deduction from TRF Limited. 21. But, in our view that has to be the logical deduction from TRF Limited. Paragraph 50 of the decision shows that this Court was concerned with the issue, “whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an Arbitrator.” The ineligibility referred to therein, was as a result of operation of law, in that a person having an interest in the dispute or in the outcome or decision thereof, must not only be ineligible to act as an arbitrator but must also not be eligible to appoint anyone else as an arbitrator an that such person cannot and should not have any role in charting out any course to the dispute resolution by having the power to appoint an arbitrator. The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party. But, in a case where only one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally, the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of 2016) and recognized by the decision of this Court in TRF Limited.” 9. In the instant case, as already discussed supra, petitioner and the 1st respondent entered into consortium. A perusal of arbitration clause goes to show that in case of any disputes arose between the parties in connection with or arising out of impugned agreement, the same shall be referred to the Sole Arbitrator to be appointed by the CMD, BSNL, New Delhi, and the Award of the sole arbitrator shall be final and binding on both the parties. Obviously, when a sole arbitrator is appointed by the CMD, BSNL, New Delhi, or he himself acts as Arbitrator, for resolution of dispute between the petitioner and the 1st respondent, there will always be scope for biased decision in favour of the 1st respondent, since the power of appointment of sole arbitrator lies with the CMD, BSNL, which is against the provisions of Section 12(3) and (5) of the Amendment Act, 2015. 10. Section 12 of the Act of 1996 was amended by way of Amendment Act, 2015, which came into force from 23.10.2015 for ensuring neutrality of arbitrators. A perusal of Section 12 of the Amendment Act, 2015 goes to show that when a person is approached in connection with the possible appointment as arbitrator, he is required to disclose in the writing the existence of any relationship or interest of any kind which is likely to give rise to justifiable doubts as to his neutrality. He is also required to disclose any circumstances which are likely to affect his ability to devote sufficient time to the arbitration and complete the arbitration within the specified period. A person having relationships as specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator; For example: The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party to the dispute; or the arbitrator is a manager, director or part of the management, or has a similar controlling influence over the parties to the dispute. 11. In view of mandate under Section 12 of the Amendment Act, 2015 coupled with the principle laid down in the aforesaid judgment of Hon’ble Supreme Court, which has considered the scope of Section 12 of the Act of 2015, the impugned arbitration clause 20 of General (Commercial) Conditions of Contracts, to the extent of granting power to CMD, BSNL, which is a party to agreement, though it is consented to by applicant by executing agreement, is not only against the principle of law laid down by the Hon’ble Supreme Court in the aforesaid decision, but also against the provisions of Section 12(3) & (5) of the Amendment Act, 2015. Since the 1st respondent failed to respondent to the notice issued by the petitioner invoking arbitration clause, this Court is of the opinion that a sole arbitrator to be appointed for resolution of the dispute between the parties. That apart, the Hon’ble Apex Court in MAYAVATI TRADING (P) LTD. v. PRADYUAT DEB BURMAN, (2019) 8 SCC 714 held that the position of law that prevails after the insertion of Section 11(6-A) is that Supreme Court or, as the case may be, the High Court, while considering any application under Sections 11(4) to 11(6) is to confine itself to examination of existence of arbitration agreement, nothing more, nothing less, and leave all other preliminary issues to be decided by arbitrator. 12. In view of the above decision of the Apex Court, and since the existence of arbitration agreement is not in dispute, the arbitration application deserves to be allowed, leaving all other issues open, to be decided by arbitrators. 13. Accordingly, this application is allowed against 1st respondent only nominating Hon’ble Sri Justice V.V.S. Rao, former Judge of this Court, as an arbitrator, for adjudicating the disputes between the applicant and the 1st respondent. This application against 2nd respondent is dismissed. 14. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, shall stands closed.