JUDGMENT : 1. The 1st respondent herein had filed OS No.37 of 2006 before the II Additional District Judge (Fast Track Court), Vijayawada, for settlement of accounts in relation to a partnership firm, which is the 1st appellant herein. The appellants 2 to 4, who are the partners of this firm, were also arrayed as defendants 2 to 4 in the suit. 2. The appellants herein had filed an application in IA No.4592 of 2006 in OS No.37 of 2006 under Section 8(1) of the Arbitration and Conciliation Act, 1996 [for short ‘the Act, 1996’], contending that the alleged dispute would have to be referred to arbitration, inasmuch as, the partnership deed, relied upon by the 1st respondent, contained an arbitration clause. This application was dismissed by the Trial Court. Aggrieved by the same, the appellants moved the erstwhile High Court of Andhra Pradesh by way of filing CRP No.4109 of 2007. It appears that the 1st respondent herein expressed no objection for reference of the dispute to arbitration. Recording this concession, a learned Single Judge of the erstwhile High Court of Andhra Pradesh, by judgment, dated 20.03.2009, closed the civil revision petition granting liberty to the parties to approach an Arbitrator for settlement of the disputes, if any. 3. Thereafter, the 1st respondent approached the Trial Court, in OS No.37 of 2006, by filing IA No.808 of 2010, ostensibly under Section 8(1) of the Act, 1996, to appoint an Arbitrator for settlement of the accounts of the 1st appellant firm. This application came to be allowed by the Trial Court, by an order, dated 30.06.2010. The 2nd respondent, who was appointed under the said order as an Arbitrator, issued notice to both sides and initiated arbitral proceedings. The appellants had initially appeared before the 2nd respondent-Arbitrator, through their Advocate and sought time for filing pleadings. Thereafter, according to the appellants, they had not participated in the proceedings and were surprised to receive an award passed by the 2nd respondent, dated 16.06.2012. Aggrieved by the said award, the appellants moved the Principal District Judge, Machilipatnam, by way of AOP No.4 of 2012, under Section 34 of the Act, 1996. 4. Thereafter, according to the appellants, they had not participated in the proceedings and were surprised to receive an award passed by the 2nd respondent, dated 16.06.2012. Aggrieved by the said award, the appellants moved the Principal District Judge, Machilipatnam, by way of AOP No.4 of 2012, under Section 34 of the Act, 1996. 4. The main contentions of the appellants, before the Principal District Judge, Machilipatnam, were that the 2nd respondent-Arbitrator had not granted reasonable opportunity to the appellants; the application for appointment of an Arbitrator was beyond the period of limitation; award passed by the 2nd respondent was a nullity under Section 18 of the Act, 1996; and the appointment of the 2nd respondent-Arbitrator, by the Trial Court, was illegal and unauthorized, as the High Court had not given any such direction to the Court. All the aforesaid objections were rejected by the Principal District Judge who dismissed AOP No.4 of 2012, by an order dated 01.06.2017. Aggrieved by the said order of dismissal, the appellants have approached this Court by way of the present appeal. 5. Sri P. Prabhakar Rao, learned Counsel appearing for the appellants, would contend that the initial appointment of the 2nd respondent-Arbitrator is itself illegal and without jurisdiction, as such an appointment could not have been made under Section 8 of the Act, 1996. He would submit that the provisions of Section 8 of the Act, 1996, do not empower or authorize the Trial Court to appoint an Arbitrator. He would further submit that in any event reasonable opportunity was not given to the appellants to put-forth their case. The learned Counsel would contend that in view of the fact that the appointment of the 2nd respondent-Arbitrator is itself a nullity, all subsequent proceedings including the arbitral proceedings and the award passed by the 2nd respondent-Arbitrator would also be a nullity which are also to be set aside. 6. Sri Sai Gangadhar Chamarty, the learned Counsel appearing for the 1st respondent, would contend that the ground of appointment of the Arbitrator-2nd respondent herein is unauthorized and was raised only for the first time before the Principal District Judge, Machilipatnam, in an application under Section 34 of the Act, 1996. Such an objection was never raised either before the Trial Court which had appointed the Arbitrator or before the Arbitrator himself. Such an objection was never raised either before the Trial Court which had appointed the Arbitrator or before the Arbitrator himself. He would submit that, in such circumstances, the appellants cannot raise such a ground before this Court. The learned Counsel would also submit that the appellants, having participated in the proceedings before the 2nd respondent-Arbitrator, without any demur, cannot now challenge the jurisdiction of the 2nd respondent-Arbitrator. It must be held that the appointment of the 2nd respondent-Arbitrator has been accepted and there has been waiver of any challenge to such an appointment. The learned Counsel would also point out that the appellants had also not challenged the order, dated 30.06.2010, appointing the 2nd respondent-Arbitrator which had become final. 7. In reply, Sri P. Prabhakar Rao, the learned Counsel for the appellants, would contend that mere appearance of parties in the proceedings, would not cure the want of initial jurisdiction of an Arbitrator and the said proceedings would remain void and mere appearance of the parties would not cure such a defect. He relies upon the judgment of the Hon’ble Supreme Court in the case of Waverly Jute Mills Co. Ltd. v. Raymon and Co. (India) Pvt. Ltd., AIR 1963 SC 90 . Consideration of the Court : 8. Section 7(1) & (2) of the Act reads as follows : 7. Arbitration agreement.-(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. 9. This provision empowers the parties to an agreement to refer their disputes to arbitration instead of approaching the Civil Court. This facility of referring the disputes to arbitration is the creature of a contract, as set out in Section 7 of the Act. 10. In the event of such a dispute arising, the parties initiating the litigation may choose to approach the Civil Court, despite the arbitration agreement. In such circumstances, the defendant/respondent in the litigation, is entitled to insist on enforcement of the contractual right of reference of disputes to arbitration. 11. 10. In the event of such a dispute arising, the parties initiating the litigation may choose to approach the Civil Court, despite the arbitration agreement. In such circumstances, the defendant/respondent in the litigation, is entitled to insist on enforcement of the contractual right of reference of disputes to arbitration. 11. This right of enforcement of contract is contained in Section 8 of the Act, which reads as follows : “8. Power to refer parties to arbitration where there is an arbitration agreement.-(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof : Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application alongwith a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.” 12. As explained above, Section 8 is in the nature of a provision enabling the party to arbitration agreement, to insist upon disputes being referred to arbitration, rather than the Civil Court. The language of Section 8, also provides only for deciding the forum for resolution of disputes, i.e., by arbitration, and not by a Civil Court. The language of Section 8 does not extend to the appointment of an Arbitrator. The language of Section 8, also provides only for deciding the forum for resolution of disputes, i.e., by arbitration, and not by a Civil Court. The language of Section 8 does not extend to the appointment of an Arbitrator. The power of the Court, under Section 8 of the Act, is to uphold the contractual right of the party to an arbitration agreement to get the dispute resolved only through arbitration. It would not extend to appointing an Arbitrator. 13. This issue may also be looked at from another angle. Section 5 of the Act reads as follows : 5. Extent of judicial intervention.-Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. 14. This provision stipulates that any intervention, by a judicial authority, in matters falling under arbitration, would be restricted to such intervention as may be permitted under the provisions of the Act. 15. A perusal of the Act reveals that the power of appointment of an Arbitrator can be done only under Section 11 of the Act, which reads as follows : “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, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be. (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 on an application of the party in accordance with the provisions contained in sub-section (4). (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, The appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be 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 purposes of this section shall not be regarded as a delegation of judicial power by the Supreme Court or the High Court. (7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court is final and no appeal including Letters Patent Appeal shall lie against such decision. (7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Supreme Court or, as the case may be, the High Court or the person or institution designated by such Court is final and no appeal including Letters Patent Appeal shall lie against such decision. (8) The arbitral institution referred to in sub-sections (4), (5) and (6) before appointing an Arbitrator, shall seek a disclosure in writing from the prospective Arbitrator in terms of sub-section (1) of Section 12, and have due regard to- (a) any qualifications required for the Arbitrator by the agreement of the parties; and (b) the contents of the disclosure and other considerations as are likely to secure the appointment of an independent and impartial Arbitrator. (9) In the case of appointment of sole or third Arbitrator in an international commercial arbitration, [the arbitral institution designated by the Supreme Court] may appoint an Arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. (10) The Supreme Court or, as the case may be, the High Court, may make such scheme as the said Court may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6), to it. (11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to different arbitral institutions, the arbitral institution to which the request has been first made under the relevant sub-section shall be competent to appoint. (12) Where the matter referred to in sub-sections (4), (5), (6) and (8) arise in an international commercial arbitration or any other arbitration, the reference to the arbitral institution in those sub-sections shall be construed as a reference to the arbitral institution designated under sub-section (3-A). (13) An application made under this section for appointment of an Arbitrator or Arbitrators shall be disposed of by the arbitral institution within a period of thirty days from the date of service of notice on the opposite party. (14) The arbitral institution shall determine the fees of the Arbitral Tribunal and the manner of its payment to the Arbitral Tribunal subject to the rates specified in the Fourth Schedule. (14) The arbitral institution shall determine the fees of the Arbitral Tribunal and the manner of its payment to the Arbitral Tribunal subject to the rates specified in the Fourth Schedule. Explanation.-For the removal of doubts, it is hereby clarified that this sub-section shall not apply to international commercial arbitration and in arbitrations (other than international commercial arbitration) where parties have agreed for determination of fees as per the rules of an arbitral institution.” 16. The elaborate procedure set out under Section 11, leaves no room for doubt, that appointment of an Arbitrator, is only under Section 11 of the Act. It may also be noted that Section 29(6) provides for substitution of Arbitrators. However, this provision comes into play only when an Arbitrator, who has already been appointed, is sought to be substituted. This provision would not apply for the initial appointment of Arbitrator. 17. In view of the aforesaid scheme of the Act, the power of the Court, under Section 8 of the Act, is restricted to referring the disputes to arbitration and no further. The appointment of an Abitrator, under Section 8 of the Act, by a Court, would be without jurisdiction, and would not amount to a proper constitution of an Arbitral Tribunal. 18. Clause 19 of the partnership deed, which contains the arbitration clause, is also relevant and reads as follows : “19. In case of any dispute in the matters relating to the partnership or in interpretation of this agreement, such dispute may be referred to one or more Arbitrators as decided by the parties to this agreement and the decision of such arbitration shall be binding upon all the parties to the dispute.” 19. This clause requires both the authorities to agree upon the appointment of one or more Arbitrators, as decided between themselves. In the absence of such agreement, the only recourse available to the parties to the agreement is to approach the Court, under Section 11 of the Act. Any other method of obtaining appointment of an Arbitrator, from the Court, would not be permissible and the award of Arbitrator, in such a manner, would also be non-est. 20. This leaves the question of participation and waiver by the appellants. The Hon’ble Supreme Court, though dealing with the Arbitration Act, 1940 in the case of Waverly Jute Mills Co. Ltd. v. Raymon and Co. 20. This leaves the question of participation and waiver by the appellants. The Hon’ble Supreme Court, though dealing with the Arbitration Act, 1940 in the case of Waverly Jute Mills Co. Ltd. v. Raymon and Co. (India) Pvt. Ltd. (supra), had held that mere participation in arbitral proceedings by a party would not cure the defect of want of initial jurisdiction by the Arbitrators/Arbitral Tribunal. Though this principle arose out of the Arbitration Act, 1940, the said principle would continue to apply even under the provisions of the Act, 1996. Once there is an inherent want of jurisdiction in the Court which has appointed the Arbitrator, such an appointment would also have to be treated as void and non-est and any subsequent proceedings would not revive such an appointment. 21. In the circumstances, we are of the view that the initial appointment of the 2nd respondent-Arbitrator being void, all subsequent proceedings would also have to be treated as void and the award would have to be set aside under Section 34(2)(a)(v) of the Act, 1996. 22. Accordingly, the appeal is allowed and the award dated 16.06.2012 passed in AOP No.18 of 2010 and the subsequent order of the Principal District Judge, Machilipatnam, dated 01.06.2017 in AOP No.4 of 2012 are set aside. However, this would not preclude the 1st respondent from invoking arbitration in accordance with law, subject to requirements of limitation. There shall be no order as to costs. 23. Miscellaneous petitions, if any, pending in this appeal shall stand closed.