In Bawana Infra Development Private Limited vs. Delhi State Industrial Infrastructure Development Corporation Limited, the Delhi High Court has reiterated that the power to appoint the arbitrator under section 11(6), does not get forfeited after expiry of 30 days from the notice of appointment ofarbitrator, however the appointment has to be made before the petition for appointment of arbitrator is filed before the High Court. Whereas under section 11(4) or 11(5), the power gets forfeited after the expiry of 30 days from the date of notice of appointment.
The question whether the party will have the right to appoint the arbitrator after the expiry of a period of 30 days was considered by the Supreme Court in Datar Switchgear Ltd. v. Tata Finance Ltd.:(2000) 8 SCC 151 wherein the Court held that so far as cases falling Under Section 11(6) are concerned, no time limit has been prescribed under the Act, whereas a period of 30 days has been prescribed Under Section 11(4) and Section 11(5) of the Act. Therefore, so far as Section 11(6) is concerned, if one party demands the opposite party to appoint an arbitrator and the opposite party does not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the Court under Section 11 that would be sufficient. In other words, in cases arising Under Section 11(6), if the opposite party has not made an appointment within 30 days of demand, the right to make appointment is not forfeited but continues, but an appointment has to be made before the former files application Under Section 11 seeking appointment of an arbitrator. Only then the right of the opposite party ceases.
