M/s Continental India Private Limited vs. General Manager Northern Railway
Background
The appellant company had a contract with Northern Railway containing an arbitration clause (Clause 32) under which any dispute was to go to a sole arbitrator appointed by the Railway's General Manager. When a dispute arose and the appellant invoked this clause, the Railway failed to appoint an arbitrator, so the appellant approached the Allahabad High Court under Section 11(6) of the Arbitration Act seeking appointment of a sole arbitrator. Although the High Court agreed the Railway had defaulted, instead of appointing a sole arbitrator itself it directed the parties to follow a different, later procedure under Clause 64(3)(b) of the Railways' General Conditions of Contract (GCC): a document the appellant said was never signed by the parties or incorporated into their agreement.
Decision Breakdown
The Supreme Court held that once a party invokes an arbitration clause and the counterparty fails to appoint an arbitrator as agreed, that counterparty forfeits its right to make the appointment, and the court (or Chief Justice/nominee) must then appoint the arbitrator under Section 11(6), relying on its earlier decision in Deep Trading Company vs. Indian Oil Corporation. It found the High Court erred in directing the parties to the GCC procedure instead, since the GCC was never signed by the parties, was not referenced in or made part of their original agreement, and by its own terms applied only prospectively from July 2020, after the parties' contract was made, so it did not bind them at all. The Court quashed the High Court's direction to use the GCC procedure and, with the consent of both sides' counsel and to avoid further delay from remanding the case, itself appointed a named former Supreme Court judge as the sole arbitrator, allowing the appeal with no costs.
Lesson Learnt
If a party fails to appoint an arbitrator despite the other side properly invoking the contract's arbitration clause, it loses its right to make that appointment, and a court cannot instead redirect the parties to a separate, unrelated arbitration procedure (like a later-dated general conditions document) that was never made part of their actual agreement.