Rajan Roy, J.This is an application under section 11 (6) of the Arbitration and Conciliation Act 1996 (hereinafter referred as Act 1996) for appointment of a substitute arbitrator in terms of section 15(2) of the Act 1996.

2. The facts in brief are that the parties herein had entered into a contract which contained an arbitration clause. This said arbitration clause reads as under:

"13- ;g fd bl i= esa i{kdkjksa esa ;fn dksbZ fookn mRiUu gksrk gS rks bldk fuokj.k e/;LFkksa ds }kjk fd;k tk;sxk tks fd Jh ch0ds0 nwcs o Jh nq";Ur dqekj jgsaxsA ;fn nksuksa e/;LFk viuk iapkV vyx vyx nsrs gSa rks i{kdkjksa dh lgefr ls ,d ,Eik;j fu;qDr fd;k tk;sxk ftldk fu.kZ; i{kdkjksa ij ck/;dkjh jgsxkA"

3. The arbitration clause provides for a named arbitrator. The named arbitrators failed to perform their functions entrusted to them under the Arbitration Clause, accordingly, an application was filed by the applicant herein under section 11 (6) of the Act 1996, whereupon, this court issued notice to the respondents herein and thereafter vide order dated 30th November 2011 appointed Justice A.N. Gupta (Retired) as an arbitrator in the matter. As luck would have it, Justice Gupta left for his heavenly abode while he was proceeding with the arbitration. In these circumstances the applicant has filed this application for appointment of a substitute arbitrator in terms of Section 15(2) of the Act 1996.

4. Sri Jaspreet Singh, learned counsel appearing for the respondent raised an objection that the application is not maintainable as the conditions mentioned in sub-section 3 and 4 of section 11 are not satisfied and also as the eventualities mentioned in Clause (a), (b) and (c) of sub-section 6 thereby are also not satisfied.

5. As far as sub-section (3) and (4) are concerned, as the arbitration clause does not speak of three arbitrators, therefore, the same are nothing at all applicable and this contention is accordingly rejected.

6. As far as the other contention is concerned, Sri Jaspreet Singh tried to persuade the court that even if the arbitrator appointed by the Court under section 11(6) had died during arbitral proceedings an application for appointment of substitute arbitrator would not lie straight away before this court under Section 11(6) unless either of the parties adopted the procedure for appointment of arbitrator as per the arbitration clause. He further contended that even in the case of named arbitrator the intent to refer the dispute to arbitration being evident from the existence of the arbitration clause, the appropriate course for the applicant was first to have given a notice to the respondents for appointing an arbitrator and only on satisfaction of either of the three eventualities mentioned in sub-section (6), such an application would lie before the court. In this regard he placed heavy reliance upon the judgements of the Supreme Court reported in (2006) 6 LLJ 204, Yashwith Constructions (P) Ltd. v. Simplex Concrete Piles India Ltd. ; (2006) 10 SCC 763 [LQ/SC/2006/881] , National Highways Authority of India v. Bumihiway DDB Ltd. (JV); (2012) 7 LLJ 71, ACC Ltd. v. Global Cements Ltd.; (2016) 1 LLJ 721, Huawei Technologies Co. Ltd. v. Sterlite Technologies Co. Ltd.; (2016)3 LLJ 619 [LQ/RajHC/2014/1185] ">3 LLJ 619 [LQ/RajHC/2014/1185] [LQ/CalHC/2021/3994 ;] , Shailesh Dhairyawan v. Mohan Balkrishna Lulla.

7. Sri Jaspreet Singh referred to the provisions of Section 15(2) to contend that the words used therein imply that the substitute arbitrator had to be appointed according to the Rules that were applicable to the appointment of the original arbitrator which in the present case meant the arbitration clause in the Agreement, however, he did not deny that the term Rules used therein would also include the provision contained in section 11(6) of the Act 1996 and Rules made thereunder, under which arbitrator may be appointed by this court.

8. Ms. Pushpila Bist, learned counsel appearing for the applicant, on the other hand, contended that there is no such requirement of approaching the respondents again before filing this application for appointment of a substitute arbitrator. She referred to the provisions of Section 15(2) of the Act 1996 in this regard and contended that once the earlier arbitrator had been appointed under section 11(6) then the substitute arbitrator would also be appointed under the said provision read with section 15(2) of the Act 1996.

9. On a perusal of the arbitration clause the court finds that the intent of the parties was to refer the dispute arising from the contract to arbitration by two named arbitrators and in the event of separate awards being given by them, then an Umpire was to be appointed with the agreement of the parties whose decision would be binding on them, thus, the arbitration clause does not debar the appointment of an arbitrator in the eventuality the two named arbitrators failing to function or their services being otherwise unavailable. The fact is that the named arbitrators did not perform their functions under the Arbitration Clause which led to the filing of an application under Section 11(6) of the Act 1996 before this Court earlier wherein notices were issued and vide order dated 30.11.2011 passed by this court Justice A.N. Gupta (Retd.) was appointed as an arbitrator. The fact that on the date of passing of the said order the respondents were not present, is inconsequential, especially as, they did not challenge the said order, though they could have, therefore, the appointment of the said Arbitrator under Section 11(6) attained finality. As stated earlier, Justice Gupta left for his heavenly abode while conducting the arbitral proceedings which remained pending. Such an eventuality is covered by the provisions contained in section 15(1) which provides that in addition to the circumstances referred to in section 13 and section 14, the mandate of an arbitrator shall terminate i.e. (a) where he withdraws from office for any reason; or (b) by or pursuant to the agreement of the parties. In the present case on account of the death of the arbitrator his mandate stood terminated in terms of Section 15(1) read with Section 14(a), as he became de facto unable to perform his functions. Section 15(2) has been given liberal interpretation to cover all possible circumstances under which the mandate of the arbitrator may be terminated. (2012) 7 LLJ 71, ACC Ltd. v. Global Cements Ltd.

10. The fact that section 15 is attracted in the present case is not in dispute. The dispute raised by Sri Jaspreet Singh is as to whether, for appointment of a substitute arbitrator under Section 15(2), an application would lie straight away before this court under Section 11(6) read with the aforesaid provision or as contended by him the applicant would have to first approach the respondent for appointment of an arbitrator, thereafter, on any of the eventualities mentioned in Clause (a), (b) and (c) of sub-section (6) of section 11 of Act 1996 alone, such an application would be maintainable before the court and not prior to it, therefore, according to him, as, these eventualities are not satisfied, the application is not maintainable. In this context it is necessary to quote section 15(2) of the Act 1996 which reads as under:

"15(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced."

11. It is not in dispute and in fact it is very well settled that the term "Rules" referred in the aforesaid provision includes an arbitration clause as also statutory rules under which the arbitrator being replaced was appointed.

12. In Yashwith Constructions (supra) the Supreme Court observed that "what section 15(2) contemplates is an appointment of substitute arbitrator or the replacing of the arbitrator by another according to the Rules that were applicable to the appointment of the original arbitrator, who was being replaced. The term "Rules" in section 15(2) obviously referred to the provision for appointment contained in the agreement or any Rule of any institution under which the disputes were referred to arbitration. It further observed in the same paragraph that "when section 15(2) says that a substitute arbitrator can be appointed according to the Rules that were applicable for the appointment of arbitrator originally, it is not confined to an appointment under any statutory Rule or Rule framed under the or under the scheme. It only means that the appointment of the substitute arbitrator must be done according to the original agreement or provision applicable to the appointment of the arbitrator at the initial stage." In the said case appointment of the arbitrator at the initial stage was under the arbitration clause, therefore, it was held that appointment of a substitute arbitrator accordingly was correct. In the case of S.B.P. & Co. (2), v. Patel Engineering Ltd., 2009 (10) LLJ 293, also the Supreme Court observed the term "Rules" used in the sub-section is not confined to statutory rules or the rules framed by the competent authority in exercise of the power of delegated legislation, but also includes the terms of agreement entered into between the parties. Reference may also be made to judgement of the Calcutta High Court in the case of Ramji Power Construction limited v. Damodar Valley Corporation Ltd., 2009 LLJ Online CAL 321, wherein the words " rules that were applicable to the appointment of the arbitrator being replaced" in section 15(2) were considered and it was held that if the arbitrator being replaced was appointed by the Chief Justice and/or his designate in accordance with section 11 of 1996 Act, read with the applicable rules, the substituted arbitrator would also have to be appointed by the Chief Justice and/or his designate in the same manner. Thus, in view of the aforesaid pronouncements if the arbitrator who was being replaced by substitute arbitrator was appointed under section 11(6) of the Act 1996, then the substitute arbitrator would be appointed in the same manner, i.e. under section 11(6), however, if such arbitrator was appointed as per the arbitration clause, then the substitute arbitrator would also have to be appointed accordingly.

13. It is not in dispute that the named arbitrators failed to function and in pursuance thereto, on an application being filed under section 11(6), this court on 30.11.2011 appointed Justice A.N. Gupta (Retd.) as an arbitrator who proceeded with the arbitration. In this context the words "substitute arbitrator shall be appointed according to the Rules that were applicable to the appointment of the arbitrator being replaced are very important." The words "being replaced" used in subsection (2) are not without significance. It is a well settled principle of interpretation that the legislature is not supposed to have used a word without a purpose or meaninglessly. On a bare reading of the said provision the court is of the view that a substitute arbitrator has to be appointed according to the Rules that were applicable to the appointment of the arbitrator being replaced. If the arbitrator who was being replaced was appointed under section 11(6) of the Act 1996 then the substitute arbitrator would be appointed as per the said provision, however, to contend that in such an eventuality once again the eventualities mentioned in Clause (a), (b) and (c) of sub-section 6 of section 11 should be satisfied in the sense that the applicant should first of all approach the other party for appointment of a substitute arbitrator and only on their failure to do so an application could be filed under the said provision before this court is rather reasonable and unacceptable even on a bare reading of the provisions of Act 1996 and the arbitration clause herein.

14. The eventualities mentioned in clauses (a), (b) and (c) of subsection (6) having been satisfied in the first round itself and this court having appointed an arbitrator under section 11(6) on 30.11.2011 on satisfaction of the prerequisites therein which was never put to challenge, on occurrence of the eventualities mentioned in section 15, an application for appointment of a substitute arbitrator under section 15(2) would be maintainable under section 11(6) before this court straight away, as the earlier arbitrator who is to be replaced, was appointed under the said provision. Even otherwise on the death of the arbitrator it can not be said that clause (c) of section 11(6) is not satisfied, as, the arbitrator, on his death, is unable to perform his functions. Had the earlier arbitrator been appointed under the arbitration clause or if the arbitrator clause was different from the one which exists, then of course the contention of Sri Singh would have carried weight. The right, if any, of the respondents to appoint an arbitrator stood forfeited on filing of the earlier application by the petitioner under section 11(6) and appointment of an arbitrator by this court under the said provision.

15. In Yashwith Constructions (supra) the appointment of the original arbitrator was as per the arbitration clause and not under section 11(6), therefore, at the time of appointment of a substitute arbitrator with reference to section 15(2) the term "Rules" referred therein were interpreted to include the arbitration clause under which the earlier arbitrator who was to be replaced had been appointed. This judgment does not lay down any such proposition of law that the term "Rules" used in section 15(2) means only the arbitration clause or even if the earlier arbitrator had been appointed under section 11(6)(ii) after satisfaction of the prerequisites mentioned therein, for appointment of a substitute arbitrator under Section 15(2) the exercise envisaged prior to approaching the court under section 11(6) has to be satisfied all over again.

16. In ACC Limited (supra) the arbitration clause referred to named arbitrator and the question therein was as to whether after the death of the named arbitrator the arbitration clause stood exhausted, therefore, whether an application under section 11 of the Arbitration and Conciliation Act 1996 was maintainable or not and it was contended before the supreme court that it was not maintainable. In the said case the substitute arbitrator had been appointed by the Bombay High Court under Section 11(6) read with section 15(2) of the Act 1996. The Supreme Court observed that in the absence of any prohibition or debarment there was no reason for the court to presume an intent on the part of the parties to the effect that a vacancy that arises on account of a failure or inability of a named arbitrator to act, cannot be supplied by the court under Section 11. Accordingly after referring to its earlier judgement in Sana Trading Company Limited v. IT Textiles Limited 2004 (7) LLJ 192 in Para 31 it upheld the appointment of a former judge of the Supreme Court as a substitute arbitrator by the Bombay High Court, therefore, the observations made therein do not in any way help the cause of the respondent in the present case, reliance placed on the observations made in Paras 17 and 18 cannot be considered out of context and the judgement has to be read as a whole. Furthermore the facts of the present case are materially different, as, in this case after non-availability of the named arbitrator the arbitrator was appointed under section 11(6) by this court, who has died, hence the need for appointment of substitute arbitrator which was not so in ACC Limited (supra), therefore, the same Rule would be adopted for appointment of a substitute arbitrator also minus of course, the satisfaction of the eventualities contained in Clause (a), (b) and (c) all over again, as, the same had been satisfied in the first round itself and this time the appointment under Section 11(6) is referable to section 15(2) of the Act 1996.

17. No doubt, as observed in National Highways Authority of India (supra) that under section 11 (6) of the Act 1996 the court has jurisdiction to make the appointment only when the person including an institution fails to perform any function entrusted to it under that procedure, but this eventuality has already taken place in the present case prior to the appointment of the earlier arbitrator Justice A N Gupta (Retd.) under section 11(6). The arbitration clause in National Highways case related to appointment of three arbitrators and was very different from the one which exists in the present case. The facts of the case were also very different.

18. As far as the judgment of the Supreme Court in Huawei Technologies Co. Ltd. (supra) is concerned, as per arbitration clause therein a sole arbitrator was to be appointed with mutual consent of the parties. The appointment of the arbitrator by one of the parties having been rejected by the other resulting in recusal of the arbitrator led the aggrieved party to file an application under section 11(6) before the High Court, which on being challenged was disapproved by the Supreme Court on the ground that appointment of substitute arbitrator was to be in terms of the arbitration clause with mutual consent therefore applicant should have first approached the respondent in this regard. The arbitration clause as also the facts in the said case were different. The earlier arbitrator in the said case was proposed / approved as per the arbitration clause, therefore, for appointment of substitute arbitrator also the same course should have been adopted. This judgment has no application to the facts of the present case.

19. Sri Jaspreet Singh, Advocate could not place before the court any judgement of the supreme court wherein the earlier arbitrator having been appointed under section 11 (6), yet, the law was propounded that for appointment of a substitute arbitrator first of all the parties should approach the other party in terms of the arbitration clause, especially the kind of arbitration clause existing in the present case.

20. Considering the facts of the present case, reference may be made to the pronouncement of the supreme court in San-A Tradubg Co. Ltd. v. I.C. Textiles Ltd., (2012) 7 LLJ 192, wherein their lordships have held as under:

"17. The submission of the learned counsel for the respondent that as the named arbitrator has refused to act as an arbitrator, the arbitration agreement itself comes to an end, cannot be accepted because Section 15 provides for a remedy for appointment of another arbitrator when the arbitrator appointed by the parties as provided in the agreement refuses to act an arbitrator. Settlement of dispute between the parties through medium of an independent person in whom both parties repose confidence is the basic foundation on which the law of arbitration stands and is founded.

18. When the agreement provides for reference of a dispute to a particular individual and such agreed arbitrator refuses to act, the next appointment could be made as agreed by the parties, but where no such procedure is prescribed authorizing appointment of another arbitrator then the agreement clause cannot operate. It, therefore, follows that in case where the arbitration clause provides for appointment of a sole arbitrator and he had refused to act, then the agreement clause stands exhausted and then the provisions of Section 15 would be attracted and it would be for the Court under Section 11(6) to appoint an arbitrator on the procedure laid down in Section 11(6) being followed unless there is an agreement in the contract where the parties specifically debar appointment of any other arbitrator in case the named arbitrator refuses to act."

21. This judgement supports the maintainability of this application under section 11(6) read with section 15(2), It has been followed in ACC Ltd. (supra)

22. Even though in this case there was no agreement between the parties prior to institution of the suit and the same was arrived at under section 89 and based on such agreement to refer the matter to arbitration the Bombay High Court, exercising original civil jurisdiction in the suit, appointed a retired Judge of the Supreme Court as an arbitrator to resolve the matter in terms of the agreement, who resigned subsequently. The plaintiff filed an application for appointment of a substitute arbitrator in the disposed suit which was dismissed, whereupon, he filed an application under section 11(6) before the Bombay High Court. It is this appointment which was challenged on various grounds before the Supreme Court. The Supreme Court,, after considering the earlier judgments in Yashwith Construction (supra), S.B.P. and Co. v. Patel Eng., (2009) 10 LLJ 293, ACC LTD. (supra), discussed and explained the law on the subject and upheld the appointment of the substitute arbitrator under section 11(6) read with section 15(2) by the Bombay High Court as the application had been filed before the appointing authority i.e. the Bombay High Court, which had appointed the earlier arbitrator. It observed as under :

"21. In fact, as has correctly been pointed out by learned counsel for the respondent, Section 89 of the CPC specifically provides that a Court hearing a suit may formulate terms of settlement between the parties and may either settle the same or refer the same for settlement by conciliation, judicial settlement, mediation or arbitration. On the facts in the present case, it is clear that following the mandate of Section 89, the Bombay High Court disposed of the suit between the parties by recording the settlement between the parties in clauses 1 to 7 of the consent terms and by referring the remaining disputes to arbitration. In the present case therefore it is clear that it is the Bombay High Court that was the appointing authority which had in fact appointed Mrs. Justice Sujata Manohar as arbitrator in terms of clause 8 of the consent terms. We must remember, as was held in C.F. Angadi v. Y.S. Hirannayya, [1972] 2 S.C.R. 515 at 523 that an order by consent is not a mere contract between the parties but is something more because there is super-added to it the command of a Judge. On the facts of the present case, it is clear that the Bombay High Court applied its mind to the consent terms as a whole and appointed Mrs. Justice Sujata Manohar as arbitrator for the disputes that were left to be resolved by the parties. The said appointing authority has been approached by the respondent for appointment of a substitute arbitrator, which was then done by the impugned judgment. This would therefore be "according to the rules that were applicable to the appointment of the arbitrator being replaced" in accordance with Section 15(2) of the. We, therefore, find that the High Court correctly appointed another independent retired Judge as substitute arbitrator in terms of Section 15(2) of the Arbitration Act, 1996. The appeal is, therefore, dismissed."

23. In this case the earlier arbitrator having been appointed by the High Court after notice to the respondents under section 11(b), an application for appointment of a substitute arbitrator under section 11(6) read with section 15(2), is maintainable and as the dispute arising out of the contract subsists, therefore, the name of Justice (Retd.) K.S. Rakhra is proposed for appointment as Arbitrator.

24. Let a copy of the pleadings on record alongwith the relevant provisions of the amending Act 2015 be sent to Justice (Retd.) K.S. Rakhra for eliciting his disclosure in terms of Section 11(8) read with Section 12(1) of the Act, 1996 and Schedule VI and VII as amended by Act 2015, appended thereto, as also his consent for appointment as an arbitrator for resolving the dispute.

25. Steps to be taken by the applicant to facilitate the aforesaid.

26. List this application on 02.2.2017.