Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DAILYLAW 3866 (HP)

Neelam Shukla v. Ram Pal Shukla

2025-10-31

G S Sandhawalia

body2025
JUDGMENT : G.S. Sandhawalia, C.J. The present application being OMP No.1105 of 2024 in Arbitration Case No.31 of 2004 has been filed by the applicant- respondent under Section 15 sub-Section (2) and (3) of the Arbitration and Conciliation Act, 1996 read with Section 151 of Civil Procedure Code (CPC), 1908 seeking the relief of sending the records of Arbitration Case No.31 of 2004 titled as Neelam Shukla Vs. Ram Pal Shukla to the learned Arbitrator Hon’ble Mr. Justice Kuldip Singh (Retired) for concluding the arbitration proceedings or in the alternative to substitute a new Arbitrator to decide the case. A prayer has also been made that the appointment or mandate of the said Arbitrator may be substituted as per the mandate of Section 15 of sub-Sections (2) and (3) of the Arbitration and Conciliation Act, 1996, if this Court deems it fit and proper in the facts and circumstances of the case. 2. The application has been opposed tooth and nail by the non-applicant/petitioner on various grounds and therefore, keeping in view the background as such of the case which is revolving around solely on the point of the appointment of the Arbitrator, as per the agreement dated 21.06.1998. The history of the case is required to find out, in view of the stand taken by the non-applicant/petitioner, whether the matter had attained finality or not and whether the present application would be maintainable or not. Background of the case:- 3. Apparently, on 15.03.2005 (Annexure P-1), while deciding the main case in Arb. Case No.31 of 2004 titled Neelam Shukla Vs. Ram Pal Shukla the then Chief Justice, while keeping in view the agreement dated 21.06.1998 between the parties and on the consensus that a three Member Arbitral Tribunal would not be appropriate had held that Hon’ble Mr. Justice R.L. Khurana a retired Judge of this Court would be a Single Member of the Arbitral Tribunal in place of aforesaid three Member Arbitral Tribunal, as per Clause 15 of the said agreement. Since the petitioner-Neelam Shukla was running “Hotel Silver Inn”, the boarding and lodging arrangements was to be done in the said hotel, keeping in view the dignity and status of the Arbitrator and the charges as such were fixed, while disposing of the petition. Unfortunately, Hon’ble Mr. Since the petitioner-Neelam Shukla was running “Hotel Silver Inn”, the boarding and lodging arrangements was to be done in the said hotel, keeping in view the dignity and status of the Arbitrator and the charges as such were fixed, while disposing of the petition. Unfortunately, Hon’ble Mr. Justice R.L. Khurana expired on 13.05.2015 leading to OMP No.453 of 2015 being filed by the present applicant/respondent and vide order dated 29.02.2016, a learned Single Judge of this Court again constituted a three Member Arbitral Tribunal headed by Hon’ble Mr. Justice Kuldeep Singh Kanwar (retired), Mr. Lokender Thakur and Mr. Tara Singh Chauhan, Advocates, while terminating the earlier mandate. 4. The Special Leave Petition (SLP) No.9851- 9852/2016 titled Neelam Shukla Vs. Ram Pal Shukla, was preferred by petitioner-Neelam Shukla that the appointment of two assisting/co-arbitrators was wrong and response was filed by the present applicant/respondent that he at all had no objection if the matter is decided by a single Arbitrator namely Mr. Justice Kuldeep Singh Kanwar (retired) and he may continue the proceedings from the stage where the earlier Arbitrator had left it. On 25.08.2017, the petition was allowed being not opposed. Therefore, it was the case as such of the present applicant-Ram Pal Shukla that Hon’ble Mr. Justice Kuldeep Singh Kanwar a sole-Arbitrator may be appointed as a substitute Arbitrator. The order passed by the Apex Court dated 25.08.2017 (Annexure P- 4), in the said Civil Appeal reads as under:- “ORDER When the matters are taken up today, learned counsel appearing for the respondent submits that the respondent do not wish to contest the matter. In the circumstances, the appeals are allowed in terms of the signed order. Pending applications, if any, stand disposed of.” 5. Resultantly, an application being OMP No.427 of 2017 dated 31.10.2017 came to be filed praying that the record be transmitted to Hon’ble Mr. Justice Kuldeep Singh Kanwar by the present applicant-respondent. The learned Single Judge, however of this Court decided the same on 13.07.2018 (Annexure P-6), wherein liberty was given to withdraw the application and to file an appropriate fresh application for appointment of an Arbitrator, in accordance with law, if so required and desired. Justice Kuldeep Singh Kanwar by the present applicant-respondent. The learned Single Judge, however of this Court decided the same on 13.07.2018 (Annexure P-6), wherein liberty was given to withdraw the application and to file an appropriate fresh application for appointment of an Arbitrator, in accordance with law, if so required and desired. The relevant portion of the order dated 13.07.2018 reads as under:- “Learned counsel for the applicant/petitioner, states that due to intervening developments, he has instructions to withdraw the present application, however, liberty may be reserved to file appropriate application for appointment of an Arbitrator at appropriate stage. 2. Consequently, in view of the aforesaid, present application is dismissed as withdrawn with liberty reserved to the applicant/petitioner to move fresh application for appointment of the Arbitrator, in accordance with law, if so required and desired.” 6. Then OMP No.449 of 2018 was filed by the applicant/respondent by recording the background as such of the case and praying that new Arbitrator/substituted Arbitrator was required to be appointed to conclude the arbitration proceedings. The application was opposed by the petitioner-Neelam Shukla on the ground that the order dated 29.02.2016 had been set aside and application was not maintainable. The matter was listed before the learned Single Judge on 20.06.2019, wherein the matter was directed to be listed before the appropriate Bench. Eventually, it came to be listed before the then Hon’ble the then Chief Justice on 23.08.2019 (Annexure P-10). The said application was dismissed as withdrawn, with liberty to file a fresh application under Section 11(6) of the Arbitration and Conciliation Act, 1996. The said order dated 23.08.2019 reads as under:- “OMP No.449 of 2018 Mr. M.A. Khan, learned Senior Counsel for the respondent-applicant, is permitted to withdraw this application under Sections 14 and 15 of the Arbitration and Conciliation Act, 1996 with liberty to file a fresh application under Section 11(6) of the Act. Accordingly, the application is dismissed as withdrawn, with liberty as prayed for.” 7. Then in Arbitration Case No.59 of 2020 under Section 11(6) of the Arbitration and Conciliation Act, 1996 came to be filed on 27.11.2019 for appointment of an Arbitrator and the same was dismissed on 25.08.2023 alongwith the application bearing OMP No.599 of 2022, which was for condonation of delay. Then in Arbitration Case No.59 of 2020 under Section 11(6) of the Arbitration and Conciliation Act, 1996 came to be filed on 27.11.2019 for appointment of an Arbitrator and the same was dismissed on 25.08.2023 alongwith the application bearing OMP No.599 of 2022, which was for condonation of delay. Whereas the application bearing OMP No.395 of 2022 filed by the petitioner was allowed which was for dismissing the arbitration application on the ground that earlier OMP No.262 of 2020 had been dismissed as infructuous on 03.06.2022 which was for delay in removing the objections regarding the pleas raised by the Registry. Apparently, certain observations were also made of the wrong committed by the counsel and that without informing the then Chief Justice which application had been filed by the Senior Counsel. 8. Against the said order dated 25.08.2023, the said counsel namely Mr. M.A. Khan had preferred the Special Leave Petition (SLP) No.53112 of 2023, wherein the observations made against the Advocate as such were set aside, while upholding the judgment in Arbitration Case No.59 of 2020. The said order dated 22.01.2024 (Annexure R-1) reads as under:- “Permission to file special leave petition is granted. Delay condoned. In our opinion, the impugned judgment rightly dismisses the Arbitration Case No.59 of 2020. However, we delete the observations made against the advocate, who had appeared on behalf of the petitioner-M.A. Khan before the High Court. Recording the aforesaid, the special leave petition is disposed of. Pending application(s) if any, shall stand disposed of.” 9. The present applicant/petitioner had also preferred another separate Special Leave Petition (Civil) Diary No.23938 of 2024 titled Ram Pal Shukla Vs. Neelam Shukla, which went to the another Bench of the Apex Court and was decided on 08.07.2024 (Annexure P-14), whereby reference was made to the first order dated 25.08.2017, leaving the present applicant as such to exercise his rights in accordance with law. The said order dated 08.07.2014 reads as under:- “Delay condoned. In view of the order dated 25.08.2017 passed by this Court in Civil Appeal Nos.9851 of 2016 titled “Neelam Shukla Vs. Ram Pal Shukla”, we are not inclined to issue notice in the present special leave petition and hence, the same is dismissed. The said order dated 08.07.2014 reads as under:- “Delay condoned. In view of the order dated 25.08.2017 passed by this Court in Civil Appeal Nos.9851 of 2016 titled “Neelam Shukla Vs. Ram Pal Shukla”, we are not inclined to issue notice in the present special leave petition and hence, the same is dismissed. However, we clarify that the impugned judgment and the dismissal of the present special leave petition will not come in the way of the petitioner- Ram Pal Shukla in exercising rights, if any in accordance with law. Pending application(s), if any, shall stand disposed of.” Arguments by counsel for applicant/respondent:- 10. It is in such circumstances, the original applicant- respondent is seeking the sole prayer for the continuation of the sole Arbitrator on the ground that the theme of the litigation all along was that only that a sole Arbitrator should be appointed to look into the matter. Accordingly, it is contended that there is no other remedy available and the Rules of Procedure as such are “Handmaids of justice” and technicalities are not to get into the way, when the matter has never been adjudicated upon. 11. Reliance has been placed upon Section 14 of the Act in this context specially sub-Clause 2 that the controversy still remains concerning any of the grounds and if the mandate of the Arbitrator is terminated he shall be substituted by another Arbitrator. 12. Similarly, reference is also made to Section 15 of the Act which provides the power as such how the mandate can be terminated on certain accounts and the substitute arbitrator is to be appointed and any hearing is held may be repeated at the discretion of the Arbitral Tribunal and that any order passed as such cannot be invalid solely on account of the change of the composition of the Arbitral Tribunal. It is thus argued that there being no final award and the arbitration proceedings can be only terminated by the same under Section 32(2), whereby the Arbitral Tribunal could terminate the arbitration proceedings on various grounds like a withdrawal as such of the claim; parties agreeing and the consent of the parties and the continuation of the proceedings become unnecessary and impossible. Under Section 32 sub-Clause 3 was referred that the mandate of the arbitral proceedings shall terminate with the termination of the arbitral proceedings. 13. Under Section 32 sub-Clause 3 was referred that the mandate of the arbitral proceedings shall terminate with the termination of the arbitral proceedings. 13. Reliance has been placed upon the judgments of the Apex Court in ACC Limited (Formerly Known as the Associated Cement Company Limited) Vs. Global Cements Limited (2012) 7 SCC 71 , Lalit Kumar V. Sanghavi (Dead) through LRS Neeta Lalit Kumar Sanghavi and Another Vs. Dharamdas Vs. Sanghavi and Others (2014) 7 SCC 255 , Union of India and Others Vs. Uttar Pradesh State Bridge Corporation Limited (2015) 2 SCC 52 , Shailesh Dhairyawan Vs. Mohan Balkrishna Lulla (2016) 3 SCC 619 and United Bank of India Vs. Naresh Kumar and Others (1996) 6 SCC 660 . 14. It is thus the contention of the counsel that the case was never decided on merits while relying upon the observations made in Civil Appeal No.1948 of 2013 titled Prem Kishore & Others Vs. Brahm Prakash & others decided on 29.03.2023 and United Bank of India Vs. Naresh Kumar (supra), therefore the records be sent to Hon’ble Mr. Justice Kuldip Singh (Retired) or a new substitute arbitrator be appointed. 15. It is therefore, the sole contention as such of the counsel that the case was only regarding the challenge to the three Member Arbitral Tribunal and that limited consent in the Special Leave Petition (SLP) had been given to that extent way- back on 25.08.2017 and the right had been further protected by the Apex Court in Special Leave Petition (Civil) Diary No.23938 of 2024 titled Ram Pal Shukla case (supra) vide order dated 08.07.2014 (Annexure P-14). Arguments of the counsel for the non-applicant/petitioner:- 16. Mr. R.L. Sood, learned Senior Counsel for the non- applicant/petitioner, on the other hand, vehemently has submitted that the second Arbitration Case No.59 of 2020 titled Ram Pal Shukla Vs. Neelam Shukla having been dismissed on 25.08.2023 and having been upheld on 22.01.2024 (Annexure R-I) the present application was not maintainable. It was argued that finality has to be given to the case and the dispute had culminated firstly on 25.08.2017 and the Special Leave Petition (SLP) was allowed and further submitted that the order dated 08.07.2024 (Annexure P-14) also did not extend the limitation. As such the principle of constructive res judicata had thus to be applied by relying upon the judgments of Apex Court in Asgar and Others Vs. As such the principle of constructive res judicata had thus to be applied by relying upon the judgments of Apex Court in Asgar and Others Vs. Mohan Verma and Others (2020) 16 SCC 230 and K.K. Modi Vs. K.N. Modi and Others (1998) 3 SCC 573 . 17. Reliance was also placed upon the judgment passed in Special Leave Petition (Civil) No.4008 of 2023 titled Tricolor Hotels Limited Vs. Dinesh Jain & Others decided on 19.09.2025, that the delay was not to be condoned on the mere asking. It is accordingly, contended that the present application was not maintainable in Arbitration Case No.31 of 2004 which already stood closed and since the application had not been filed within three years, no arbitrable dispute exists and the mandate had to be terminated. Issue for consideration: 18. The sole issue which arises for consideration is whether the original petitioner-Neelam Shukla now can turn around and submit that having originally got an Arbitrator appointed whether she can say that the mandate stands terminated of the Arbitrator and on account of the earlier applications and orders passed, the present application is liable to be dismissed. 19. It is also to be noticed that it is the specific case of the applicant that he was forcibly ousted from the Hotel in question in the month of May, 2003 and therefore, had asked for arbitration proceedings as and that he did not want to continue the partnership. His partnership was terminated in terms of Clause 14 of the partnership deed, as per the notice sent on 07.11.2008 (R-II), which was issued during the pendency of the arbitration proceedings. A three Member Arbitral Tribunal was again appointed on 29.02.2016, which was apparently on an application filed by the present applicant who was the respondent in initial Arbitration Case No.31 of 2004. Apparently in the Special Leave Petition (SLP) preferred by the original petitioner-Neelam Shukla, the case is set-out as such was that the concept of appointment of assisting Arbitrators was not permissible as had done by the learned Single Judge vide order dated 29.02.2016. The earlier consent order dated 15.03.2015 had been referred to and therefore, it was the case of Neelam Shukla that the parties had agreed to a Single Member Tribunal. 20. The earlier consent order dated 15.03.2015 had been referred to and therefore, it was the case of Neelam Shukla that the parties had agreed to a Single Member Tribunal. 20. A perusal of the Special Leave Petition (SLP) filed as such by the non-applicant/petitioner-Neelam Shukla would go on to show that the ground on which the order dated 29.02.2016 and the order dated 16.08.2016 was challenged was that on an earlier consent order, the parties had agreed to a Single Member Tribunal and therefore, constituting a three-member Arbitral Tribunal is against the provisions of Section 15(2) of the Arbitration and Conciliation Act, 1996. The grounds reads as under:- “II. For that the High Court failed to appreciate that the previous arbitrator was appointed on the basis of the consent order of the High Court dated 15.03.2005 whereby the parties had agreed for a Single Member Tribunal. Therefore, the constituting of a three-member Arbitral Tribunal is against the provisions of Section 15(2) of the Act of 1996. III. Thus, Section 15(2) of the Act of 1996 mandates that the same terms of appointment shall be applied for the substitute arbitrator as had been applied for the previous arbitrator and there is no concept of appointment of Assisting Arbitrator within the scheme of the Arbitration & Conciliation Act, 1996. IV. For that the appointment of Assisting Arbitrators is neither envisaged under section 11 or under section 15 of the Arbitration & Conciliation Act, 1996 and the impugned order dated 29.02.2016 appointing Assisting Arbitrator is bad and illegal. Similarly, directing the parties to appear before the illegally constituted Arbitral Tribunal by transmitting the record vide order dated 16.08.2016 is bad and illegal and is liable to be set aside.” 21. In the reply/response which had been filed by the present non-applicant/petitioner, which had been specifically averred that the Special Leave Petition (SLP) be disposed of and the order be modified that Hon’ble Mr. Justice Kuldeep Singh Kanwar (retired) may be appointed as the sole Arbitrator and the proceedings be started from the said stage and the fact that the arbitration proceedings have continued for more than 10 years and the Court may determined the remuneration to the said substitute Arbitrator, keeping in view the delay occurred. The relevant part read as under:- “23. Justice Kuldeep Singh Kanwar (retired) may be appointed as the sole Arbitrator and the proceedings be started from the said stage and the fact that the arbitration proceedings have continued for more than 10 years and the Court may determined the remuneration to the said substitute Arbitrator, keeping in view the delay occurred. The relevant part read as under:- “23. That without prejudice to the aforesaid, the Respondent categorically submits that he has absolutely no difficulty or reservations with the arbitration proceedings being conducted by a sole arbitrator. Similarly, it is most profoundly submitted that the Petitioner in the instant Special Leave Petition has expressed its consent in the current arbitration proceedings being conducted by Justice (Retd.) K.S. Kanwar alone under the terms of remuneration/fees as may be fixed by the Hon’ble High Court. Furthermore, in the Objection dt. 09.08.2016 filed by the Petitioner to the application filed by the Respondent in Arbitration Case No.31 of 2004, the Petitioner has categorically admitted that only Justice (Retd.) K.S. Kanwar could have been appointed as the sole arbitrator on the same terms and conditions as the previous vacating arbitrator. In view of the same, it is most respectfully submitted that the Respondent has no difficulty in having the arbitration proceedings being conducted solely by Justice (Retd.) K.S. Kanwar as the sole arbitrator. As such, it is the submission of the Respondent the instant Special leave Petition may be disposed of by this Hon’ble Court dt. 29.02.2016 to the extent that Justice (Retd.) K.S. Kanwar may be appointed as the sole arbitrator and he may continue the proceedings from the stage Late Justice (Retd.) R.K. Khurana left the proceedings. A True copy of the Objection dt. 09.08.2016 filed by the Petitioner to the application filed by the Respondent in Arbitration Case No.31 of 2004 is annexed and marked herewith as Annexure No.C from page 22 to 23. 24. That it is also submitted that the arbitration proceedings have already continued for about more than 10 years and as a result of which in view of the aforesaid facts of the case, the Respondent is suffering prejudicially and gravely on account of the mounting delay in conclusion of the arbitration proceedings.” 25. That the respondent is a senior citizen of 73 years of age. That the respondent is a senior citizen of 73 years of age. Also the Respondent is not keeping good health as he is a heart patient and is also suffering from high blood pressure and sugar ailments besides the regular treatment which he is undergoing and as a result of which he has remained admitted in IGMC, Shimla for a considerable period. In light of the aforesaid, it is requested that the instant SLP may be disposed of by this Hon’ble Court on the terms that since both the Petitioner and the Respondent has agreeable on the arbitration proceedings being conducted by Mr. Justice (Retd.) K.S. Kanwar alone as the sole arbitrator, the order passed by the Hon’ble High Court may be modified to that extent. Furthermore, it is submitted that this Hon’ble Court may pleased to determine the remuneration to the awarded to Justice (Retd.) K.S. Kanwar for conduct of the arbitral proceedings. 26. That in view of the aforesaid, and in view of the proceedings of Section 29A of the new Arbitration and Conciliation Act Amendment Act, 2015 providing for conclusion of the arbitration proceedings and the passing of the award within 12 months, it is respectfully submitted that this Hon’ble Court may be pleased to direct that the arbitration proceedings pending before the Ld. Justice (Retd.) K.S. Kawar may be concluded at the earliest preferably within a period of 3 months. 27. That in view of the aforesaid position, it is respectfully submitted that the instant Civil Appeal may be allowed only to the limited extent that Justice (Retd.) K.S. Kanwar may be retained as the sole arbitrator to the exclusion of other assisting arbitrators in view of the fact that both the Petitioner and the Respondent are agreeable on the same and also considering the mounting delay which has occasioned meanwhile. Similarly, it is submitted that the order passed by the Hon’ble High Court may be modified to the limited extent as aforesaid.” 22. In United Bank of India case (supra), it has been held by the Apex Court that injustice should not be done to any party who has a just case and a susbstantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. 23. In United Bank of India case (supra), it has been held by the Apex Court that injustice should not be done to any party who has a just case and a susbstantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. 23. In ACC Limited case (supra), it has been held by the Apex Court when the issue arose before the Apex Court that whether in the absence of the Arbitrators on account of their death, the Arbitration Clause would survive or not for resolving the differences. 24. The Bombay High Court had rejected the arguments as such and appointed a retired Superme Court Judge by adjudicating the dispute which is a subject matter of challenge. Resultantly, the Apex Court came to the conclusion that while taking into account the provisions of Sections 14 and 15 of the Arbitration and Conciliation Act, 1996 that once the existence of the agreement was not in dispute and the parties had contemplated to resolve the difference by way of arbitration, the mandate of the Arbitrator would only terminate for specific reasons and the substitute Arbitrator has to be appointed and no further application for appointment of an independent Arbitrator under Section 11(6) would lie and Section 15(2) has to be given a liberal interpretation to apply for all possible circumstances. In the absence of such debarment or prohibition of appointment of a substitute Arbitrator, it was the Court’s duty is to give effect to the policy of law that is to promote efficacy of arbitration. The relevant portion reads as under:- “15. The existence of an agreement is not in dispute, the question is about its enforceability on the death of the named arbitrators. The facts clearly indicate that the parties in this case have contemplated that if any question or difference or dispute arises between them, in relation to or with respect to the meaning or effect of the contract or with respect to their rights and liabilities, the same would be referred to one of the two named arbitrators named in the arbitration clause. The question is whether Clause 21 would outlive the lives of the named arbitrators. 16. Section 14 of the Arbitration and Conciliation Act, 1996 provides for the circumstances in which the mandate of an arbitrator is to terminate. The question is whether Clause 21 would outlive the lives of the named arbitrators. 16. Section 14 of the Arbitration and Conciliation Act, 1996 provides for the circumstances in which the mandate of an arbitrator is to terminate. It says that the mandate of an arbitrator will end when it becomes impossible for him to perform his functions de facto or de jure or for some other reasons he fails to act without undue delay or withdraws from office of the parties agree to terminate his mandate. 17. Section 15(2) of the Act provides that where a substitute arbitrator has to be appointed due to termination of the mandate of the previous arbitrator, the appointment must be made according to the rules that were applicable to the appointment of the arbitrator being replaced. No further application for appointment of an independent arbitrator under Section 11 will lie where there has been compliance with the procedure for appointment of a substitute arbitrator. On appointment of the substitute arbitrator in the same manner as the first, no application for appointment of independent arbitrator under Section 11 could be filed. Of course, the procedure agreed upon by the parties for the appointment of the original arbitrator is equally applicable to the appointment of a substitute arbitrator, even if the agreement does not specifically say so. Reference may be made to the judgment of this Court in Yashwith Constructions (P) Ltd. V. Simplex Concrete Piles India Ltd. 18. Sections 14 and 15 provide the grounds for termination of the mandate of the arbitrator on the ground of incapability of the arbitrator to act or if he withdraws from his office or when the parties agree to the termination of the mandate of the arbitrator. Section 15(2) states that a substitute arbitrator shall be appointed as per the rules that were applicable to the appointment of the arbitrator being replaced. Section 15(2), therefore, has to be given a liberal interpretation so as to apply to all possible circumstances under which the mandate may be terminated. 19. The scope of Sections 11(6) and 15 came up for consideration before the learned designate of the Chief Justice of India in San-A Tradbug Co. Ltd. v. I.C. Textiles Ltd.5 and the learned Single Judge held as follows: (Arb LR p.17, para 12). “12. ... 19. The scope of Sections 11(6) and 15 came up for consideration before the learned designate of the Chief Justice of India in San-A Tradbug Co. Ltd. v. I.C. Textiles Ltd.5 and the learned Single Judge held as follows: (Arb LR p.17, para 12). “12. ... 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 name arbitrator refuses to act.” 20. Section 11(6) would not apply only if it is established that parties had intended not to supply the vacancy occurred due to the inability of the arbitrator to resolve the dispute or due to whatever reasons but that intention should be clearly spelt out from the terms of the arbitration clause in the agreement. 21. The legislative policy embodied in Sections 14 and 15 of the Act is to facilitate the parties to resolve the dispute by way of arbitration. The arbitration clause if clearly spells out any prohibition or debarment, the court has to keep its hands off and there is no question of persuading or pressurising the parties to resolve the dispute by a substitute arbitrator. Generally, this stands out as an exception and that should be discernible from the language of the arbitration clause and the intention of the parties. In the absence of such debarment or prohibition of appointment of a substitute arbitrator, the court’s duty is to give effect to the policy of law that is to promote efficacy of arbitration.” 25. In Lalit Kumar V. Sanghavi (supra), it has been held that while examining the provisions of Sections 14(2) and 32(2)(c) of the Arbitration and Conciliation Act, 1996 that the mandate of the Arbitral Tribunal, whether legally terminated or not has to be examined only under the Arbitration and Conciliation Act, 1996. In Lalit Kumar V. Sanghavi (supra), it has been held that while examining the provisions of Sections 14(2) and 32(2)(c) of the Arbitration and Conciliation Act, 1996 that the mandate of the Arbitral Tribunal, whether legally terminated or not has to be examined only under the Arbitration and Conciliation Act, 1996. The proceedings had arisen out of the Arbitrator terminating the proceedings and fees has not been paid and therefore the application under Section 11 of the Arbitration and Conciliation Act, 1996 was held to be not maintainable. 26. In appeal, the Bombay High Court opined that the remedy lies under Article 226 of the Constitution of India, while relying upon the provisions of Sections 14 and 32 of the Arbitration and Conciliation Act, 1996, and accordingly, it was held that the termination of the mandate could be examined by approaching the appropriate Court for determination of the legality and the arguments raised that the appellant was left remediless was held to be without basis. 27. In Uttar Pradesh State Bridge Corporation Limited case (supra), the Apex Court has held that while placing reliance upon Union of India Vs. Singh Builders Syndicate (2009) 4 SCC 523 that pendency of arbitration proceedings for a decade had been found to be a mockery of the process of arbitration and the Courts were not powerless to remedy by springing into action and exercising their powers as contained under Section 11 of the Arbitration and Conciliation Act, 1996, to constitute an Arbitral Tribunal so that the interest of the other side is equally protected. 28. The said observations thus practically apply in the facts and circumstances of the case as the proceedings have been pending since 2005 and 20 years later, the issue being disputed is whether the substitute Arbitrator is to continue and an attempt is being made to reduce the arbitration proceedings at the hands of the petitioner of a farce and an illussion of a remedy and therefore the arguments raised as such by the learned Senior Counsel for the non-applicant/petitioner are not liable to be accepted. 29. In Shailesh Dhairyawan (supra), it has been held that appointment of an independent retired Judge as a substitute Arbitrator was in accordance with the Rules as such and liberal interpretation has to be given as arbitration was cost effective and speedier remedy having been preferred by the parties. 29. In Shailesh Dhairyawan (supra), it has been held that appointment of an independent retired Judge as a substitute Arbitrator was in accordance with the Rules as such and liberal interpretation has to be given as arbitration was cost effective and speedier remedy having been preferred by the parties. By the concurring judgments, it has been held by one of the Judge that 'golden rule' and ‘literal rule’ of the interpretation is to be seen and the Courts have the power to appoint a substitute arbitrator under Section 15(2) of the Arbitration and Conciliation Act, 1996. 30. The reading of the separate judgments by both the learned Judges would go on to show that the Court has to keep in mind is that the resolution of the dispute had been agreed by way of specific process of arbitration and in the absence of the award having been passed or the mandate not having been terminated and the opposition as such to the appointment of substitute Arbitrator and oppose directions for him to continue are not justified in the facts and circumstances. 31. The challenge had also been raised to the order dated 16.08.2016 before the Apex Court which had been passed in OMP No.133 of 2016, whereby the Single Bench had directed to transmit the record of the case to the sole Arbitrator at the insistence of the present applicant. 32. It is thus apparent that in such circumstances, before the Apex Court the consent was given for setting aside of the order which led the passing of the order dated 25.08.2017 as noticed. Various efforts were made by the present applicant to get the matter revived and by filing firstly application bearing OMP No.427 of 2017 in Arbitration Case No.31 of 2004 for remitting the record, which was dismissed with liberty to file a fresh petition on 13.07.2018. The fresh application bearing OMP No.449 of 2017 in Arbitration Case No.31 of 2004 came to be filed for appointment of the new Arbitrator/substitute Arbitrator which eventually was dismissed with liberty to file a fresh application under Section 11(6) of the Arbitration and Conciliation Act, 1996 on 23.08.2019. The fresh petition was filed bearing Arbitration Case No.59 of 2020 under Section 11(6) of the Arbitration and Conciliation Act, 1996. The fresh petition was filed bearing Arbitration Case No.59 of 2020 under Section 11(6) of the Arbitration and Conciliation Act, 1996. The same was dismissed for different reasons regarding the lack of condoning the delay while allowing the objections of the original petitioner; that on earlier occasion an application has been dismissed as withdrawn regarding the condonation of delay and there was concealment of facts by the counsel. Merely, because the order was upheld by the Apex Court in Special Leave Petition (SLP) filed by the counsel for the petitioner, which was partly allowed on 22.01.2024 (Annexure R-I) would not bind the present-petitioner as apparently the present applicant was never even represented at that point of time and only the aggrieved counsel had appeared and even the petitioner as such was not put to notice. He had preferred the separate Special Leave Petition (Civil) bearing Diary No.23938 of 2024 and the same was disposed off on 08.07.2024 giving him liberty to exercise his rights in accordance with law. A perusal of the said order (Annexure P- 14) would show that the rights of the present petitioner were left open in accordance with law, by the Apex Court. 33. The present application bearing OMP No.1105 of 2024 in Arbitration Case No.31 of 2004, thereafter was filed expeditiously on 02.12.2024, noticing and highlighting the fact that the original petitioner, who is admittedly in possession of the Hotel has not even paid a single penny to the applicant and the case as such cannot be defeated on basis of these technicalities. The dispute has yet to be decided by passing an award on merits by the Arbitraor. It has further been mentioned that a sum of Rs.25,000/- had been directed to be paid while deciding the application for appointment of receiver by the then Arbitrator Hon’ble Mr. Justice R.L. Khurana (Retd.) which had to be paid w.e.f. 09.02.2009 and the amount, if quantified till 09.09.2024 worked out to Rs.47,25,000/- and the interest on the same @ 12% per annum after compounding principal was worked out to Rs.76,72,859/-, and not a single penny has been paid by Neelam Shukla. 34. The applicant-respondent is bound by the plea taken in the Special Leave Petition (SLP) which was against the sixth member Tribunal and the agreement that the claim no longer survived for adjudication, was not liable to be accepted. 34. The applicant-respondent is bound by the plea taken in the Special Leave Petition (SLP) which was against the sixth member Tribunal and the agreement that the claim no longer survived for adjudication, was not liable to be accepted. It is the malafide intention as such by the non-applicant and there was consent order passed in respect of a three Member Arbitral Tribunal not being appointed and the sole member would be appointed. Unfortunately, the Arbitrator had expired during the pendency of the arbitration proceedings and the controversy than started on a fresh line on a three Member Arbitral Tribunal being appointed by the then learned Single Judge which has led to unnecessary litigation. The matter had never been adjudicated upon on merits on account of various technicalities regarding whether fresh application should be filed or application in which case was required to be filed and the matter has been hanging fire since 2005. It is the settled principle that the Rules of Procedures are ‘Handmaids of justice’ and technicalities are not to stand on the way. The parties had agreed as such to resolve the disputes by way of getting the matter referred to an Arbitrator and had gone by the same and the award not having been passed, the original petitioner who herself had sought the matter to be referred to the Arbitral Tribunal, now cannot turn around that the matter is not liable to be referred. 35. The judgments relied by Mr. R.L. Sood, learned Senior Counsel for the non-applicant/petitioner that constructive res judicata as such would come into play on account of the earlier decisions. Placing reliance upon Asgar and Others case (supra), would be without any basis as admittedly there was no decision on merits of the claim inter se the parties and therefore the principle as such of res judicata would not come into play. It is only on account of technicality, the applicant has been forced to file various applications and separate petitions for the redressal of his grievances after the death of the original Arbitrator in the year 2015 and has been relegated from one Court to to the other since then. 36. However, the Apex Court has protected his interest vide order dated 08.07.2024 (Annexure P-14) giving him the liberty to exercise his right in accordance with law. 36. However, the Apex Court has protected his interest vide order dated 08.07.2024 (Annexure P-14) giving him the liberty to exercise his right in accordance with law. It is in such circumstances, the Court comes to the conclusion that the application filed under Section 15 sub-Section (2) and (3) of the Arbitration and Conciliation Act, 1996 is very much maintainable. 37. Reliance was placed upon the judgment in Kailash vs. Nanhku and Others, (2005) 4 SCC 480 also would be of not much help as the decision is pertaining to the election trial and the settled principle is that the election law is very strict in nature and therefore the effort as such made by the learned Senior Counsel that the claim as such was barred and not liable to be entertained is without any basis, keeping in view the peculiar facts and circumstances. 38. Similarly, reliance was also placed upon K.K. Modi case (supra) was also a case where findings were recorded that the two groups of the families as such were abusing the process of the Court and filing frivolous and vexatious proceedings and the Court had a power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. 39. It is thus of no help to the counsel for the non- applicant-petitioner. 40. In such circumstances, once the Apex Court had protected the interest of the applicant-respondent and clarified vide its order dated 08.07.2024 (Annexure P-14), keeping in view the background as such this Court does not see any reason as such why the present application should not be allowed and the main Arbitrator earlier appointed can continue with the proceedings, by giving a declaration as such in view of the provisions of Section 11(8) of the Arbitration and Conciliation Act, 1996. The learned Arbitrator so appointed, shall be entitled to fee as per stipulation contained in 4th Schedule appended to the Arbitration and Conciliation Act, 1996. 41. Resultantly, the records of the arbitration case titled Neelam Shukla Vs. Ram Pal Shukla be sent to the learned Arbitrator Hon’ble Mr. Justice Kuldip Singh Kanwar (Retired) for concluding the arbitration proceedings at the earliest. Keeping in view of the background of the case it need not be emphasized that in the present case, justice has not only been delayed but has been practically denied by the non-applicant/petitioner. 42. Ram Pal Shukla be sent to the learned Arbitrator Hon’ble Mr. Justice Kuldip Singh Kanwar (Retired) for concluding the arbitration proceedings at the earliest. Keeping in view of the background of the case it need not be emphasized that in the present case, justice has not only been delayed but has been practically denied by the non-applicant/petitioner. 42. All pending application(s), if any, shall stands disposed of.