. ' APHC010078572025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI FRIDAY, THE FOURTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT HON’BLE SRI JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE ARBITRATION APPLICATION NO: 6 OF 2025 Between: 1. SEW Vizag Coal Terminal Pvt. Ltd, O/a.6-3-871, Greenlands Road, Begumpet, Hyderabad-500016, Telangana. 2. SEW Infrastructure Limited (SEW) and Pembinaan Redzai Sdn. Bhd, O/a.6-3-871, 'SNEHALATA', Greenlands Road, Begumpet, Hyderabad- 500016, Telangana. 3. SEW Infrastructure Ltd, O/a.6-3-871, 'SNEHALATA', Greenlands Road, Begumpet, Hyderabad-500016, Telangana. (Applicant No.1 to 3, represented by Ch.Gowri Sankara Rao, Deputy General Manager and Authorized Signatory) SNEHALATA', ...Applicants AND Board of Trustees for the Port of Visakhapatnam, Rep. by its Secretary and Attorney to the Board, Administrative Office Building, Port Area, Visakhapatnam-530035, Andhra Pradesh. * ...Respondent Application filed under Section 11 (5) & (6) of the Arbitration and Conciliation Act, 1996 read with Para (3) (i) (c) of Scheme for Appointment of Arbitrators, 2000 for a) appointment of any person as the Second Arbitrator, which the Court at its discretion deems fit and proper; and ■'t ■ b) Award costs of the present proceedings in favour of the Applicants and against the Respondent. Counsel for the Applicants: Dr. P.V.Amarnadha Prasad, representing Sri Posani Akash Counsel for the Respondent: Sri P.Sri Ram The Court made the following: t-' APHC010078572025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3441] ARBITRATION APPLICATION NO: 6 of 2025 Sew Vizag Coal Terminal Pvt. Ltd and Others ...Applicant(s) Vs. Board of Trustees for the port of Visakhapatnam ...Respondent ********** Advocate for Applicants: Dr. P. V. Amarnadha Prasad representing Mr. Posani Akash Advocate for Respondent: Mr. P Sri Ram CORAM :THE CHIEF JUSTICE DHIRAJ SINGH THAKUR DATE : 04*^ July 2025 PC : The present arbitration application is filed seeking the appointment of an arbitrator on account of the demise of Sri Justice M. Jagannadha Rao, who was nominated as an arbitrator by the non-applicant herein. 2. It is stated that a memo, dated 10.12.2024, was filed by the applicants before the Arbitral Tribunal intimating it about the vacancy created on account of the demise of Sri Justice M. Jagannadha Rao with a request that the Tribunal, with the existing members, consider reserving the matter for orders to avoid delay and additional cost on 2 HCJ Arb_AppL6j025 account of the reconstitution of the Tribunal inasmuch as both the parties had completed their respective arguments and the case was at the stage of submission of final synopsis by the respondent, while Sri Justice M. Jagannadha Rao was still a part of the Arbitral Tribunal. 3. The presiding arbitrator vide email, dated 12.12.2024, is stated to have directed the non-applicant to respond to the memo, dated 10.12.2024, which however did not result in nomination of an arbitrator by the non-applicant. It is in those circumstances that the applicants claim that since the non-applicant had failed in its obligation to take further steps to fill up the vacancy on account of the death of the arbitrator nominated by it earlier, the right to fill up the vacancy had been lost and therefore, the present application. since 4. Notwithstanding the fact that the averments made application are primarily aimed at seeking a direction for appointment of a second arbitrator, yet learned counsel for the applicants mostly made submissions with regard to authorizing the existing members of the Arbitral Tribunal to render the Award. Reference in this regard was made to clause 19.3 of the Agreement containing the arbitration clause, which reads as under; in the • •• The arbitration shall be invoked by one party issuing to the other a notice in writing invoking the arbitration and appointing an Arbitrator. Upon receipt of the notice, the other 3 .. HCJ Arb_Appt_6_2025 party shall appoint the second arbitrator. The two arbitrators so appointed shall appoint the third arbitrator who shall act as the ‘Presiding Arbitrator’. If the other party fails to appoint a second arbitrator within 30(thirty) days from the receipt of the request to do so, then the arbitrator so appointed by the first party shall adjudicate the disputes as Sole Arbitrator.” 5. The arbitration clause on which reliance has been placed by learned counsel for the applicants does not in any manner support buttress its claim that the Award could be rendered by an Arbitral Tribunal consisting of two arbitrators as it exists today. In any case, prayer made in the application is quite different from what was urged by learned counsel for the applicants during the course of arguments, which otherwise is impermissible. or It has been brought to the notice of this Court that during the pendency of the present application, non-applicant has since nominated Sri Justice Aftab Alam, former Judge of the Supreme Court of India. Learned counsel for the applicants urged that even when the applicants had nothing against the nominated arbitrator, yet on a principle of law, it was stated that no such nomination could be accepted inasmuch as the same was made beyond the period of thirty days as is otherwise envisaged under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter, referred to as “the Act”). 6. 4 HCJ Arb_AppL6j025 The Supreme Court in Datar Switchgears Ltd v. Tata Finance Ltd and another^ held that insofar as Section 11(6) is concerned, no time limit has been prescribed as against the thirty days period prescribed under Section 11(4) and 11(5) of the Act. It was held that in a arising under 11(6), if the opposite party had not made appointment within thirty days of the demand, the right to make appointment was not forfeited but continues, but an appointment has to be made before the former files an application under 11(6) of the Act, only then the right of the other party ceases. What the Supreme Court said is reproduced hereunder: case an “So far as cases falling under Section 11 (6) are concerned - such as the one before us -- 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. In our view, 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 . 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. We do not, therefore, agree with the observation in the above judgments that if the appointment is not made within 30 days of demand right to appoint an arbitrator under Section 11(6) is forfeited.” an the ^ (2000) 8 see 151 5 HCJ Arb_Appl_6_2025 What is important to note here is that there has to be a demand by the opposite party requiring the nomination of the arbitrator by the other contracting party. In the present case, this demand by the applicants to the non-applicant herein is conspicuously absent as the applicants had instead filed the memo with the Arbitral Tribunal to continue with the existing arbitrators and render the Award. In my opinion, the right of the non-applicant to nominate their arbitrator in this case would therefore continue to subsist notwithstanding the fact that subsequent nomination by the non applicant was after the filing of the present application before this Court. Be that as it may, since the non-applicant has already nominated its arbitrator, it shall be open to the Arbitral Tribunal to proceed in accordance with law. The Arbitration Application is, accordingly disposed of. Pending miscellaneous applications, if any, shall stand closed. No costs. Sd/- S.V.S.R.MURTHY JOINT REGISTER SECTION OFFICER //TRUE COPY// To, (Judicial), High Court of Andhra Pradesh, Amaravati. 2. One CC to Sri Posani Akash, Advocate [OPUC] 3. One CC to Sri P.Sri Ram, Advocate [OPUC] 1. The Registrar 4. The Board of Trustees for the Port of Visakhapatnam, Rep. by its Secretary and Attorney to the Board, Administrative Office Building, Port Area, Visakhapatnam-530035, Andhra Pradesh. 5. The Section Officer, O.S. Section, High Court of Andhra Pradesh at Amaravati. 6. Two CD Copies BSV vna HIGH COURT DATED:04/07/2025 ORDER ARBAPPL NO. 6 OF 2025 ^ Current Section . DISPOSING OF THE ARBITRATION APPLICATION WITHOUT COSTS