AMWAY INDIA ENTERPRISES PVT. LTD. versus RAVINDRANATH RAO SINDHIA & ANR. on 4 March 2021

1. Leave granted.

2. This appeal arises out of a petition filed under Section 11(6) ofEthe Arbitration and Conciliation Act, 1996 [“Arbitration Act”] by therespondents in the Delhi High Court for appointment of a sole arbitrator.The brief facts of the case are noted in the impugned order dated03.12.2020 thus:

“2. The facts of the case, as noted from the petition are, in theFyear 1998, the petitioners were appointed as Distributor forrespondent for undertaking sale, distribution and marketing of itsproducts in India and were registered as Amway Business Owner(ABO)/ Amway Direct Seller (ADS), in the name of the soleproprietorship ‘Sindhia Enterprises’ with ABO No. 141935.According to the petitioners, they have set up a vast Line ofGSponsorship in the respondent Company, and nurtured andsupported close to 1500 ADSs, who have now set up their ownnetworks, and are in the category of Silver/ Gold/ Platinum/Sapphire/ Emerald. From 2015, the renewal process for existingADSs became automatic, each year, without payment of any fee.The respondent issued a Code of Ethics and Rules of Conduct in H

2015 to govern the terms of the relationship between therespondent and the ADSs. The respondent also started promotingregistration of Preferred Customers (PCs) directly through therespondent’s website, as customers of the concerned ADS.

3. On the requirement of the respondent, necessary documentswere executed by the petitioners including contract fordistributorship, setting out the terms and conditions of thedistributorship, and to inter alia confirm the Code of Ethics andRules of Conduct, Legal Entity Authorisation Form (LEAF) etc.Since then, the contract of the petitioners has been renewed fromtime to time. The petitioners recorded client volume/sales fromtheir ABO account. The petitioners have also received income onthe sales generated by them for the months of January to March,2019 by the respondent. However, in April, 2019, upon logginginto the respondent’s website, the petitioners noted that they couldnot access their ABO account, or view their LoS. They couldonly access their account as a PC. Accordingly, between April,2019 and December, 2019, the petitioners raised a query withtheir Major Accounts Manager, who informed them that theiraccount had been reclassified as a ‘PC’ account, since they havenot complied with the criteria of are corded re-sale relatedpurchase in the last 12 months. The petitioners learnt that thiswas a criteria in the fresh set of Terms and Conditions issued bythe respondent in December, 2016, which was mandatorily requiredto be accepted by all ADSs, by clicking on the ‘By clicking hereyou agree to abide by the new Terms & Conditions’ button,immediately upon logging in on the respondent’s website, toproceed further to their account. According to the petitioner, thisrequirement was never communicated to the petitioners in thepast, nor was any notice of termination issued by the respondent.This criterion is also in violation of the Direct Selling Guidelinesdated September 09, 2016.

4. The petitioners made repeated requests to restore their ABOaccount. The petitioners attempted to resolve the aforesaid disputesand differences amicably by mutual discussions with therepresentatives of the respondent from April till December, 2019.However, the respondent has failed to consider the petitioners’request for restoration of their ADS account. On June 26, 2020, AB

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the petitioners referred the matter for redressal and review toMr. Jon Sherk, Vice President and Deputy General Counsel ofAmway Global in January, 2020. The petitioners werecommunicated about the rejection of their request for restorationof their ADS account on June 26, 2020. According to the petitioners,the respondent has now, with effect from July, 2020 notified anew Code of Ethics & Rules of Conduct wherein the respondenthas now been given benefit of a 2 year period for establishingsales, in accordance with the DSG, and carved a provision forrestoration of the ADS account. Accordingly, the petitioners causedissuance of notice invoking arbitration dated July 28, 2020 to therespondent invoking the arbitration clause, Clause 12 of the Termsand Conditions enclosed with the Amway Direct Seller ApplicationForm (Form-SA-88-ID), which is reproduced as under:

“12. Dispute Settlement. The parties shall endeavour tosettle any dispute or difference arising out of or inconnection with the Direct Seller Contract through mutualdiscussions within 30 days of such dispute arising. TheDirect Seller agrees that in the event it is not satisfied byany decision of Amway, or in the event that any issue raisedby the Direct Seller has remained unresolved for a periodof more than two months, and / or during the subsistenceof this agreement or upon or after its termination, any issueor dispute that the Direct Seller may have regarding theinterpretation or operation of the clauses of thisarrangement or any issues arising there from shall bereferred to Grievance Redressal Committee set up by thecompany. Any dispute, difference or claim remainingunresolved post reference to the Grievance Redressalcommittee discussions shall be submitted to bindingarbitration under the provisions of the Indian Arbitrationand Conciliation Act, 1996. The venue of such arbitrationshall be at New Delhi and the award of the Arbitrator shallbe final and binding on all Parties. Subject to the above,courts at New Delhi shall alone have jurisdiction in relationto the Direct Seller Contract and matters connected hereto.”

5. The respondent replied vide letter dated August 20, 2020 whereinthe respondent communicated that the name of the Arbitrator as recommended by the petitioners was not acceptable by it andsought time to respond with the name of another Arbitrator.However, the respondent has till the filing of the petition failed toissue any follow up reply further to its reply dated August 20,2020 even after expiry of 30 days’ time.”

3. The main plea taken by the learned counsel appearing on behalfof the appellant, Amway India Enterprises Pvt. Ltd., in the Delhi HighCourt was that a petition before the High Court is not maintainable asthe dispute relates to an international commercial arbitration, beingcovered by Section 2(1)(f)(i) of the Arbitration Act inasmuch as therespondents are husband and wife who are both nationals of and habituallyresident in the United States of America. This plea was turned down bythe impugned judgment stating:

“23. Even the judgment of the Supreme Court in the case of TDMInfrastructure (P) Ltd. v. UE Development India (P) Ltd.,(2008) 14 SCC 271 is not applicable in the facts of this case,which have been noted above. Rather, the learned counsel for thepetitioners is justified in relying upon the judgment in the case ofLarsen & Toubro Ltd. – SCOMI Engineering Bhd v. MMRDA,(2019) 2 SCC 271, wherein the Supreme Court was concernedwith a consortium consisting of an Indian company and a foreigncompany and the Court took note of the fact that the office of anunincorporated entity, i.e. the consortium, being in Mumbai, asone of the factors for arriving at the conclusion that the arbitrationproceedings would not be international commercial arbitration.No doubt a sole proprietorship has no separate legal identity but inthe case in hand, two individuals, husband and wife, by joiningtogether as a proprietorship have taken a single Distributorship.The Code of Ethics and Rules of Conduct issued by the respondentunder Clause 3.17.1 contemplates and recognises that a husbandand wife shall operate their Distributorship as single entity. Theproprietorship is an association or body of individuals with centralmanagement in India.

24. The plea of Ms. Kumar that the petitioners being individualsand habitual residents of USA, the case shall be covered by Section2 (1) (f) (i) of the Act of 1996 is not appealing in view of myconclusion in the above paragraph.”

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A4. It was held that since the central management and control ofthis association or body of individuals is exercised only in India underSection 2(1)(f)(iii), the dispute is not an international commercialarbitration, as a result of which the High Court has jurisdiction underSection 11(6) to appoint an arbitrator. Justice Brijesh Sethi, a retiredJudge of the Delhi High Court was, therefore, appointed as sole arbitrator.B

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5. Shri Parag Tripathi, learned Senior Advocate appearing on behalfof the appellant, has argued that his predecessor’s plea in the High Courtwas incorrectly turned down in that this case is really governed by Section2(1)(f)(i) and not by Section 2(1)(f)(iii). Once it is found that a party toan arbitration agreement is an individual who is a national of, or habituallyCresident in, any country other than India, it is not necessary to go to anyother sub-clauses of Section 2(1)(f), and as it is clear that the respondents,who applied to the High Court under Section 11(6), are individuals whoare nationals of and habitually resident in the USA, would fall underSection 2(1)(f)(i), the High Court would have no jurisdiction, such petitionDhaving to be filed only under Section 11(6) read with Section 11(9) to theSupreme Court.

6. Ms. Manmeet Arora, learned counsel appearing on behalf ofthe respondents, has supported the judgment under appeal, and hasreferred to various documents which, according to her, make it clearEthat the respondents, husband and wife, would have to be pigeonholedunder “association or body of individuals” under Section 2(1)(f)(iii) andnot under Section 2(1)(f)(i).

7. The question lies in a very narrow compass. As rightlycontended by Ms. Arora, the documentary evidence in this case wouldFbe decisive of whether the requirements of sub-clause (i) to Section2(1)(f) have been met, in which case it is unnecessary to go to sub-clause (iii), as under Section 2(1)(f), “at least one of the parties” mustfall under sub-clauses (i) to (iv) of Section 2(1)(f).

8. In a document entitled “Code of Ethics of Amway DirectGSellers”, under “Rules of Conduct”, it is stipulated as follows:

“2.1.17 Legal Entity Authorisation Form” (LEAF) means thedocument that must, in addition to the Direct Seller Contract, becompleted by a Direct Seller required to or electing to operate anAmway Business in the name of an applicable legal entity.”

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“3.1 Application and Starter Guide: In order to be consideredfor an Amway distributorship, an individual(s) must, in his/her/their own name(s) or on behalf of a legal entity, submit a signed,completed Direct Seller Application(in Form SA-88-ID), togetherwith all required supporting documentation.

A distributorship may be taken up in individual capacity or as asole proprietorship concern, partnership firm or company. Amwayreserves the right to require that Applicants having Non-ResidentIndian (NRI), Person of Indian Origin (PIO) or Overseas Citizenof India (OCI) status operate distributorships via certain types oflegal entities.”

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“3.14 Legal Entity Distributorships: A Direct Seller may ownand operate his or her Distributorship as a sole proprietary concernor registered partnership firm or limited liability company (LLC),provided it complies with certain requirements and conditions. …”

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“3.14.5 The sole business of the legal entity must be the operationof an Amway Distributorship. No other business may be conductedby such an entity.”

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“3.17 Husband and Wife Distributorships: If both husbandand wife wish to become Direct Sellers, they must be sponsoredtogether for a single Distributorship. Husbands and wives maynot be sponsored in different Lines of Sponsorship. Husbandsand wives may not sponsor each other. If one spouseis already aDirect Seller, the other spouse,upon electing to become a DirectSeller,must join the same Distributorship as his orher spouse.

3.17.1 A husband and wife shall operate their Distributorship asa single entity. Therefore, each is held accountable for the actionsof the other so far as the Rules of Conduct are concernedregardless of whether a husband or wife is active in thedistributorship or not.”

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“4.13 Franchises and Territories: No Direct Seller shallrepresent to anyone that there are exclusive franchises or territoriesavailable under the Amway Sales and Marketing Plan.

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No Direct Seller shall represent that he or she, or anyone else hasthe authority to grant, sell, assign, or transfer such franchises orto assign or designate territories. No Direct Seller or Sponsormay state or imply that he or she has a given territory, nor thatany other Direct Seller is operating outside his territory.

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Amway Direct Sellers have no territorial limits. They can operateanywhere withinIndia.”

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“4.16 Exporting Amway Products: Amway Direct Sellers mustsell Amway products and/or sponsor prospective Amway DirectSellers within India only.No Direct Seller may export, or knowinglysell to others who exports, Amway Products from India, or fromany other country inwhich Amway has established operations,intoany country regardless of whether or not Amway is doing businessin that country.

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For important legal reasons, including tradenames and trademarkprotections; local lawson product registration, packaging, labellingEingredient content and formulation, product liability; customs andtax laws; and literaturecontent or language requirements.Amwaymust limit the resale of Amway Products by Direct Sellersto only other Direct Sellers orretail customers located withincountry in which the Direct Seller legitimately buys the AmwayFProducts and is authorised to do business. The term “products”includes, without limitation, all literature, sales aids, and any otheritems obtained by a Direct Seller from Amway or from his sponsoror Platinum.

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4.16.1 Exporting Rule: Personal Use

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4.16.1 Exporting Rule: Personal Use

Globally, Amway’s Rules and Commercial Principles includeprohibitions on exporting and importing Amway products fromone market to another.Amway Direct Sellers may, however,takeAmway products across borders for personal use, with thefollowing limitations:

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AMWAY INDIA ENTERPRISES PVT. LTD. v. RAVINDRANATH59RAO SINDHIA & ANR. [R. F. NARIMAN, J. ]•The Amway Direct Seller is visiting another country andApersonally places theproduct order in that country.

•The Amway Direct Seller physically picksup/receives theproducts in one country and personally carries the productsto another country. There may be no couriers,shippingcompanies, or freight forwardes involved.

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•If the Amway Direct Seller has a Multiple Business in thecountry visited, the order cannot be placed as a customerorder foran overseas customer.

•The products are for the Amway Direct Sellers personaluse only.

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•The products may not be resold, distributed, or given awayunder any circumstances.

•The products ordered must not be available in the AmwayDirect Seller’s homemarket.

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•Durables (e.g. water treatment systems,air treatmentsystems) may not be carriedfrom one market to anotherunder any circumstances.

•The Amway Direct Seller order must not be for more thana reasonable amount of product: under 300 USD annually.

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•The personal use exclusion may not beused as a business-building strategy.”

9. In what is referred to as the “Legal Entity Authorisation Form”,what was filled up was “Legal Entity Authorisation Form: SoleProprietor”. The said form which was filled in by the respondents readsas follows:

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“LEGAL ENTITY AUTHORISATION FORM:

SOLE PROPRIETORSHIP

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Where an Amway Independent Business (“Amway Business”)will be operated in India via a SoleProprietorship (the “Entity”)held by a Resident Indian, Non-Resident Indian (“NRI”), PersonofIndian Origin (“PIO”) or Overseas Citizen of India (“OCI”),the Sole Proprietorship must, throughthe sole proprietor (the “SoleProprietor”), complete this Legal Entity Authorisation Form for H

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AAmway Business Owners (the “Entity Agreement”) and submitit to Amway India EnterprisesPvt. Ltd. (“AIE”). The SoleProprietor must agree to remain and ensure that the Entity remainsinfull compliance with the Rules of Conduct for Amway BusinessOwners. This Entity Agreement shall become effective if andwhen AlE signs the completed form. This Entity Agreement inBcorporated into and forms an integral part of the AmwayDistributor Agreement, which includesany and all documentsincorporated therein (the “ABO Contract”). In the event of anyconflict,the terms and conditions of this Entity Agreement shallprevail.

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“5. The Sole Proprietor agrees that :

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A. The sole purpose of the Entity is to own and operate the AmwayBusiness identified above, unless AIE expressly allows the Entityto own and operate more than one Amway business. Neither theEntity nor the Sole Proprietor will own or operate any otherBbusiness or business interest.

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C. Any NRI, PIO or OCl investment in the Entity, if and asapplicable, has been made on a non-repatriatable basis inaccordance with applicable foreign exchange laws of India.

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G. The Entity shall, in accordance with the laws of India and forall matters connected to the Amway Business, exclusively use aduly authorised Indian rupee bank account which, if applicable,operates on a non-repatriatable basis.

H. The Sole Proprietor shall be responsible for his or her, and theEntity’s, compliance with the Amway Rules of Conduct and theapplicable laws with respect to the operation of the AmwayBusiness by the Entity, including foreign exchange laws. Anyviolation of the aforesaid entitles AIE to terminate the ABOContract and the Entity Agreement.

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10. Under “authorised signature”, the entity’s name was filled inas Sindhia Enterprises and the proprietor was filled in as RavindranathRao Sindhia (respondent no. 1 herein). This was done pursuant to anapplication again filed in a printed form, given by the appellant to therespondents, which reads as follows:

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11. A reading of the application form as filled in, together with theCode of Ethics, would show that a distributorship may be taken up eitherDin individual capacity, a sole proprietorship concern, partnership firm, orcompany. When it comes to a husband and wife’s distributorship, theyare entitled not to two, but to a single distributorship, it being made clearunder clause 3.17 of the Code of Ethics that they are to operate only asa single entity. The form that was filled in made it clear that therespondents applied to become a distributor as a sole proprietorship, itEbeing made clear that the husband, Ravindranath Rao Sindhia, was thesole proprietor / “primary applicant”, the wife, Indumathi Sindhia, beinga “co-applicant”.

12. However, Ms. Arora argued, from a reading of the Code ofEthics and correspondence between the parties, that there was noFinternational flavour whatsoever to the transaction as the business thatis to be conducted can be conducted only in India, an exception beingmade only for personal use under clause 4.16.1. Most importantly, theaddress of the so-called sole proprietorship in all the correspondencebetween the parties was the address of the Bangalore office of the soleGproprietorship.

13. Ms. Arora also strongly relied upon the judgment of this Courtin Larsen & Toubro Ltd.–SCOMI Engineering Bhd v. MMRDA,(2019) 2 SCC 271. This Court was concerned with an agreementbetween the MMRDA, an Indian company, and a consortium of LarsenHand Toubro, an Indian company together with Scomi Engineering Bhd, a AMWAY INDIA ENTERPRISES PVT. LTD. v. RAVINDRANATHRAO SINDHIA & ANR. [R. F. NARIMAN, J. ]

Malaysian company. The argument that was pressed in the appeal beforethis Court was that since a Malaysian company was involved, it wouldbe a body corporate which is incorporated in a country other than India,which would attract the provisions of Section 2(1)(f)(ii) of the ArbitrationAct. This Court repelled the aforesaid argument, stating:

“9. Under the general conditions of contract, the “contractor”, inClause 1.1.2.3 is defined as meaning an individual, firm, company,corporation, joint venture or Consortium, whether incorporatedor not. “Bidder” is also defined under Clause 1.1.2.10 as meaningan individual, firm, company, corporation, joint venture orConsortium which could submit a bid. What is important to noticeis that the contract was signed by the employer viz. MMRDA andby the contractor under the head sub-clauses (A) and (B) in whichL&T India signed as ‘A’ and Scomi Engineering Bhd has signedas ‘B’. When we come to the consortium agreement that is enteredinto between the Indian company and the Malaysian company asaforestated, we find in the definition clause that “Consortium”shall mean L&T and Scomi Engineering Bhd, acting incollaboration, for the purpose of this agreement and shall be called“the L&T-SEB” Consortium “unincorporated”. The contract isdefined in Sub-Clause 6 as meaning, “the contract to be enteredby the Consortium with the employer for the execution of theProject”. Under Sub-Clause 7, “the lead Member of theConsortium” or “Consortium Leader” shall mean L&T, that is,the Indian Company. Under Sub-Clause 8, the “Supervisory Board”(hereinafter referred to as “the SB”) shall mean a Boardconstituted under Clause 11 of the GCC. When we come to Clause11.2, it is clear that the Members of this Supervisory Board willconsist of four members, two appointed by each Member. One ofthe Members nominated by the Consortium leader and agreed toby all members shall then act as the Chairman of the SupervisoryBoard, which is, by Clause 11.5, to decide on various mattersrelating to the execution of the contract. Clause 21.1(g) providesthat the Consortium leader shall lead all arbitration proceedings.

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11. It is important, at this juncture, to refer to an order made bythe High Court of Bombay dated 20-10-2016 [L&TLtd. v. MMRDA, 2016 SCC OnLine Bom 13348] which, as has A

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been stated earlier, arises between the self-same parties, underthe same contract. An interim award made by the arbitrators quadifferent claims arising under the same contract had made it clearthat the claim could be filed only in the name of the Consortiumand not separately, as was contended by Shri Jain’s client. Thepreliminary issue framed on this count was “whether the claimantsare entitled to file this claim as Claimant 1 and Claimant 2 or onlyas the Consortium of L&T and Scomi Engineering Bhd?” TheHigh Court of Bombay agreed with the interim award of thearbitrators, and held as follows: (L&T Ltd. case [L&TLtd. v. MMRDA, 2016 SCC OnLine Bom 13348] , SCC OnLineBom para 10)

“10. Considering the terms and conditions of the contract as wellas the decision cited by Mr. Ankhad, in my opinion, in the factsand circumstances of the present case, it is not open for thepetitioners to rely upon their independent identities while dealingwith the respondent and that they will have to deal with therespondent as a Consortium only. Therefore, there is no infirmityin the impugned order. For the same reason the present petitionas filed would also not been maintainable. Hence, the same isdismissed.”

12. Shri Gopal Jain did not dispute the fact that this judgment wasfinal inter-partes as no appeal has been preferred. Therefore, tostress the fact that it pertains only to “this claim” and wouldtherefore, not apply to a different set of claims under the arbitrationclause is not an argument that appeals to us.

13. It is clear, as has been held by the judgment [L&T Ltd v.MMRDA, 2016 SCC OnLine Bom 13348] of the High Court ofBombay, and which is binding inter-partes, that it is not open forthe petitioner to rely upon their status as independent entities whiledealing with the respondent and they will have to deal with therespondent as a Consortium only.

14. This being the case, it is clear that the unincorporated“association” referred to in Section 2(1)(f)(iii) would be attractedon the facts of this case and not Section 2(1)(f)(ii) as the Malaysianbody cannot be referred to as an independent entity following the judgment [L&T Ltd. v. MMRDA, 2016 SCC OnLine Bom 13348]of the High Court of Bombay.

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18. This being the case, coupled with the fact, as correctly arguedby Shri Divan, that the Indian company is the lead partner, andthat the Supervisory Board constituted under the consortiumagreement makes it clear that the lead partner really has thedetermining voice in that it appoints the Chairman of the said Board(undoubtedly, with the consent of other members); and the factthat the Consortium’s office is in Wadala, Mumbai as also that thelead member shall lead the arbitration proceedings, would all pointto the fact that the central management and control of thisConsortium appears to be exercised in India and not in any foreignnation.”

14. This case is distinguishable on facts, inasmuch as a finaljudgment between the parties made it clear that it would not be open forthe consortium to rely upon their status as independent entities whiledealing with MMRDA. This being the case, the consortium was held tobe an association of persons falling under Section 2(1)(f)(iii), and thatsince the lead member is to lead arbitral proceedings, the centralmanagement and control of the consortium being exercised by Larsenand Toubro in India, it was held that Section 2(1)(f)(iii) would not beattracted on the facts of that case.

15. By way of contrast, we have seen how the respondents havethemselves applied to become distributors of Amway products in Indiaas a sole proprietorship concern under the relevant forms issued by theappellant, read with the Code of Ethics referred to hereinabove. In AshokTransport Agency v. Awadhesh Kumar, (1998) 5 SCC 567, this Courthas clearly held that a sole proprietary concern is equated with theproprietor of the business as follows:

“6. A partnership firm differs from a proprietary concern ownedby an individual. A partnership is governed by the provisions ofthe Indian Partnership Act, 1932. Though a partnership is not ajuristic person but Order XXX Rule 1 CPC enables the partnersof a partnership firm to sue or to be sued in the name of the firm.A proprietary concern is only the business name in which theproprietor of the business carries on the business. A suit by or A

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Aagainst a proprietary concern is by or against the proprietor of thebusiness. In the event of the death of the proprietor of a proprietaryconcern, it is the legal representatives of the proprietor who alonecan sue or be sued in respect of the dealings of the proprietarybusiness. The provisions of Rule 10 of Order XXX which makeapplicable the provisions of Order XXX to a proprietary concern,Benable the proprietor of a proprietary business to be sued in thebusiness names of his proprietary concern. The real party who isbeing sued is the proprietor of the said business. The said provisiondoes not have the effect of converting the proprietary businessinto a partnership firm. The provisions of Rule 4 of Order XXXChave no application to such a suit as by virtue of Order XXX Rule10 the other provisions of Order XXX are applicable to a suitagainst the proprietor of proprietary business “insofar as the natureof such case permits”. This means that only those provisions ofOrder XXX can be made applicable to proprietary concern whichcan be so made applicable keeping in view the nature of the case.D

7. In the present case A.C. Basu, Proprietor of Ashok TransportAgency, had died before the date of the institution of the suit andon the date of the institution of the suit, the proprietary concernwas not in existence. Only the legal representatives of A.C. Basucould be sued with regard to any cause of action arising againstEA.C. Basu in connection with the proprietary business. We find itdifficult to understand how the provisions of Rule 4 Order XXXCPC, could be extended to such a case.”

16. In this view of the matter, the argument that there is nointernational flavour to the transaction between the parties has no legsFto stand on. Indeed, an analysis of Section 2(1)(f) would show thatwhatever be the transaction between the parties, if it happens to beentered into between persons, at least one of whom is either a foreignnational, or habitually resident in, any country other than India; or by abody corporate which is incorporated in any country other than India; orGby the Government of a foreign country, the arbitration becomes aninternational commercial arbitration notwithstanding the fact that theindividual, body corporate, or government of a foreign country referredto in Section 2(1)(f) carry on business in India through a business officein India. This being the case, it is clear that the Delhi High Court had nojurisdiction to appoint an arbitrator in the facts of this case.H

AMWAY INDIA ENTERPRISES PVT. LTD. v. RAVINDRANATHRAO SINDHIA & ANR. [R. F. NARIMAN, J. ]

17. Ms. Arora made an impassioned plea to this Court to use itspower under Article 142 of the Constitution to straightaway appoint anarbitrator, now that the matter is before this Court. We are afraid wecannot countenance such a suggestion as the respondents would haveto now follow the drill of Section 11(6) read with Section 11(9) of theArbitration Act.

18. The appeal is allowed, and the judgment under appeal is setaside.

Ankit Gyan

Appeal allowed.

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