ACC LIMITED (FORMERLY KNOWN AS THE ASSOCIATED CEMENT CO. LTD.)versusGLOBAL CEMENTS LTD.

                    [2012] 6 S.C.R. 215


       ACC LIMITED (FORMERLY KNOWN AS THE                         A
            ASSOCIATED CEMENT CO. LTD.)
                             v.
                 GLOBAL CEMENTS LTD.
      (Special Leave Petition (C) No. 17689 of 2012)
                       JUNE 11, 2012                              B

     [K.S. RADHAKRISHNAN AND JAGDISH SINGH
                   KHEHAR, JJ.]

     Arbitration and Conciliation Act, 1996 - s. 11 -             C
Appointment of arbitrator - Death of named arbitrator in the
arbitration clause in the agreement - Application for
appointment of a substitute arbitrator - Validity of the
arbitration agreement - Held: The intention of the parties to
enter into an arbitration agreement can be clearly gathered       D
from the arbitration clause of the Agreement - Expression "at
any time" used in the arbitration clause has nexus only to the
time frame within which the question or dispute or difference
arises between the parties be resolved - Arbitration clause
has no nexus with the life time of the named arbitrator -         E
Arbitration clause does not prohibit or debar, the parties in
appointing a substitute arbitrator in place of the named
arbitrators and, in the absence of any prohibition or
debarment, parties can persuade the court for appointment
of an arbitrator under the arbitration clause of the agreement    F
- Thus, the High Court justified in entertaining an application
for appointment of a substitute arbitrator to adjudicate the
dispute between the parties.

     Parties entered into an agreement containing an
arbitration clause 21 for reference of any dispute between        G
them to an arbitrator. Respondent sought reference of the
dispute to an arbitrator. By that time the two nominated
arbitrators under clause 21 had expired. The respondent
filed an application under Section 11 of the Arbitration
                             215                                  H
    216       SUPREME COURT REPORTS            [2012] 6 S.C.R.


A and Conciliation Act, 1996 seeking appointment of a
  substitute arbitrator. The High Court entertained the
  application under Section 11 and appointed a substitute
  arbitrator to adjudicate the dispute between the parties.
  Therefore, the appellant filed the instant Special Leave
s Petition.
          Dismissing the Special Leave Petition, the Court

         HELD: 1.1. Section 14 of the Arbitration and
    Conciliation Act, 1996 provides for the circumstances in
C   which the mandate of the 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 or the
D   parties agree to terminate his mandate. 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
E   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
F   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
G   substitute arbitrator, even if the agreement does not
    specifically say so. [Para 14] [224-F-H; 225-A-B]

         Yashwitha Constructions (P.) Ltd. v. Simplex Concrete
    Piles India Ltd. (2006) 6 SCC 204: 2006 (3) Suppl. SCR 96
    - referred to.
H
ACC LTD. (FORMERLY KNOWN AS THE ASSTD. CEMENT CO. 217
            LTD.) v. GLOBAL CEMENTS LTD.

    1.2. Sections 14 and 15 provide the grounds for              A
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        B
per the rules that were applicable to the appointment of
the arbitrator bein_g replaced. Section 15(2), therefore, has
to be given a liberal interpretation so as to apply to all
possible circumstan~es under which the mandate may be
terminated. Section 11 (6) would not apply only if it is         c
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. [Paras 15, 17] [225-        0
C-E; 226-A-B]                                             \
    San-A Trading Company Ltd. v. IC Textiles Ltd. (2006)
Arb. LR 11 - referred to.

    1.3. The legislative policy embodied in Sections 14          E
and 15 of the Act is to facilitat' 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
persuadjng or pressurising the parties to resolve the            F
dispu,te ·py a substitute arbitrator. Generally, this stands
out as an exception and that should be discernible from
the language of the aroitration clause and the intention
of the parties. In the absence--of such debarment or
prohibition of appointment of a substitute arbitrator, the       G
court's duty is to give effect to the policy of law that is to
promote efficacy of arbitra,tion. [Para 18] [226-B-D]

    Situ Sahu and Ors.. v. State of Jharkhand and Ors. (2004)
8 SCC 340i 2004 (4) Suppl. SCR 258; lbrahimpatnam Taluk
Vyavasaya Cootie Sanghem v. K. Suresh Reddy and Ors.             H
    218      SUPREME COURT REPORTS              [2012] 6 S.C.R.


A AIR 2003 SC 3592: 2003 (2) Suppl. SCR 698; New Delhi
  Municipal Committee v. Life Insurance Corporation of India
  and Ors. (1977) 4 SCC 84: 1978 (1) SCR 279 - referred to.

         1.4. The time factor mentioned in the arbitration
8   clause "at any time" is a clear indication of the intention
    of the parties and is used in various statutory provisions
    as well and the meaning of the same has been interpreted
    by this Court in various judgments. The words "at any
    time" which appear in Clause 21 of the arbitration clause
C   in the Agreement dated 16.12.1989, is of considerable
    importance. "At any time" expresses a time when an
    event takes place expressing a particular state or
    condition that is when the dispute or difference arises.
    The arbitration clause 21 has no nexus with the life time
    of the named arbitrator. The expression "at any time"
D   used in the arbitration clause has nexus only to the time
    frame within which the question or dispute or difference
    arises between the parties be resolved. Those disputes
    and differences could be resolved during the life time of
    the named arbitrators or beyond their life time. The
E   incident of the death of the named arbitrators has no
    nexus or linkage with the expression "at any time" used
    in clause 21 of the Agreement. The time factor mentioned
    therein is the time within which the question or dispute
    or difference between the parties is resolved as per the
F   Agreement. Arbitration clause would have life so long as
    any question or dispute or difference between the parties
    exists unless the language of the clause clearly
    expresses an intention to the contrary. The question may
    also arise in a given case that the named arbitrators may
G   refuse to arbitrate disputes, in such a situation also, it is
    possibl~ for the parties to appoint a substitute arbitrator
    unless the clause provides to the contrary. Objection can
    be raised by the parties only if there is a clear prohibition
    or debarment in resolving the question or dispute or
H   difference between the parties in case of death of the
ACC LTD. (FORMERLY KNOWN AS THE ASSTD. CEMENT CO. 219
            LTD.) v. GLOBAL CEMENTS LTD.

named arbitrator or their non-availability, by a substitute      A
arbitrator. [Para 19, 21] [226-E; 228-A-F]

     1.5. The intention of the parties to enter into an
arbitration agreement can clearly be gathered from clause
21 of the Agreement. Clause 21 does not prohibit or
                                                                 8
debar the parties in appointing a substitute arbitrator in
place of the named arbitrators and, in the absence of any
prohibition or debarment, parties can persuade the court
for appointment of an arbitrator under clause 21 of the
agreement. The High Court was justified in entertaining          C
such an application and appoin~ing a former Judge of
this Court as a sole arbitrator under the Arbitration and
Conciliation Act, 1996 to adjudicate the dispute and
difference between the parties. [Paras 11, 22 and 23] [224-
A-B; 228-G-H; 229-A]
                                                                 D
    Jagdish Chander v. Ramesh Chander (2007) 5 SCC
719: 2007 (5) SCR 720 - referred to.
                     Case Law Reference:
    2007 (5) SCR 720            Referred to.       Para 12       E
    2006 (3) Suppl. SCR 96 . Referred to.          Para 14
    (2006) Arb.LR 11            Referred to.       Para 16
    2004 (4) Suppl. SCR 258 Referred to.           Para 19       F
    2003 (2 ) Suppl. SCR 698Referred to.           Para 20
    1978 (1) SCR 279            Referred to.       Para 20

    CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
17689 of 2012.                                                   G

    From the Judgment & Order dated 8.5.2012 of the High
Court of Judicature at Bombay in Arbitration Application No. 7
of 2012.
                                                                 H
    220        SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A         S. Ganesh, U.A. Rana, M. Mazumdar (for Gagrat & Co.)
    for the Petitioner.

          The Judgment of the Court was delivered by

        K.S. RADHAKRISHNAN, J. 1. The question that falls for
B consideration in this case is whether on the death of a named
  arbitrator, the arbitration agreement survives or not.

          2. At the very outset, let us refer to the relevant arbitration
    clause in the agreement dated 16.12.1989, which reads as
c   follows:

          "21. If any question or difference or dispute shall arise
          between the parties hereto or their representatives at any
          time in relation to or with respect to the meaning or effect
          of these presents or with respect to the rights and liabilities
D         of the parties hereto then such question or dispute shall
          be referred either to Mr. N.A. Palkhivala or Mr. D.S. Seth,
          whose decision in the matter shall be final and binding on
          both the parties." (emphasis added)

E      3. The petitioner submits that both Shri N.A. Palkhivala and
  Shri D.S. Seth are no more and therefore the arbitration clause
  in the agreement does not survive. It was pointed out that Shri
  N.A. Palkhivala was named in the agreement since he was the
  Chairman of the petitioner company and Shri D.S. Seth was
F named in the agreement since he was the Director of the
  company. Both of them were nominated as arbitrators since
  they were closely associated with the company and also due
  to their eminence, impartiality and familiarity in all commercial
  transactions and the corporate laws. The petitioner submits that
G since the arbitrators are no more, the arbitration clause in the
  agreement has no life and hence there is no question of
  entertaining the application preferred under Section 11 of the
  Arbitration and Conciliation Act, 1996 (for short 'the Act') filed
  by the respondent.
H
ACC LTD. (FORMERLY KNOWN AS THE ASSTD. CEMENT CO. 221
 LTD.) v. GLOBAL CEMENTS LTD. [K.S. RADHAKRISHNAN, J.]

     4. The respondent, (applicant before the High Court),            A
refuted those contentions and submitted before the High Court
that the arbitration clause in the agreement would survive even
after the death of the named arbitrators and the parties can still
resolve their difference or dispute by referring them to another
arbitrator or move the court for appointing a substitute arbitrator   B
wtiose decision would be final and binding on both the parties.

     5. Bombay High <;;ourt entertained the application
preferred by the respondent under Section 11 of the Act. The
Court took the view that clause 21 of the Agreement did
constitute an agreement to refer disputes to arbitration and also
                                                                      c
took the view that in the absence of any prohibition or
debarment, there is 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. The court           D
took the view unless the parties have expressly precluded such
a course being followed, give effect to the policy of the law,
which is to promote the efficacy of arbitration and the efficacy
of commercial arbitration must be preserved particularly when
business dealings are based on an agreement which provides            E
recourse to arbitration. The designated Judge of the High Court
appointed Mr. Justice S.N. Variava, former Judge of this Court
as an arbitrator to adjudicate the dispute and difference
between the parties. Legality of that order is under challenge
before us.                                                            F
      6. Mr. S. Ganesh, Senior Advocate appearing for the
petitioner explained the circumstance under which Shri N.A.
Palkhivala as well as Shri D.S. Seth was nominated as
arbitrators in the arbitration clause of the Agreement dated          G
16.12.1989. Learned senior advocate pointed out that Shri
N.A. Palkhivala was an eminent jurist of high reputation and he
was the former Chairman of the applicant's company and the
parties had specifically named him as an arbitrator because
of his familiarity and m-depth knowledge of arbitration law as
                                                                      H
    222      SUPREME COURT REPORTS               [2012] 6 S.C.R.


A well as corporate law. Learned senior counsel also pointed out
  that Shri D.S. Seth was appointed since he was the former
  Director of the applicant's company and was familiar with the
  commercial transactions and he was also instrumental in
  dealing with the various issues between the parties. Learned
B counsel pointed out because of the special nature of the
  appointment of both Shri N.A. Palkhivala and Shri D.S. Seth,
  the parties wanted their difference or dispute to be resolved
  only by those named arbitrators and on their death, the
  arbitration clause in the agreement would not survive. Learned
c counsel pointed out that that was the intention of the partiesand
  the same is clearly discernable from the facts of the case and
  the terms of the arbitration Clause in the agreement. Parties,
  it was pointed out, never intended to refer the dispute to any
  other arbitrator except the named arbitrator and such an
D inference can be drawn from Clause 21 and the facts of the
  case. Learnedcounsel also pointed out that in the above
  circumstances, Section 15(2) of the Act has no application and
  the High Court has committed an error in entertaining the
  application under Section 11 appointing a substitute arbitrator.

E FACTS

       7. The petitioner by way of Agreement dated 16.12.1989
  transferred land admeasuring 53 acres 33 Gunthas and land
  admeasuring 100 acres 01 Gunthas with buildings and Mining
F Leases granted by the Government of Gujarat in or under lands
  admeasuring 423.22 hectares, 21.121 hectares and 4.7551
  hectares to the respondent. By Orders dated 24.01.2002 and
  03.02.2003, the Collector, Porbander as well as
  Secretary(Appeals), Revenue Department, State of Gujarat
G held that the petitioner had committed breach of condition Nos.
  3, 4 and 5 of the order of 1993 and condition Nos. 8 & 11 of
  Lease Agreement dated 15.03.1982 and that the said lands
  were transferred to the respondent without prior permission of
  the Collector and as such the petitioner had committed breach
  of the conditions of order/lease agreement. The Collector,
H
 ACC LTD. (FORMERLY KNOWN AS THE ASSTD. CEMENT CO. 223
  LTD.) v. GLOBAL CEMENTS LTD. [K.S. RADHAKRISHNAN, J.]

therefore, resumed possession of the aforesaid lands.                  A
Aggrieved by those orders, the petitioner had filed Special Civil
Applications bearing Nos. 1975 of 2003 and 1972 of 2003 inter
alia challenging the orders passed by the Collector, Porbander
and Secretary (Appeals) before the High Court of Gujarat. The
respondents were made parties in the above proceedings, the            B
predecessor in title of the respondent neither initiated any
proceedings against the petitioner nor challenged those orders
of the Collector, Porbander or the Secretary (Appeals).
Therefore, the Special Civil Applications were dismissed by the
High Court on 15.12.2009 and appeals were not preferred                c
against the said judgment and no proceedings were initiated
by the respondent as well.

     8. The respondent later sent a lawyer notice to the
petitioner seeking reference of the dispute to an arbitrator
involving Clause 21 of the Agreement. By a letter dated                D
08.10.2011, the respondent sought to propose the names for
appointment as a Sole Arbitrator on the ground that the two
nominated arbitrators under clause 21 had expired.

     9. The petitioner through their lawyer replied vide letter        E
dated 07.12.2011 objecting to the appointment of a substitute
arbitrator on the ground that the arbitration clause 21 of the
Agreement did not provide for the appointment of any other
arbitrator and that was the intention of the parties. It was pointed
out that on the death of the two named arbitrators, the arbitration    F
clause itself would come to an end and there is no question of
appointing another arbitrator to resolve the question or dispute
or difference between the parties.

    10. We have examined closely arbitration clause 21 of the
Agreement dated 16.12.1989 as well as various letters                  G
exchanged between the parties and ascertained the intention
of the parties from the facts.


                                                                       H
    224       SUPREME COURT REPORTS                 [2012] 6 S.C.R.

A   REASONING AND CONCLUSION:

        11. Clause 21 of the Agreement indisputably is an
  arbitration agreement which falls under Section 7 of the Act.
  The intention of the parties to enter into an arbitration
8 agreement can therefore clearly be gathered from clause 21
  of the Agreement. Clause 21 clearly indicates an agreement
  on the part of the parties to refer the disputes to the named
  arbitrators in theAgreement.

        12. This Court in Jagdish Chander v. Ramesh Chander
c [(2007) 5 sec 719] in a clear exposition of law has laid down
  the principles to be borne in mind while interpreting an
  arbitration agreement under Clause 7 of the Act. Existence of
  an agreement is not in dispute, the question is about its
  enforceability on the death of the named arbitrators. Facts
D 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 thetwo named arbitrators
E named in the arbitration clause. The question is whether Clause
  21 would outlive the lives of the named arbitrators.

        13. Section 14 of the Arbitration and Conciliation Act, 1996
  provides for the circumstances in which the mandate of the
  arbitrator is to terminate. It says that the mandate of an arbitrator
F 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 or the
  parties agree to terminate his mandate.

G      14. 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
H application for appointment of an independent arbitrator under
ACC LTD. (FORMERLY KNOWN AS THE ASSTD. CEMENT CO. 225
 LTD.) v. GLOBAL CEMENTS LTD. [K.S. RADHAKRISHNAN, J.]

Section 11 will lie where there has been compliance with the          A
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        B
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 thisCourt in
 Yashwitha Constructions (P.) Ltd. v. Simplex Concrete Piles
India Ltd., (2006) 6 sec 204.                                         c
     15. 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     D
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.                                            E

     16. 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 Trading Company Ltd. v. IC Textiles Ltd.
[(2006) Arb.LR 11) and the learned Judge held as follows:             F

     "..... 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)     G
     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."                                      H
    226       SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A         17. 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.
B
       18. The legislative policy embodied in Sections 14 and15
  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
c and there is no question of persuading or wessurising 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
D duty is to give effect to the policy of law that is to promote
  efficacy of arbitration.

       19. We are of the view that the time factor mentioned in
  the arbitration clause "at any time" is a clear indication of the
E intention of the parties and is used in various statutory
  provisions as well and the meaning of the same has been
  interpreted by this Court in various judgments. In Situ Sahu and
  Others v. State of Jharkhand and Others [(2004) 8 SCC 340],
  this Court dealt with Sections 71-A and 71-B of the Chota
F Nagpur Tenancy Act, 1908 wherein the power was given to the
  Deputy Commissioner to restore possession of "raiyat"
  belonging to Scheduled Tribes transferred in contravention of
  the provisions of the Act or fraudulently. Section 71-A provides
  that "if at any time it comes to the notice of the Deputy
G Commissioner that transfer of land belonging to a raiyat.. .....
  who is a member of the Scheduled Tribes has taken plea in
  contravention of.. ......... any other provisions of this Act or by any
  fraudulent method .... ." This Court took the view that the words
  "at any time" in Section 71-A is evidence of the legislative intent
  to give sufficient flexibility to the Deputy Commissioner to
H
ACC LTD. (FORMERLY KNOWN AS THE ASSTD. CEMENT CO. 227
 LTD.) v. GLOBAL CEMENTS LTD. [K.S. RADHAKRISHNAN, J.]

implement the socio-economic policy of the Act, namely to             A
prevent inroads upon the rights of the ignorant, illiterate and
backward citizens. Certainly, the expression of the words "at
any time" used in Clause 21 of the Arbitration Agreement is to
give effect to the policy of the Act which is to promote efficacy
of arbitration.                                                       8

      20. In lbrahimpatnam Taluk Vyavasaya Coolie Sanghem
v. K. Suresh Reddy and Others AIR [2003 SC 3592], this Court
examined the scope of Section 50-8 of the Andhra Pradesh
(Talangana Area) Tenancy and Agricultural Lands Act, 1950.
The Court, while interpreting the words "at any time", took the       C
view that the use of the words "at any time" in sub-section (4)
of Section 50-8 of the Act cannot be rigidly read letter by letter.
It must be read and construed contextually and reasonably. The
Court also opined that the words "at any time" must be
understood as within a reasonable time depending on the facts         D
and circumstances of each case in the absence of prescribed
period of limitation. In New Delhi Municipal Committee v. Life
Insurance Corporation of India and Others (1977) 4 SCC 84,
this Court was interpreting the expression of the words "at any
time" which finds its place in Section 67 of the Punjab Municipal     E
Act, 1911 read with Section 68A which gave power to the
Municipal authorities to amend the assessment list. The Court
held that the term "at any time" implies that the list may be
amended retrospectively. Stating otherwise would amount to
denying to the expression "at any time" even its plain,               F
grammatical meaning, quite apart from ignoring the context in
which it occurs and the beneficent purpose of its incorporation.
The Court held that the expression must be given its full force
and effect, which requires the recognition of the committee's
power to amend an assessment list even after the expiry of the        G
year following the one in which the list was finalized by due
authentication. These decisions are, therefore, to the effect that
the expression "at any time" has to be interpreted contextually
and reasonably taking note of the intention of the parties.
                                                                      H
    228       SUPREME COURT REPORTS                [2012] 6 S.C.R.

A       21. We have carefully gone through the arbitration clause
  in the Agreement dated 16.12.1989 and, in our view, the words
  "at any time" which appear in Clause 21, is of considerable
  importance. "At any time" expresses a time when an event
  takes place expressing a particular state or condition that is
B when the dispute or difference arises. The arbitration clause
  21 has no nexus with the life time of the named arbitrator. The
  expression "at any time" used in the arbitration clause has nexus
  only to the time frame within which the question or dispute or
  difference arises between the parties be resolved. Those
~ disputes and differences could be resolved during the life time
  of the named arbitrators or beyond their life time. The incident
  of the death of the named arbitrators has no nexus or linkage
  with the expression "at any time" used in clause 21 of the
  Agreement. The time factor mentioned therein is the time within
  which the question or dispute or difference between the parties
0
  is resolved as per the Agreement. Arbitration clause would have
  life so long as any question or dispute or difference between
  the parties exists unless the language of t~e clause clearly
  expresses an intention to the contrary. The question may also
  arise in a given case that the named arbitrators may refuse to
E arbitrate disputes, in such a situation also, it is possible for the
  parties to appoint a substitute arbitrator unless the clause
  provides to the contrary. Objection can be raised by the parties
  only if there is a clear prohibition or debarment in resolving the
  question or dispute or difference between the parties in case
F of death of the named arbitrator or their non-availability, by a
  substitute arbitrator.

       22. We are of the view clause 21 does not prohibit or
  debar the parties in appointing a substitute arbitrator in place
G of the named arbitrators and, in the absence of any prohibition
  or debarment, parties can persuade the court for appointment
  of an arbitrator under clause 21 of the agreement.

        23. The High Court· in our view was justified in entertaining
    such an application and appointing a former Judge of this Court
H
 ACC LTD. (FORMERLY KNOWN AS THE ASSTD. CEMENT CO. 229
  LTD.) v. GLOBAL CEMENTS LTD. [K.S. RADHAKRISHNAN, J.]

as a sole arbitrator under the Arbitration and Conciliation Act,   A
1996 to adjudicate the dispute and difference between the
parties.

     24. In view of the above mentioned reasons, we find no
reason to grant leave to appeal and issue notice on the petition   8
for special leave to appeal and the petition is dismissed.

N.J.                                Special Leave dismissed.