- (1.) THIS is an application for appointment of an Arbitrator by Court on the ground that although the Chairman and Managing Director of the respondent Company was called upon to nominate an Arbitrator in terms of the Arbitration Clause by letter dated 21/09/1991, the Chairman and Managing Director failed to appoint any arbitrator. No reply was sent to the said letter. When there was no reply to the said letter dated 21st of September, 1991, the petitioner again wrote a reminder dated 26th of October, 1991 calling upon the appointing authority to appoint an Arbitrator within 15 days from the receipt of the said letter. Copy of the said letter is Annexure 'F' to the petition. THIS letter also failed to elicit any response of the appointing authority and the petitioner was again constrained by letter dated 12/11/1991 to write to the appointing authority being the Chairman and the Managing Director of the respondent to appoint a Sole Arbitrator positively within 15 days of the receipt of the letter, failing which the petitioner stated that it would take an appropriate legal action for reference of the disputes to arbitration. Having no alternative, as the appointing authority had failed and refused to appoint any Arbitrator in spite of three letters by the petitioner, the petitioner moved the instant application praying inter alia for appointment of an Arbitrator by this Court to adjudicate the dispute and claims mentioned in the letter dated 21/09/1991, being Annexure 'E' to the petition. It is the contention of the learned advocate for the petitioner that the disputes were set out in Annexure 'A' to the said letter dated 21/09/1991, addressed to the Chairman and Managing Director of the respondent Company. Since no reply was given to any of the letters that only suggests that the Chairman and Managing Director refused to appoint any arbitrator in terms of the arbitration clause. The case of the respondent is that the disputes referred to in Annexure 'A' to the said letter do not come within the purview of the arbitration clause and as such no arbitrator should be appointed and as such the application is not maintainable. The respondent has particularly objected to Sl. Nos. 6, 7, 8, 9 and 10 referred to in the said claim of the petitioner being Annexure 'A' to the petition on the ground that the said items do not relate to terms and conditions for payment. It has also been submitted on behalf of the respondent that the Arbitration Clause in the instant case provides for a particular machinery for appointment of named Arbitrator and since that machinery has not failed, it is not open to the Court to appoint an Arbitrator. I have considered the submissions of the learned Advocate of the parties. In my opinion the Arbitration Clause is very wide. The said Arbitration Clause is set out heroin below :- "If any dispute arises between the Contractor and the Sub-Contractor about the terms and conditions of payment and execution of the work the same shall be referred to an arbitrator as per Arbitration Act to be appointed by the Chairman and Managing Director of the Contractor."
(2.) IT cannot be said from a proper interpretation of the Arbitration Clause that the disputes and/or claims mentioned in Annexure 'A' to the petition are not covered by the Arbitration Clause. On the contrary the disputes really relate to terms and conditions of payment and execution of the work. IT cannot also be said that the particular items of disputes, namely 6, 7, 8, 9 and 10 do not fall within the purview of the Arbitration Clause. In fact the plea of the respondent appears to be an afterthought otherwise it could have raised this objection by way of reply to the letters of the petitioner seeking to enforce Arbitration Clause. It appears to me that on proper interpretation of the Arbitration Clause each and every claim raised in Annexure 'A' to the letter dated 21st September, 1991 relates to the execution of the work and terms and conditions of payment, and, as such, the disputes appear to be very much within the scope of the Arbitration Clause on proper interpretation thereof.
(3.) IT has further been submitted on behalf of the respondent that the Court has no power to appoint independent person to act as an arbitrator but the said prerogative rests only with the Chairman and the Managing Director to the respondent under the terms of the Arbitration Agreement. I am unable to accept such contention.;