Amitava Lala, J. - (1.) The petitioner contended that in spite of demand notice for appointment of Arbitrator, no departmental nominee was appointed as Arbitrator in terms of the Clause 25 of the Agreement. Therefore, this court has every right to send the matter before the Hon'ble Chief Justice for the purpose of filling up the vacancy of the Arbitrator and for further direction, if any, to prescribe the time/period for making and publishing the Award by the said Arbitrator. The petitioner also relied upon a judgment reported in (1993) 2 SCC 654 (Nandyal Coop. Spinning Mills Ltd. v. K. V. Mohan Rao) and relaying upon paragraph 11 therein contended that in terms of the notice the Arbitrator has to be appointed by the department within the prescribed period, failing thereby the Court gets jurisdiction to appoint an Arbitrator in place of the contract by operation of particular Section therein.
(2.) However, on a different aspect altogether, it appears that by virtue of Sub-section 5 under Section II in case of any disagreement, the Hon'ble Chief Justice is the authority to appoint an Arbitrator.
(3.) The respondent opposed this application by saying that clause 25 also prescribes that it is also a term of this contract that no person other than a person appointed by the Chief Engineer or Administrative Head of the concerned department should act as an arbitrator and if for any reason that is not possible the matter is not to be referred to Arbitration at all. The respondent heavily bent upon a particular portion of the Clause by saying that either this Clause has to be invoked or there should not be any arbitration. He also contended that the Arbitration agreement was executed by consent of the parties.;