Hemant Gupta, J. - (1.) THE present petition is for appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (for short the 'Act') in respect of the dispute arising between the parties out of an Agreement dated 2.12.1999. Vide the aforesaid Agreement, Petitioner was given a contract for maintenance of Karnal -Kaithal Road. In the aforesaid Agreement, the employer is defined as Engineer -in -Chief, Haryana PWD (B and R); the Engineer as M/s Carl Bro International a/s Denmark and adjudicator as Shri R.A. Goel EIC (Retd.) PWD, B and R.
(2.) THE work was completed on 30.4.2002 as per the Contract. Thereafter, the Petitioner submitted its claim to the Engineer -in -Chief on 15.1.2003 (Annexure P -4). Subsequently, final payments have been released on 18.3.2003. It was on 30.4.2003 (Annexure P -5), Shri M.K. Sen, Chief Engineer (Retd.), Punjab PWD, (B and R) was nominated by the Petitioner as its Arbitrator and called upon Engineer -in -Chief to nominate its Arbitrator. Subsequently, when no response was received from the Respondents, the Petitioner requested the President of Indian Road Congress, New Delhi for appointment of an Arbitrator in terms of the Arbitration Clause in the aforesaid Agreement. Since, no action has been taken, the Petitioner filed the present petition for appointment of an Arbitrator under the Act on 9.3.2006. On behalf of Respondents, it has been stated that the Petitioner has not followed the procedure for resolution of disputes, firstly by an Engineer and later by an Adjudicator. The Petitioner can seek resolution of disputes by an Arbitrator only against the decision of the Adjudicator. Therefore, the petition without taking recourse to the agreed procedure of resolution of disputes is not maintainable.
(3.) AT this stage, it will be advantageous to reproduce the relevant Clauses from the Agreement. The same are reproduced below: 4. Engineer's Decisions 4.1 Except where otherwise specifically stated, the Engineer will decide contractual matters between the employer and the Contractor in the role representing the Employer. xx xx xx 24. Disputes. 24.1 If the Contractor believes that a decision taken by the Engineer was either outside the authority given to the Engineer by the Contract or that the decision was wrongly taken, the decision shall be referred to the Adjudicator within 14 days of the notification of the Engineer's decision. xx xx xx 25. Procedure for Disputes. 25.1 The Adjudicator shall give a decision in writing within 28 days of receipt of a notification of a dispute. 25.2 The Adjudicator shall be paid daily at the rate specified in the Contract Data together with reimbursable expenses of the types specified in the Contract Data and the cost shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Adjudicator. Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator's written decision. If neither party refers the dispute to Arbitrator within the above 28 days, the Adjudicator's decision will be final and binding. 25.3 The arbitration shall be conducted in accordance with the arbitration procedure stated in the Special Conditions of Contract. F Special condition of contract 1. and 2 xx xx xx xx 3. Arbitration GCC (Clause 25.3) 25.3 (a) In case of Dispute or difference arising between the Employer and a domestic contractor relating to any matter arising out of or connected with this agreement, such disputes or difference shall be settled in accordance with the Arbitration and Conciliation Act, 1996. The arbitral tribunal shall consist of 3 arbitrators one each to be appointed by the Employer and the Contractor. The third Arbitrator shall be chosen by the two Arbitrators so appointed by the Parties and shall act as Presiding arbitrator. In case of failure of the two arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the President, Indian Road Congress. xx xx xx;