Hemant Gupta, J. - (1.) THE Petitioner has invoked the jurisdiction of this Court under Section 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') for appointment of an Arbitrator in respect of the disputes arising out an Agreement dated 23.05.2004. Vide the aforesaid Agreement, the Petitioner was awarded work for construction of 50 Dwelling Units of the Respondent -Society at approximate cost of Rs. 2.10 crores.
(2.) AS per the Petitioner, it completed the work on 16.02.2005 with a certificate issued by Shri Munish Verma, Architect of the Society. The Petitioner submitted final bill amounting to Rs. 34,39,495/ - , but on 08.06.2007, the Respondent sought to recover an amount of Rs. 29,88,797/ - from the Petitioner on account of poor workmanship of construction of flats and that the Respondent has failed to appoint an Arbitrator to settle the disputes between the parties even though notice to this effect was issued by the Petitioner. In response to the notice of the petition, the Respondent has filed its reply, wherein it was, inter alia, pleaded that the final bill dated 04.08.2005 was received on 21.08.2005. The duly verified bill was sent to the Architect of the Society on 10.10.2005 for final certification. The Architect has issued the certified final bill on 30.10.2005. A copy of the bill was sent to the Petitioner vide letter dated 17.11.2005 (Annexure R/2). In the said communication, it was alleged that an excess amount of Rs. 7,93,952 has been made to the Petitioner and after adjusting the amount of security, an excess amount of Rs. 1,35,498/ - is liable to be refunded by the Petitioner to the society.
(3.) LEARNED Counsel for the Petitioner has vehemently argued that even though the Petitioner has served a notice for referring the disputes to an Arbitrator on 20.10.2007, still the Respondent has not appointed an Arbitrator in terms of Clause 37 of the Agreement, therefore, this Court should appoint an Arbitrator to adjudicate upon the disputes between the parties.;