S.J.VAZIFDAR,J. - (1.) This is an application filed under section 11 of the Arbitration & Conciliation Act, 1996 (for short 'the Act') for the appointment of an Arbitrator.
(2.) The respondent invited tenders for civil construction works. Clause 52 relates to settlement of disputes by way of arbitration. Clause 52.3 in so far as is relevant reads as under: - "52.3 Subject as aforesaid in clauses 52.1 and 52.2, all disputes and differences whatsoever, which shall at any time hereafter arise between the parties here touching or concerning this agreement or its interpretation of effect or as to the rights, duties, obligations arid liabilities of the parties hereto or either of them under of by virtue of this Agreement or otherwise as to any other matter in any way connected with or arising out of or in relation to the subject matter of this Agreement shall be referred to the Arbitration in accordance with the provisions of Arbitration and Conciliation Act, 1996. The parties agree that the reference of the disputes and differences between the parties would be made to the Sole Arbitrator, to be appointed jointly. The jurisdiction and arbitration venue shall be at Gurgaon. The procedure for the arbitration shall be determined by the Arbitrator. Costs of such arbitration shall be equally shared between the owner and the contractor. The parties undertake to abide and remain bound by the award of the Arbitrator so rendered."
(3.) The petitioner's tender was accepted and the parties entered into an agreement dated 30.10.2010. Disputes and differences arose between the parties. The petitioner by a letter dated 05.04.2014 claimed that an amount of about Rs. 8.72 crores was due and payable by the respondent to it and invoked the arbitration and settlement clause 52 as also clause 32.5. The question that arises for consideration is whether the arbitration agreement survives in view of what transpired between the parties thereafter.;