- (1.) This is an application under section 11 of the Arbitration & Conciliation Act, 1996 (for short 'the Act') for the appointment of an Arbitrator.
(2.) Clause 67 of the terms and conditions in so far as it is relevant reads as under:- "67. ARBITRATION (GCC Clause 25.3) The procedure for arbitration will be as follows:- (a) In case of Dispute or difference arising between the Employer and a domestic Contractor, relating to any matter arising out of the connected with this agreement, such disputes or difference shall be settled in accordance with the Arbitration & 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 Government of Haryana. The Arbitrators including the Presiding Arbitrator so appointed must possess minimum educational qualification of degree in Civil Engineering. If one of the parties fails to appoint its arbitrator within 30 days after receipt of the notice of the appointment of its arbitrator by the other party, then Government of Haryana shall appoint the arbitrator. A certified copy of the order of the Government of Haryana, making such an appointment shall be furnished to each of the parties. (b) Arbitration proceedings shall be held at Chandigarh or at any place within the State of Haryana to be decided by the Arbitrators in consultation with both the parties. The language of the arbitration proceedings and that of all documents and communications between the parties shall be English. (c ) to (e) xx xx xx (f) It is also a term of this arbitration agreement that where the party invoking arbitration is the contractor no reference for arbitration shall be maintainable unless the contractor furnishes to the satisfaction of the Resident Engineer-incharge of the work a security deposit of a sum determined according to details given below and the sum so deposited shall on the termination of the arbitration proceedings be adjusted against the cost, if any, awarded by the arbitrator against the claimant party and the balance remaining after such adjustment in the absence of any such cost being awarded the whole of the sum will be refunded to him within one month from the date of the award. Amount of Claims Rate of Security deposit (i) For claims below Rs.10,000/- 2% of amount claimed (ii) For claims of Rs.10,000/- 5% of amount claimed and below Rs. 1,00,000/- (iii)For claims of Rs.1,00,000/- 10% of amount claimed and above. The stamp fee due on the award shall be payable by the party as desired by the arbitrator and in the event of such party's default stamp fee shall be recoverable from any other sum due to such party under this or any other contract."
(3.) The value of the contract was over Rs. 20 crores. The reference, therefore, is before a tribunal comprising of three Arbitrators. Disputes and differences arose between the parties. On 05.05.2008, the respondents terminated the contract. The petitioner disputed the validity of the termination and has raised claims of over Rs. 4.50 crores. By a letter dated 23.09.2008, the petitioner invoked the arbitration clause and nominated an Arbitrator.;