Vijender Jain, J. - (1.) THIS petition has been filed by the petitioner under Section 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act'), for appointment of sole arbitrator.
(2.) CLAUSE 70 of the agreement contains the arbitration clause which reads as under: All disputes, between the parties to the contract (other than those for which the decision of the C.W.E. or any other person is by the contract expressed to be final and binding) shall, after written notice by either party to the contract to the other of them, be referred to the sole arbitration of an serving officer having degree in Engineering or equivalent or having passed final/direct final examination of Sub -Division II of Institution of Surveyor (India) recognised by the Government of India to be appointed by the authority mentioned in the tender documents. Unless both parries agree in writing such reference shall not take place until after the completion or alleged completion of the works or termination or determination of the contract under Condition Nos. 55, 56 and 57 hereof. Provided that in the event of abandonment of the works or cancellation of the contract under Condition Nos. 52,53 or 54 hereof, such reference shall not take place until alternative arrangements have been finalised by the government to get the works completed by or through any other contractor or contractors or agency or agencies. Provided always that commencement or continuance of any arbitration proceeding hereunder or otherwise shall not in any manner militate against the government's right of recovery from the contractor as provided in Condition No. 67 hereof. If the arbitrator so appointed resigns his appointment or vacates his office or is unable or unwilling to act due to any reason whatsoever, the authority appointing him may appoint a new arbitrator to act in his place. The arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties, asking them to submit to him their statement of the case and pleadings in defence. The arbitrator may proceed with the arbitration, ex parte, if either party, in spite of a notice from the arbitrator fails to take part in the proceedings. The arbitrator may, from time to time with the consent of the parties, enlarge the time for making and publishing the award. The arbitrator shall give his award within a period of six months from the date of his entering on the reference or within the extended time as the case may be on all matters, referred to him and shall indicate his findings, along with sums awarded, separately on each individual item of dispute. If the value of the claims or counter -claims in an arbitration reference exceeds Rs. One lakh, the arbitrator shall give reasons for the award. The arbitrator shall give reasons for the award in each and every case irrespective of the value of claims or counter -claims. The venue of arbitration shall be such place or places as may be fixed by the arbitrator in his sole discretion. The award of the arbitrator shall be final and binding on both parties to the contract. The petition was filed by the petitioner in April 2005. The case of the petitioner is that petitioner served a notice along with the list of claims due to the petitioner, through speed post on 23.02.2005. However, when no arbitrator was appointed, the petitioner preferred the present petition.
(3.) A few important facts may be noticed. It is an admitted case of the parties that work was completed on 23.09.2000 and the final bill was paid by the respondent to the petitioner on 10.04.2001. However, the petitioner has contended that final bill did not include the payment against several items which were still pending. Confronted with the arguments raised by counsel for the respondent that no claims were raised, by the petitioner, within the period of three years, either from the date of completion of work or from the date of payment of the final bill, which was 10.04.2001, the partner of the firm, who has argued the matter in person, relied upon Clause 67(f) and (g) of the agreement to contend that the currency of the contract stood extended beyond the period of two years from the date of payment of undisputed portion of the final bill.;