Vijender Jain, C.J. - (1.) This is a petition filed under Sec. 11 of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. The brief facts giving rise to the filing of the present petition are that the arbitration clause between the parties is not disputed. The same is at page 63 of the paper -book and reads as under: Clause 33. If any dispute or difference of any kind whatsoever shall arise between the Housing Board Haryana/its authorised agent and the contractor in connection with or arising out of the contract or the execution of the work that is (i) whether before its commencement or during the progress of the work or after it completion (ii) and whether before or after the termination, abandonment or breach of the contract, it shall in the first instance be referred to for being settled by the Executive Engineer incharge of the work at the time and he shall within a period of sixty days after being requested in writing by the contractor to do so, convey his decision to the contractor and subject to arbitration as hereinafter provided, such decision in respect of every matter so referred shall be final and binding upon the contractor. In case the work is already in progress the contractor will proceed with the execution of the work on receipt of the decision by the Executive Engineer -Incharge as aforesaid, with all due diligence whether he or the Housing Board Haryana/its authorised agent requires arbitration as hereinafter provided or not. If the Executive Engineer -Incharge of the work as conveyed his decision to the contractor and no claim to arbitration has been filed with him by the contractor within a period of sixty days from the receipt of letter communicating the decision, the said decision shall be final and binding upon the contractor and will not be a subject matter of arbitration at all. If the Executive Engineer in -charge of the work fails to convey his decision within a period of sixty days, after being requested as aforesaid, the contractor may within further sixty days of the expiry of first sixty days from the date on which request has been made to the Executive Engineer, Incharge request the Chief Administrator H.B.H. that the matter in dispute be referred to arbitration as hereinafter provided.
(2.) All disputes or differences in respect of which the decision is not final and conclusive shall at the request in writing of either party, made in a communication sent through Registered A.D. post be referred to the sole Arbitration before an Arbitrator to be nominated by the Chief Administrator from amongst officers who will be, either. i) A serving Superintending Engineer or Chief Engineer of the Housing Board, or Haryana PWD B & R; or ii) A retired Superintending Engineer, Chief Engineer or an Engineer -in -Chief of the Housing Board or Haryana PWD B&R or any other person to be selected out of panel of Arbitrators approved by the Chief Administrator; It will be no objection to any such appointment that the arbitrator so appointed is a Housing Board employer/Government servant or that he had to deal with the matters to which the contract relates and that in the course of his duties as a Housing Board Employee/Government servant, he had expressed his views on all or any of the matters in dispute. The Arbitrator to whom the matter is originally referred being transferred or vacating his office, his successor -in -office as such shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. In case the Arbitrator nominated by the Chief Administrator, Housing Board Haryana, is unable or unwilling to act as such for any reason, whatsoever the Chief Administrator shall be competent to appoint and nominate any other Superintending Engineer or Chief Engineer, as the case may be as arbitrator in his place and the Arbitrator so appointed shall be entitled to proceed with the reference. 3 It is also a term of this arbitration agreement that no person other than a person appointed by the Chief Administrator, Housing Board Haryana, Chandigarh shall act as Arbitrator and if for any reason that is not possible the matter shall not be referred to arbitration at all. In all cases, the arbitrator shall give reasons for his award in respect of each claim and counter claim separately. 4. The Arbitrator shall award separately giving his award against each claim and dispute raised by either party including any counterclaims individually and that any lump -sum award shall not be legally enforceable. 5. The following matters shall not lie within the purview of arbitration: a) Any dispute relating to the levy of compensation as liquidated damages which has already been referred to the Superintending Engineer/Chief Engineer and is being heard or/and has been finally decided by the Superintending Engineer/Chief Engineer Incharge of the work. It is also not in dispute that the petitioner invoked the arbitration agreement pursuant to Ex.A -5. In reply to the letter of invocation given by the petitioner, the respondents replied vide Ex.A -9 dated 5.8.2003 inter alia urging upon the petitioner to comply with Clause 33(7) of the contract agreement before his request for appointment of Arbitrator could be considered by the competent authority. Pursuant to the said reply, the petitioner deposited a sum of Rs. 79,550/ in the shape of a bank draft as security at the laid down scale against arbitration which is Ex.A -2 dated 27.11.2003. Petitioner waited for supply of vacancy by the respondents. However, the respondents did not appoint any Arbitrator. The petitioner filed a petition before the learned Additional District Judge, Panchkula on 24.5.2004. The respondents were served, as would be borne out from the order passed by the learned Additional District Judge where respondents appeared through counsel. The stand of the respondents in the reply filed is that as they had appointed the Arbitrator on 3.8.2004, therefore, the Arbitrator cannot be appointed in the present proceedings. In view of the catena of judgments of the Apex Court, it is no more res integra that if a party does not appoint an Arbitrator in spite of receiving a letter of invocation of arbitration clause, he loses a right to appoint the Arbitrator. Therefore, the appointment of the Arbitrator which was admittedly made by the respondents after having been served in the suit, is no appointment in the eyes of law. With the consent of the parties, Shri P.C. Singal (retired District and Sessions Judge) is appointed as the sole Arbitrator to adjudicate upon all the disputes between the parties. The Arbitrator shall fix his own fee. The intimation of appointment be sent to the Arbitrator. Parties to appear before the Arbitrator on 12.10.2007 at 4.00 P.M. Petition stands disposed of.;