Vijender Jain, J. - (1.) THIS petition under Section 11 of the Arbitration and Conciliation Act, 1996 has been filed by the petitioner for appointment of an Arbitrator. In this case, the arbitration clause is admitted between the parties.
(2.) IT is the contention of counsel for the petitioner that in view of certain claims and payments to be received from the respondent, the petitioner has invoked Clause 33 of the arbitration agreement which is to the following effect: a) If at any time, any question, dispute or difference, what so ever shall arise between the purchaser/Board and the contractor/supplier, upon or in relation to or in connection with the PO/contract, either party may forthwith give to the other, notice in writing of the existence of such question, dispute or difference and the same shall be referred for sole arbitration of a nominee of the purchaser/Board who shall give reasoned/speaking award. The award of the Sole Arbitrator shall be final and binding on the parties under the provisions of the Indian Arbitration Act, 1996, and of the rules there under. Any statutory amendment, modification or reenactment thereof for the time being in force, shall be deemed to apply to and he incorporated in contract/PO. It will not be objectionable if the Sole Arbitrator, is an officer of the Board and he has expressed his views on all or any of the matters in question or the dispute or difference. b) Upon every or any such reference the cost of and incidental to the reference and award respectively shall be in the discretion of the Sole Arbitrator so appointed who may determine the amount thereof or direct the same to be taxed as between solicitor and client or as between party and shall direct by whom and to whom and in what manner the same is to be borne and paid. c) The work under the Contract shall if reasonably possible continue during the arbitration proceedings and no payment due or payable by the purchaser/Board shall be withheld on account of such proceedings. However, no Arbitrator was appointed by the respondent. Thereafter, the petitioner again sent reminders on 28.11.2005, 18.2.2006 and finally on 29.3.2006. In spite of all these letters, no Arbitrator was appointed by the respondent. However, in reply to letters dated 12.11.2005 and 28.11.2005, the respondent took the stand that as per terms of the contract agreement, no dispute between the parties had arisen and nothing is due towards the respondent and there was no necessity to appoint any sole Arbitrator. That reply (Annexure P -12) is at page 32 of the paper -book.
(3.) ON the other hand, Mr. J.P.S. Sandhu, learned Counsel for the respondent has contended that now the respondent has supplied the vacancy in terms of the arbitration clause i.e. after receiving notice of the present petition on 12.11.2007 and an Arbitrator has been appointed on 5.12.2007.;