MISRA, J. - (1.) THIS is a application for appointment of an arbitrator on account of a dispute which has arisen between the respondent Rajasthan State Bridge Construction Corporation Ltd. and the appellant/-M/s Pile Foundation Construction Company in regard to claim of payment on account of the contractual obligation discharged by the applicant by constructing Railway Over Bridge at Jhotwara, Admittedly, there is a clause for arbitration signed by both the parties which indicates that in the even of a dispute arising between the parties, the same will be referred to the arbitrator for adjudication and there is a specific Clause in the arbitration agreement itself that before an arbitrator is appointed, the application for appointment of an arbitrator will have to be supplemented by the non-refundable fee for the application, the applicant although submitted an application for appointment of an arbitrator and for referring the dispute to him, failed to deposit the prescribed fee and insisted that after the arbitrator decides the dispute, the prescribed fee be reimbursed out of the amount which would be payable by the respondents to the applicant.
(2.) ALTHOUGH this averment appears to be logical by a common sense view point, it is difficult to accept it in view of the contractual obligation fastened upon the applicant vide a written agreement between them which envisages that the applicant has to submit the application for appointment of an arbitrator alongwith the prescribed fee and therefore the plea of the applicant that this should be waived for the time being and can be adjusted later when the payment is made by the respondents, cannot be accepted. If at all the terms and conditions for arbitration where somewhat informal or oral in nature, may be this kind of convenient arrangement would have been acceptable, but as already stated, in view of the written agreement between the parties laying down exactly in what manner the arbitrator has to be appointed as also the requirement regarding the prescribed fee before an arbitrator is appointed, the plea of the applicant that the arbitrator should have been appointed even though he had failed to fulfil his obligation of paying the prescribed fee cannot be accepted as correct and therefore this application for appointment of an arbitrator in absence of discharge of the contractual obligation by the applicant, cannot be treated as a correct approach of the applicant. Therefore this application for appointment of an arbitrator is not fit to be allowed straightway. However, inspite of the aforesaid situation, it is also equally true that the prescribed time for depositing the fee having not been laid down in the agreement, the plea of delay which might be raised by the respondents if the same is now deposited for appointing an arbitrator cannot be allowed to be raised by the respondents henceforth. The applicant therefore shall now be at liberty to deposit the prescribed fee for the appointment of an arbitrator within a period of two months from the date of receipt of this order and if such deposit is made, the respondents shall be under the contractual obligation to refer the dispute to the arbitrator. In the even of failure of do so, the applicant shall be at liberty to file fresh application for appointment of an arbitrator. This application for arbitration accordingly stands disposed of. .;