SHARMA, J. - (1.) HEARD.
(2.) IN the instant application the applicant has prayed for appointment of independent arbitrator. The grievance of the applicant is that clause 23 of the agreement executed between the parties provided for settlement of dispute by arbitrator. The applicant in accordance with clause 23 submitted an application dated July 9, 2004 for reference of his claim for adjudication to the standing committee but the respondent No. 3 returned the original papers stating that the claims appeared to be after thought. The respondent filed reply to the application with the averment that in terms of the agreement there was no dispute pending between the parties. In rejoinder the applicant submitted that the applicant claimed the amount Rs. 1,44,75,686/- on January 29, 2002 as only Rs. 9,79,179/- were paid to him by the respondent, therefore the appointment of independent arbitrator is necessary. Clause 23 of the agreement reads as under:- " Clause 23: If any question, difference or objection whatsoever shall, arise in any way in connection with or arising out this instrument or the meaning of operation of any part thereof or the rights, duties or liabilities of either party, then save in so far as the decision of any such matter as herein before provided for and been so decided, every such matter consisting a total claim of Rs. 50,000/- or above, whether its decision has been otherwise provided for and whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated and as regards the rights or obligations of the parties as the result of such termination shall be referred for decision to the empowered standing committee which would consist of the following: (i) Administrative Secretary concerned. (ii) Finance Secretary or his nominee not below the rank of Deputy Secretary. (iii) Law Secretary or his nominee not below the rank of Joint L. R. (iv) Chief Engineer cum Addl. Secretary of the Concerned Department. (v) Chief Engineer concerned (Member Secretary) The Engineer-in-Charge on receipt of application along prescribed fee (the fee would be two percent of the amount in dispute not exceeding Rs. One lakh) from the contractor shall refer the disputes to the Committee within a period of one month from the date of receipt of application. " In Datar Switchgears Ltd. vs. Tata Finance Ltd. 2000 (8) SCC 151, the Apex Court indicated as under:- " As far as Section 11 (6) of the Arbitration and Conciliation Act, 1996 is concerned, if one party demands the opposite party to appoint an arbitrator and the opposite party does not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the court under Section 11, that would be sufficient. Only then the right of the opposite party ceases. "
(3.) IN my opinion since the respondents have failed to act in accordance with the agreed procedure provided in clause 23 of the agreement, the appointment of independent arbitrator as required in Section 11 of the Arbitration and Conciliation Act, 1996 is necessary. I therefore appoint Hon'ble Justice D. C. Dalela (retired) as sole Arbitrator. The Arbitrator may fix his fee and the time for disposal of the dispute in the circumstances so warranted. The application stands allowed as indicated herein above. . ;