SHARMA, J. - (1.) HEARD learned counsel for the parties.
(2.) IN this application under section 11 of Arbitration and Conciliation Act,1996 (for short Rs. 1996 Act') the applicant seeks to appoint independent arbitrator. A preliminary objection has been raised by Mr. Gill, learned Additional Advocate General that since the applicant has not moved the application along with nonrefundable prescribed fee to the Engineer -in -Charge, in view of clause 23 of the agreement the instant application seeking appointment of arbitrator is not maintainable. Mr. Gill vociferously canvassed that the provisions contained in Section 11 of 1996 Act are not applicable to the matters covered by clause 23 of the agreement. According to Mr. Gill applicant is not entitled to any relief since provisions of clause 23 of the agreement were not followed. In order to appreciate the submission of Mr. Gill, a look at clause 23 of the agreement appears necessary which provides thus: -      " 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 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 with 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" A bare look at clause 23 demonstrates that Engineer -in - Charge shall refer the matter consisting a total claim of Rs. 50,000/ - or above to empowered standing committee on receipt of application along with prescribed fee. It is however not defined in clause 23 that who shall be Engineer -in -Charge. Therefore, it is necessary for the contractor to inform the State Government that dispute exists and it consists a total claim of Rs. 50,000/ - and above. After receiving said information the state Government is required to inform the contractor to make application along with prescribed fee to such and such Officer -in -Charge.
(3.) IN the instant case although the applicant made request through his Advocate for referring the matter to Standing Committee by sending a notice dated May 23, 2006 to the respondents, yet the respondents did not even choose to send reply to the notice. If the respondents treated the notice as application to the Officer -in -Charge under clause 23, then also the applicant could have been asked to deposit prescribed fee. The act of respondents in not taking any step even after receiving the notice from the appellant, shall only mean that the respondents have declined the request of applicant to refer the matter to Standing Committee. Since the matter was not referred to Standing Committee within 30 days of the demand the right to file application under 1996 Act accrued to the applicant. IN this view of the matter, I find no merit in the preliminary objection raised by learned Additional Advocate General. In Datar Switchgears Ltd. vs. Tata Finance Ltd. (2000)8 SCC 151, their Lordships of the Supreme Court in a similar situation held as under: -      ". . . 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. " As a result of the above discussion, I allow the instant application and appoint Mr. H. P. Lakhera, Chief Engineer (Retired), C -208, Manu Marg, Tilak Nagar Jaipur as arbitrator to settle the dispute. Fees and other terms and conditions of arbitration shall be settled by the Arbitrator. A copy of the order be sent to the Arbitrator. . ;