Dinesh Maheshwari ORDER
Dinesh Maheshwari, C.J.
1. By way of this application filed under Section 11 of the Arbitration and Conciliation Act, 1996 ('the Act of 1996'), the petitioner, said to have entered into a contract with the respondent for execution of the civil work for development of road, has prayed for appointment of an independent arbitrator to adjudicate upon and decide the dispute between the parties.
2. It is submitted that the Conditions of Contract annexed to the Agreement dated 23.07.2010 provide for adjudication of dispute through arbitration and the petitioner called upon the respondent to submit itself for arbitration, but the respondent neither replied to the notice nor complied with the demand.
3. On being noticed on this application, the respondent has appeared through counsel. Though no statement of objections have been filed, but learned counsel for the respondent has contended that in fact, non-existence of arbitration clause in the contract in question is explicit on the face of the record and, therefore, the petitioner is not entitled for the relief as claimed.
4. Learned counsel for the petitioner has countered these submissions with reference to the procedure for arbitration as spelt out in the contract in question.
5. Having given thoughtful consideration to the rival submissions and having examined the record, this Court finds no reason to reject the contentions of the respondent particularly, in view of the explicit terms of the contract in question.
6. It is noticed that in the Conditions of Contract, dispute resolution mechanism is provided as under:
"24. Procedure for resolution of Disputes:
24.1 If the Contractor is not satisfied with the decision taken by the Employer, the dispute shall be referred by either party to Arbitration within 30 days of the notification of the Employer's decision.
24.2 If neither party refers the dispute to Arbitration within the above 30 days, the Employer's decision will be final and binding.
24.3 The Arbitration shall be conducted in accordance with the arbitration procedure stated in the Special Conditions of Contract."
7. However, Special Conditions of Contract are also provided under the heading 'F' and therein, it is specifically provided as under:
"4. Arbitration (Clause 24) (Not Applicable for this work)"
8. Thereafter, in the said Special Conditions of Contract, the procedure for arbitration has also been stated in Clause 4.1 as under:
"4.1 The procedure for arbitration shall be as follows:
(a) In case of dispute or difference arising between the Employer and the Contractor relating to any matter arising out of or connected with this agreement it shall be settled in accordance with the Arbitration and Conciliation Act 1996. The disputes or differences shall be referred to a Sole Arbitrator. The Sole Arbitrator shall be appointed by agreement between the parties; failing such agreement, by the Appointing Authority (any one of the Organizations as per list enclosed in Annexure)
(b) Arbitration proceedings shall be held at..............., Karnataka, India
(c) The cost and expenses of arbitration proceedings will be paid as determined by the Arbitrator. However the expenses incurred by each party in connection with the preparation, presentation, etc., shall be borne by each party itself.
(d) Performance under the contract shall continue during the arbitration proceedings and payments due the Contractor by the Employer shall not be withheld, unless they are the subject matter of the arbitration proceedings."
9. In a comprehension of the terms and conditions between the parties, the only logical deduction is........