V. Kameswar Rao JUDGMENT
V. Kameswar Rao, J.
1. This petition has been filed by the petitioner under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. The facts as noted from the petition and contended by Mr. Kapur are, the petitioner is the sole proprietor of M/s. JPE International and is engaged in business of contracts for electrical work, structural and other business related to electrical works.
2. The petitioner and the respondent entered into an agreement for carrying out internal electrical works for renovation and expansion of ESIC Hospital, Okhla Project. The main contract was between ESIC and TCIL. A further sub-contract was between the respondent and TCIL. It is the case of the petitioner and contended by Mr. Kapur that the respondent has awarded the contract to the petitioner on back-to-back basis vide LOI dated September 18, 2013 and the total value of the contract was for Rs. 5.92 Crores. That certain disputes arose between the petitioner and the respondent inasmuch it is alleged that complete payments have not been released by the respondent to the petitioner.
3. According to Mr. Kapur, the main contract between the respondent and the TCIL/ESIC contains an arbitration clause. It is also his case, that clause 2 of the LOI dated September 18, 2013 addressed to the petitioner by the respondent clearly states that the scope of work, commercial and technical terms and conditions including payment terms of contract between the petitioner and the respondent is on back-to-back basis with the main contract between the ESIC and TCIL and as such all the terms and conditions will apply to the agreement between the petitioner and the respondent including the arbitration clause which reads as under:
"20.6.
Arbitration. Unless settled amicably, any dispute in respect of which the DAB's decision (if any) has not become final and binding shall be finally settled by reference to arbitration Unless otherwise agreed by both parties.
a). the dispute shall be finally settled under the Arbitration and Conciliation Act, 1996.
b). the dispute shall be settled by three arbitrators appointed in accordance with these Rules.
c). the arbitration shall be conducted in the language for communications defined in Sub-Clause 14 (Law and Language).
The arbitrator(s) shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of (or on behalf of) Employer, and any decision of the DAB, relevant to the dispute.
Neither Party shall be limited the proceedings before the arbitrator(s) to the evidence or arguments previously put before the DAB to obtain its decision, or to the reasons for dissatisfaction. Any decision of the DAB shall be admissible in evidence in the Arbitration.
Arbitration may be commenced prior to or after completion of the Works. The obligations of the Parties and the DAG shall not be altered by reason of any arbitration being conducted during the progress of the works".
4. It is the submission of Mr. Kapur that as there is inaction on the part of the respondent to release the money to the petitioner, which resulted in the petitioner vide letter dated November 27, 2016 invoking the arbitration clause and proposing two names of retired Judges of this Court, for one to be appointed as sole Arbitrator. He states, the respondent vide letter dated December 19, 2016, instead of accepting the names, stated that they would suggest their own list of Arbitrators. However, there was no response thereafter.
5. According to Mr. Kapur, vide legal notice dated November 16, 2018, the petitioner nominated Justice Vijender Jain, a retired Judge of this Court as an Arbitrator and requested the respondent to nominate their nominee Arbitrator so that the two Arbitrators........