JUDGMENT

Sudhansu Jyoti Mukhopadhaya, J.

Leave granted.

2. These appeals are directed against order dated 19.07.2010 passed by the High Court of Kerala at Ernakulam in Arbitration Request No.39 of 2009. By the impugned order, the appellant’s prayer under Section 11 (6) of the Arbitration and Conciliation Act, 1996 for appointment of arbitrator has been rejected by the High Court.

3. The factual matrix of the case is as follows:

On 27.1.2005, the appellant submitted tender, which was accepted by the respondents on 21.7.2005. The possession of the work site was handed over to the appellant on 2.9.2005. The period for completion of the contract expired on 1.9.2007. The case of the appellant is that the Company had completed a major part of the work. This was disputed by the respondents. According to them, only 41% of the work was completed as on 22.12.2007, based on the original contract price. Based on the revised contract price, the progress achieved was only 30% as on 22.12.2007; the work carried out from 22.12.2007 to 1.3.2009 was only 12% as against 70% target.

According to the appellant, a sum of Rs.1,18,87,265/- was payable to it but the said amount was withheld by the respondents. As a condition for releasing the amount, the appellant was compelled to execute a supplemental agreement. The appellant sought extension of the period for completion of the work which was granted up to 1.3.2009. On 7.3.2009, the appellant requested for appointment of a ‘Dispute Review Expert’ as stipulated in the General Conditions of Contract. On 9.5.2009, the appellant again made a request for appointment of ‘Dispute Review Expert’ and also for extension of the "intended completion period". Another letter dated 10.6.2009 was written by the appellant to the Chairman of the Council of Indian Roads Congress with similar prayer to appoint a ‘Dispute Review Expert’ as stipulated in Clause 36.1 of ITB forming part of the agreement without any delay, with due intimation to the appellant in writing.

On 7.08.2009, the Indian Roads Congress addressed a letter to the Chief Engineer, PWD National Highways, Thiruvananthapuram to inform about the appointment of Dispute Review Expert. On 6.10.2009, the Indian Roads Congress wrote another letter to the Chief Engineer, Ministry of Road Transport & Highways, New Delhi requesting him to inform about the appointment of Dispute Review Expert. However, no reply was given to the appellant.

4. In this background, the appellant moved before the High Court under Section 11 (6) of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator. The learned Single Judge of the High Court by impugned order dated 19.07.2010 dismissed the request holding that no arbitration agreement exists.

5. Review Petition filed by the appellant was also rejected by order dated 2.02.2011.

6. The appellant relied upon Clauses 24 and 25 of the Standard Bidding Document which forms part of the contract and read as follows:

"24. Disputes

24.1 If the Contractor believes that a decision taken by the Engineer was either outside the authority given to the Engineer by the Contract or that the decision was wrongly taken the decision shall be referred to the Dispute Review Expert within 14 days of the notification of the Engineer's decision.

25. Procedure for Disputes.

25.1. The Dispute Review Expert (Board) shall give a decision in writing within 28 days of receipt of notification of a dispute.

25.2 The Dispute Review Expert (Board) shall be paid daily at the rate specified in the Contract Data together with reimbursable expenses of the types specified in the Contract Data and the cost shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Dispute Review Expert. Either party may give notice to the other to refer a decision of the Dispute Review Expert to an Arbitrator within 28 days of the Dispute Review Expert's written decision. If neither party refers the dispute to arbitration within the next 28 day