This petition is filed under Section 11(5) of the Arbitration and Conciliation Act, 1996 (for short, hereinafter referred to as the 'Act'), for the appointment of an Arbitrator to resolve the dispute between the parties.

2. The case of the petitioner is that he entered into an agreement of sale dated 21st December, 2005 for purchase of the property bearing Plot No. 19-A, Peenya II Phase, Industrial Area, which is morefully described in the schedule to the agreement of sale and (for short, hereinafter referred to as the 'schedule property) for a consideration of Rs. 6,99,04,079/-. A copy of the agreement is produced as Annexure-A. Clause 9 of the said agreement provides for resolution of dispute arising out of the agreement by way of arbitration. It is his further case that in terms of the agreement, a sum of Rs. 2,00,00,250/- was paid by the petitioner to the respondent as advance by way of cheque, which has been duly encashed by the respondent. Sixty days time was stipulated for completion of sale transaction.

3. On 18-2-2006, the petitioner wrote a letter expressing his readiness and willingness to purchase the property and pay the balance sale consideration in terms of the agreement, and take possession of the property. The respondent sent a reply to the said letter stating that they are ready and willing to hand over vacant possession of the property agreed to be sold at the time of registration and there was no question of the same being vacant prior to the completion of the sale transaction. The respondent did not remove the machineries and the premises was not kept vacant. Those letters are produced as Annexures-B and C. Inspite of repeated request, when the respondent did not perform his part of the contract, he was constrained to file a petition under Section 9 of the Act for interim measures, which came to be allowed on 23-9-2006. Thereafter, he wrote a letter to the respondent on 28-8-2006 nominating one R. Ramaiah, as an Arbitrator and requested the respondent to concur with the appointment of an Arbitrator. The said letter has been duly served on the respondent. Annexure-D is the letter and Annexure-E is the acknowledgment. As the respondent did not comply with the demand made therein, he was constrained to file the present petition for appointment of an Arbitrator.

4. After service of notice, the respondent entered appearance and filed detailed statement of objections. They do not dispute the agreement, receipt of Rs. 2,00,00,250/- from the petitioner, and the exchange of letters. Their specific case is that Clause 8.1 of the agreement stipulates that in the event of purchaser failing to pay the sale consideration within sixty days from the date of agreement, the agreement shall stand automatically terminated and the respondent will be entitled to deal with the schedule property. The petitioner did not pay the balance payment within the stipulated period. The agreement stood automatically terminated. The dispute which is now raised by the petitioner is not a live dispute. The existence of live dispute is a condition precedent for this Court to refer the matter to arbitration. Therefore, the petition is not maintainable and requires to be dismissed.

5. The learned Counsel appearing for the petitioner contends that even though time is the essence of the contract as stipulated and nonpayment of the balance sale consideration would render the agreement cancelled automatically, the question whether time was essence of the contract, whether the contract automatically terminated on expiry of 60 days, is a dispute to be resolved by the Arbitrator and therefore, a live dispute exists and a case for reference to arbitration is made out. It is his further contention that it is the respondent who committed the breach of the contract by not keeping the schedule property vacant within sixty days.

6. Per contra, the learned Senior Counsel Sri Vijayashankar, contends that when the language employed in the agreement is clear and