R.D. Dhanuka, J.

By this application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, the applicant seeks appointment of a sole arbitrator to adjudicate upon the disputes and differences between the parties under the Work Order dated 18th June 2013 by invoking Clause 32 of the said work order annexed at Exhibit-A to the arbitration application. Some of the relevant facts for the purpose of deciding this application are as under : -

2. The respondent issue a Work Order dated 18th June 2013 thereby appointing the applicant as a Contractor for certain works in respect of the development of a building at Kasar Wadavali, Ghodbunder Road, Thane. Clause 32 of the said work order is extracted as under : -

"Incase of any dispute, our Managing Director's decision will be final and binding on both the parties any dispute shall be referred to arbitration or any court."

3. The dispute arose between the parties. The applicant vide its advocate's letter dated 15th September 2017 called upon the respondent to pay a sum of Rs. 5,13,29,560.49 and with interest @ 18% p.a. In paragraph 28 of the said letter, the applicant pointed out clause 32 of the said work order stating that the said clause was an arbitration clause and the applicant reserved their rights to invoke the said clause. There was no response to the said letter addressed by the applicant through its advocate.

4. On 16th October 2017, the applicant through its advocate invoked clause 32 of the said work order and nominated a counsel of this Court to be the sole arbitrator and called upon the respondent to confirm the same within a period of 30 days from the date of the receipt of the said letter. In response to the said letter invoking clause 32, the respondent through its advocate's letter denied that clause 32 of the work order was an arbitration agreement. It was contended that first part of the said clause contemplates a reconciliation process whereby the decision of the Managing Director was given a finality. In the event of the dispute still persisting, the parties had option either to agree for arbitration or seek remedies through he judicial process. Clause 32 does not reveal any concluded arbitration agreement. Since the respondent refused to appoint an arbitrator, the applicant filed this application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short "the said Act") inter alia praying for appointment of a sole arbitrator.

5. Mr. Thakkar, learned counsel for the applicant invited my attention to clause 32 of the work order dated 18th June 2013 and the correspondence exchanged between the parties including the notice invoking clause 32 by the applicant, response of the respondent thereto and would submit that the said clause 32 clearly contemplated an arbitration agreement between the parties. He submits that first part of the said clause refers to dispute, decision of the managing director upon the such dispute being final and binding on both the parties and the second part of the said clause refers to arbitration or any Court. He submits that the intention of the parties is thus absolutely clear that in case of any dispute between the parties, such dispute was required to be referred to the arbitration of the Managing Director of the respondent.

He submits that however, in view of Section 12(5) read with Seventh Schedule of the Arbitration and Conciliation Act, 1996, the managing director of the respondent who was the named arbitrator would be ineligible to act an arbitrator. The applicant has thus suggested the name of a counsel of this Court to be appointed as a sole arbitrator and the said appointment shall be confirmed within a period of 30 days from the receipt of the said notice failing which the applicant would adopt appropriate remedy for seeking such appointment. He submits that the managing director of the respondent thus could not have been appointed as an arbitrator in view of the said provision under Section