Failure to give notice invoking the arbitration Clause renders the application under Section 11 premature.

JUDGMENT

Prakash Shrivastava, CJ. - This application under Section 11(6) of the arbitration and Conciliation act, 1996 has been made by the applicant for appointment of sole arbitrator to resolve the dispute.

2. Undisputedly, the Letter of acceptance dated 03rd May, 2016 was issued by the respondent in favour of the applicant accepting the tender and awarding the contract for the work specified in Clause 2 of the LOa. The dispute had arisen between the parties, therefore, in terms of general conditions of contract, applicant had exhausted the remedy of settlement and conciliation. The relevant clause relating to arbitration is as under:

'73.2 Conciliation/arbitration

73.2.1 It is a term of this contract that Conciliation/arbitration of disputes shall not be commenced unless an attempt has first been made by the parties to settle such disputes, within 120 days of submission of monthly statement of such claim, through mutual settlement.

73.2.2 In the event of failure to resolve any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the Employer of any certificate to which the contractor may claim to be entitled to, through mutual settlement, the Contractor may refer such matters to the Chairman and Managing Director in writing within 60 days from the date of failure of amicable settlement of such disputes or differences for settlement through Conciliation.

If the efforts to resolve all or any of the disputes through Conciliation fails, the Contractor may refer to the Chairman and Managing Director of the Employer for settlement of such disputes or differences through arbitration. No disputes or differences shall be referred to arbitration after expiry of 60 days from the date of notification of the failure of Conciliation.

73.2.3 The demand for Conciliation or arbitration shall specify the matters which are in question, or subject of the dispute or difference as also the amount of claim item wise. Only such dispute (s) or difference (s) in respect of which the demand has been made, together with counter claims or set off, given by the Employer, shall be referred to Conciliation or arbitration and other matters shall not be included in the reference.

73.2.3(1) The arbitration proceeding shall be assumed to have commenced from the day, a written and valid demand for arbitration is received by the Employer.

93.4(a)(i) Sole Conciliator/Sole arbitrator:

In cases where the total value of all claims/counter-claims in question added together does not exceed Rs. 2.00 Crore (Rupees Two Crores), the arbitral Tribunal shall consist of a sole arbitrator who shall be an officer of IRCON not below GM level, nominated by the Chairman and Managing Director.

The sole arbitrator shall be appointed by the Chairman and Managing Director of the Employer within 60 days from the day when a written and valid demand for arbitration is received by the Employer.

73.4(a)(ii) arbitration Tribunal:

In cases where the total value of all claims/counter-claims exceeds Rs. 2.00 Crore, the arbitral Tribunal shall sonsist of a panel of three Officers not below GM level.

For this purpose, the Employer will send a panel of more than 3 names to the contractor, within 60 days from the day when a written and valid demand for arbitration is received by the Employer. Contractor will be asked to suggest to the Chairman and Managing Director atleast 2 names out of the panel for appointment as the contractor's nominee within 30 days from the date of dispatch of the request by the Employer. The Chairman and Managing Director shall appoint at least one out of them as the contractor's nominee and will, also simultaneously appoint the balance number of arbitrators either from the panel or from outside the panel, duly indicating the 'presiding arbitrator' from amongst the 3 arbitrators so appointe