( 1 ) THIS is a petition under Section 11 of the arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) seeking appointment of a sole Arbitrator for settlement of the claims/disputes raised by the petitioner.

( 2 ) THE petition has been made with the averments that the petitioner-company was awarded the work for erection, testing, commissioning and trial operation of 1x100 TPH HRSG set at IOCI Mathura Refinery Co. Gen. Plant Phase III, Mathura (UP) by the respondents by means of letter of intent dated 23. 10. 2003. The contract contains an Arbitration Agreement which provides that all disputes between the parties arising out of or in relation to the contract, other than those for which the decision of the Engineer or any other person is by the contract expressed to be final and conclusive, shall after written notice by either party to the other party, be referred to sole arbitration of the General Manager or his nominee. The arbitration was to be continued in accordance with the provisions of the Arbitration and conciliation Act, 1996. It is alleged that disputes/differences arose between the parties and so by a noticed dated 18. 10. 2004, the petitioner invoked the arbitration and called upon the respondent to appoint the arbitrator within 30 days of the receipt of the said notice. It is alleged that the respondent failed to do so and hence this petition.

( 3 ) ON being noticed by the Court, the respondents opposed the present petition by filing a reply thereby raising preliminary objections that the petition is misconceived because the respondent has taken prompt steps to appoint the Sole Arbitrator in accordance with the Arbitration Agreement and the Arbitrator was appointed within 30 days from the date of receipt of the letter of the petitioner, even though no such time limit is applicable in this case and that the Arbitrator so appointed has entered the reference and has commenced the proceedings. It is stated that the notice dated 18. 10. 2004 issued by the petitioner was received in the office of the respondent in the evening of 29. 10. 2004 only and after completing the procedural requirements, the sole Arbitrator was appointed on 29. 11. 2004 before any notice of the present petition was received by the respondent from this Court. It has been prayed that the sole Arbitrator so appointed by the respondent may continue to act as the Arbitrator as no prejudice has been caused to the petitioner by continuance of the said arbitrator. It is denied that after the appointment of the Sole Arbitrator by the respondent, the petitioner is entitled to the appointment of another Arbitrator by this court.

( 4 ) IN the rejoinder filed on behalf of the petitioner, the objections and pleas raised in the reply of the respondent have been controverted and averments and allegations made in the petition are reiterated. It is not denied that vide a letter dated 29. 11. 2004 the respondent appointed the sole Arbitrator but it is denied that the appointment of the Sole Arbitrator was made within the stipulated period and consequently it is pleaded that the appointment of the Sole Arbitrator beyond the time limit is illegal and invalid. It is also pleaded that the respondent has forfeited its right to appoint the Arbitrator after the expiry of the stipulated period, and, therefore, the petitioner is within its rights to seek the appointment of an independent Arbitrator other than the Sole Arbitrator envisaged in the Arbitration Agreement or the one appointed by the respondent.

( 5 ) AS the Sole Arbitrator appointed by the respondent had entered into the reference, the petitioner moved an application IA No. 453/2005 under section 9 of the Act praying for the stay of the arbitral proceedings before the Sole Arbitrator Shri Jitender kumar and for the stay of the order dated 5. 1. 2005 passed by the said Arbitrator in the said proceedings. Vide an order dated 17. 3. 2005, this Court directed that the proceedings