VIJENDER JAIN, J. (ORAL)

This appeal has been preferred against the order passed by the learned Single Judge dismissing the objection of the appellant under Section 34 of the Act. Mr. Markanda, learned counsel for the appellant has contended that the appellant has been awarded four independent contracts for their various projects at Petro Chemical Complex Dibiyapur, District Etawah (UP) which are as follows :

"(A) Work order no. CE/AUR/Ph-II Extn. B. Works/97A/95, dated 26.05.1995 : Balance work of construction of C-6 and D-2 Houses at GAIL Vihar Township, Dibiyapur;

(B) Work order no. CE/115/Auriaya/GAIL/GAIL Vihar Road Work/95, dated 10.02.1995 : Construction of premix bitumen carpeting and repairs of roads in GAIL Vihar Colony and Compressor Station;

(C) Work order no. CE/137/Auriaya/Ext/SER/95, dated 01.11.1995 : Construction of external sewerage line at UPPC Nagar, Dibiyapur; and

(D) Work order no. CE/136/Auriaya/Housing/95, dated 28.09.1995 : Construction of residential quarters Type A-25 units, Type B-105 units, Type C-55 units for UPPC Complex, Dibiyapur."

The dispute in question pertains to the work stated at serial no. D vide work order no. CE/136/Auriaya/Housing/95, dated 28.09.1995. The dispute raised in Section 34 of the Act was with regard to incorrect constitution of arbitral forum by the respondent. Both the sides relied upon Clause 107 of the agreement. The same is reproduced below :

"107.1 All disputes or differences whatsoever which shall at any time arise between the parties hereto touching or concerning the WORKS or the execution or maintenance thereof this CONTRACT or the rights touching or concerning the WORKS or the execution effect thereof or to the rights or liabilities or the construction meaning operation or effect whether during or after completion of the CONTRACT or whether before or after determination, foreclosure or breach of the CONTRACT (other than those in respect of which the decision of any person is by the CONTRACT expressed to be final and binding) shall after written notice by either party to the CONTRACT to the other of them and to the appointing authority hereinafter mentioned be referred for adjudication to a sole arbitrator to be appointed as hereinafter provided.

107.2 For the purpose of appointing the sole arbitrator referred to above, the appointing authority will send within thirty days of the receipt of the notice to the CONTRACTOR, a panel of three persons who shall all be presently unconnected with the organisation for which the WORK is executed.

The CONTRACTOR shall on receipt of the names, as aforesaid, select any one of the persons named to be appointed as a sole arbitrator and communicate his name to the appointing authority within thirty days of receipt of names. The appointing authority shall thereupon without any delay appoint the said person as the sole arbitrator. If the CONTRACTOR fails to communicate such selection as provided above within the period specified, the appointing authority shall make the selection and appoint the selected as the sole arbitrator.

If the appointing authority fails to send to the CONTRACTOR the panel of three names as aforesaid within the period specified, the CONTRACTOR shall send the appointing authority a panel of three names of persons who shall all be unconnected with either party. The appointing authority shall on receipt of the names as aforesaid select any one of the persons named and appoint him as the sole arbitrator. If the appointing authority fails to select the person and appoint him as the sole arbitrator within 30 days of the receipt of the panel and inform the CONTRACTOR accordingly, the CONTRACTOR shall be entitled to appoint one of the persons from the panel as the sole arbitrator and communicate his name to the appointing authority.

If the arbitrator so appointed is unable to or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another sole arbitrator shall be appoi