1. Both the petitioner-contractor and respondent-cooperative society have filed applications under Sections 30 and 33 of the Arbitration Act, 1940 (hereinafter referred to “Act, 1940”) impugning the sole Arbitrator, Ms. Justice (Retd.) Leila Seth's Award dated 1st December, 1998.

2. While I.A. 8707/1999 has been filed by respondent-cooperative society impugning the Award on merits, I.A. 7748/1999 has been filed by petitioner-contractor challenging the Award on the preliminary issue whereby the sole Arbitrator after relying upon Clause 6 of the Agreement dated 8-2-1984 has held that petitioner-contractor's right to seek arbitration stood extinguished on the ground that petitioner-contractor had not given notice to arbitrate within 28 days of receipt of the Architect's decision.

3. Briefly stated the facts relevant for the present case are that on 20th September, 1983 respondent-cooperative society floated a tender for construction of 150 flats at Paschim Vihar, New Delhi and the work was awarded to petitioner-contractor vide Agreement dated 8-2-1984.

4. On 14th December, 1987 the Architect certified the petitioner-contractor's final bill for an amount of Rs. 9,47,043 along with a sum of Rs. 13,50,600/-. But respondent-cooperative society withheld the other certified amount of Rs. 13,50,600/- on account of alleged defects.

5. On 24th December, 1987, petitioner-contractor raised certain grievances against the said act of respondent-cooperative society and requested for an amicable resolution of the same.

6. Though on 1st January, 1988 flats were handed over to members of the respondent-cooperative society, only a cheque for Rs. 9,00,000/- was released on 30-1-1988 to petitioner-contractor who accepted the same as a part payment.

7. On 16-1-1989 the Architects' firm issued another certificate stating therein that defects had been rectified and directed release of payment of Rs. 13,50,600/-. However, the Architect stated that a sum of Rs. 50,000/- be retained for a period of three months for maintenance of the building.

8. On 12th May, 1989 petitioner-contractor sent a legal notice giving last opportunity to respondent-cooperative society to settle the accounts, within a period of thirty days. Since petitioner-contractor was not satisfied with the reply received from the respondent-cooperative society, petitioner-contractor invoked the arbitration clause and vide its letter dated 1st August, 1989 sought appointment of an arbitrator. On 21st September, 1994 a learned Single Judge of this Court referred the disputes between the parties in accordance with arbitration clause for adjudication.

9. Upon an appeal being filed by the respondent-cooperative society being FAO(OS) 286/1994, a Division Bench of this Court at the instance of both the parties referred the disputes for adjudication to Ms. Justice Leila Seth, former Chief Justice of Himachal Pradesh High Court. The said order dated 9th December, 1994 is reproduced hereinbelow for ready reference :-

“FAO(OS) No. 286/94

The parties before us are agreed that the subject matter of the dispute may be referred to arbitration. Learned counsel for the parties have left it to the Court to suggest the name of the Arbitrator. We accordingly appoint Justice Leila Seth, Former Chief Justice Himachal Pradesh High Court as the Arbitrator in this case. The Registry will send the copy of the papers to the learned Arbitrator along with addresses of the parties as well as the counsel. This appeal is accordingly disposed of.

Appellant's counsel agrees that after the award is made the appellants will bear one half of the fee stipulated by the Arbitrator. The appellants will reimburse the respondents for one half of the fee paid by the respondents to the Arbitrator within 4 months from the date of such payment. Initially, the respondents shall pay the fee to the Arbitrator as may be fixed by her.”

10. As stated hereinabove, the sole Arbitrator after holding that the arbitration clause had not be