The conciliation process in the contract agreement was not mandatory, and non-compliance did not bar the petitioner from invoking arbitration.

JUDGMENT

Sachin Datta, J. The present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (the "A&C Act") seeks appointment of an independent sole arbitrator to adjudicate the dispute between the parties.

2. The disputes between the parties have arisen in the context of a tender process initiated by the respondents for work of "Strengthening of Km. 572/000 to 609/000 (Tarsada-Kanja-Vyara-Kapura Section) of N.H.-56 in the State of Gujarat on EPC Mode". The petitioner submitted its bid for the work on 25.05.2021. The bid of the petitioner was found to be lowest and it was issued a Letter of Intent dated 03.07.2021. The petitioner was thereafter called upon to furnish Security Deposit and Performance Bond. The petitioner complied with the said requirements and the said work was consequently awarded in favour of the petitioner vide work order dated 02.08.2021. The stipulated period of completion of the work was nine months from the date of the work order and thus the work was required to be completed on or before 01.05.2022. The said work could not be completed within the stipulated time period. Consequently, certain disputes have arisen between the parties.

3. Article 26 of the contract agreement between the parties contains an arbitration clause in the following terms:

"Article 26

Dispute Resolution

26.1 Dispute Resolution

(i) Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement (including its interpretation) between the Parties, and so notified in writing by either Party to the other Party (the "Dispute") shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 26.2.

(ii) The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any Dispute.

26.2 Conciliation

In the event of any Dispute between the Parties, either Party may call upon the Authority's Engineer, or such other person as the Parties may mutually agree upon (the "Conciliator") to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Conciliator or without the intervention of the Conciliator, either Party may require such Dispute to be referred to the Chairman of the Authority and the Chairman of the Board of Directors of the Contractor for amicable settlement, and upon such reference, the said persons shall meet no later than 7 (seven) business days from the date of reference to discuss and attempt to amicably resolve the Dispute. If such meeting does not take place within the 30 (thirty) business day period or the Dispute is not amicably settled within 30 (thirty) days of the meeting or the Dispute is not resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in writing referred to in Clause 26.1.1 or such longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Clause 26.3 but before resorting to such arbitration, the parties agree to explore conciliation by the Conciliation Committees of Independent Experts set up by the Authority in accordance with the procedure decided by the panel of such experts and notified by the Authority on its website including its subsequent amendments. In the event of the conciliation proceedings being successful, the parties to the dispute would sign the written settlement agreement and the conciliators would authenticate the same. Such settlement agreement would then be binding on the parties in terms of Section 73 of the Arbitration Act. In case of failure of the conciliation process even at the level of the Conciliation Committee, either pa