JUDGMENT

Sachin Datta, J. (Oral)

ARB.P 840/2023

1. 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 respondent for "Construction of two lane with paved shoulder of Kohima-Bypass Road connecting NH-39 (New NH-02), NH-150 (New NH-02), NH-61 (New NH-29) and NH-39 (New NH-02) from Design Km 32.00 to design Km 43.454 [Design Length-11.454 Km] in the state of Nagaland under SARDP-NE on EPC Mode (Package IV)". The bid submitted by the petitioner for the said tender was accepted by the respondent vide Letter of Acceptance dated 14.08.2020. Accordingly, the petitioner and the respondent entered into the Engineering, Procurement and Construction Contract dated 05.09.2020.

3. The stipulated date for completion of the work was 18 months from the appointed date. For slow progress of work and non-completion of milestones by the petitioner, the respondent, vide letter 07.03.2023, declared the petitioner a Non-Performer. Further, vide letter dated 17.04.2023, the respondent sought to levy liquidated damages on the petitioner, and vide letter dated 22.05.2023 issued notice of intention to terminate the Contract. The petitioner contends that the sole reason the progress of work was slow and the milestones were not achieved, was the non-provision of the `Right of Way' by the respondent as per its contractual obligations.

4. A petition under Section 9 of the A&C Act has also been filed by the petitioner seeking stay of the respondent's letter dated 07.03.2023, restraining the respondent from taking any coercive or precipitative action on the basis of the letter dated 22.05.2023 and seeking status quo in relation to the Performance Bank Guarantees.

5. The Contract Agreement contains a dispute resolution 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 s