M.R. SHAH, J.

1. Present petition has been preferred by the petitioner - DIC-NCC (JV), a Joint Venture of M/s. Daelim Industrial Co. Ltd. And Nagarjuna Construction Co. Ltd., having its office at Ahmedabad under Sec.11 of the Arbitration and Conciliation Act, 1996 to appoint an Arbitrator to resolve the dispute between the parties arising out of the Work Order dt. 22/6/2005.

2. It is the case on behalf of the petitioner that by Work Order dt. 2/2/2006 Labour Rate Contract for ROB's Grade Separator and Slab/Box Culverts, including pile foundation for rehabilitation and upgrading of Garamore - Gagodhar Section of NH- 8A and NH-15 from Km.254+000 to Km.308+000 and from Km.281+300 to Km.245+000 (Pkg-IV). IT is the case on behalf of the petitioner that work in question was executed in Rajkot District and the petitioner had issued work order to the respondent in Gujarat.

It is the case on behalf of the petitioner that the disputes arose between the parties, and the petitioner was constrained to terminate the contract vide letter/communication dt. 20/11/2006. It is the case on behalf of the petitioner that after termination of the contract final bill and claims were submitted by the respondent vide letter dt. 18/1/2007 which was replied by the petitioner on 23/1/2007. It is the case on behalf of the petitioner that along with the subsequent letter dtd.23/4/2007, details of measurement, payment made, reconciliation of materials issued, etc were intimated to the respondent and the respondent was informed that an amount of Rs.12,61,115=19 ps. was required to be paid to the petitioner and accordingly notice was also served on 17/9/2007 thorough Advocate Mr. S.T. Zumkawala. It is submitted on behalf of the petitioner that since the requirements of the aforesaid notice were not complied with, by further notice dt. 16/1/2009 once again the respondent was given chance and opportunity to clear outstanding amount of Rs.12,61,115=19 ps. It is submitted that notice dtd.16/1/2009 was replied by Advocate Mr. Vinod B. Mathur and Company on 3/3/2009. It is the case on behalf of the petitioner that thereafter by notice dtd.27/4/2009 the petitioner invoked arbitration clause ? and requested the respondent to agree to one name to appoint as Arbitrator to resolve the dispute. It is the case on behalf of the petitioner that since the respondent had not agreed to any name suggested in the notice dt. 27/4/2009, the petitioner once again called upon the respondent by notice dt. 31/7/2009 to agree with the name of Hon'ble Mr. Justice M.S. Parikh, Former Judge of the Gujarat High Court and Chairman, State Consumer Commission, as Sole Arbitrator within a period of 30 days from the date of receipt of the said notice, failing which the petitioner shall be compelled to approach this Court as per the provisions of Sec.11 of the Arbitration and Conciliation Act, 1996. It is the case on behalf of the petitioner that though the said notice dtd.31/7/2009 has been served upon the respondent, the same has not been replied by the respondent and therefore, the petitioner has approached this Court to appoint sole Arbitrator to resolve the disputes between the parties.

3. Mr. K.G. Sukhwani, learned Advocate appearing on behalf of the petitioner has submitted that there is a dispute between the parties arising out of the Work Order/Agreement dtd.22/ 6/2005 and therefore, as per clause 30 of the Work Order/Agreement dtd.22/ 6/2005, the dispute is required to be referred for adjudication to a sole Arbitrator. Therefore, it is requested to appoint sole Arbitrator as the respondent has failed to agree with the appointment of the sole arbitration for adjudication of the disputes between the parties under the Work Order/ Agreement dtd.22/6/2005.

4. In response to the notice issued by this Court, Mr. Sudhakar Joshi, learned Advocate has appeared on behalf of the respondent. Preliminary objection has been raised on behalf of the respondent with respect to maintainability of th