The main legal point established is the determination of arbitrability of a dispute and the acceptance of belated pleas in the context of appointment of an arbitrator.

ORDER :

1. Though matter listed for admission by consent of learned advocates appearing for the parties, it is taken up for final disposal.

2. Heard Mr. Dhruvin Merchant, learned advocate appearing on behalf of Mr. Tejas K. Motwani for the petitioner and Mr.Bharat S. Patel, learned Senior Advocate appearing on behalf of Mr. Chirag B. Patel for the respondent. Perused the records.

3. Respondent herein invited tenders for construction of diary building, utility building, services, residential apartments, ancillary works along with general development works for Banas Dairy at Lucknow. Petitioner who was one of the bidders was declared successful bidder and after price negotiation and on petitioner offering revised prices, bid of the petitioner came to be accepted on 7.2.2015. Pursuant to same, parties entered into an agreement on 23.2.2015 and it was agreed thereunder that stipulated period of completion of project was 15 months commencing from 13.2.2015.

4. General conditions of the contract provided for dispute resolution if any arising order the agreement would be by arbitration.

5. Petitioner is said to have commenced construction of building on 13.2.2015 and on account of alleged delay in issuance of drawings, non-availability of work front in all areas at the same time, petitioner claims to have been handed over the work site by respondent on piecemeal basis, as a result of which petitioner had to adjust its working parameters as and when sites of land was handed over to the petitioner. It is also contended in the petition that work site was not available to the petitioner and obstructions at the site were not removed on time by the respondent. Petitioner claims to have submitted to respondent several running bills which were paid from time to time and according to the petitioner belatedly. Petitioner is said to have submitted its 26th running account bill-cum-final bill on 6.12.2017 which was certified by the respondent on 19.2.2018 and received payment on 18.4.2018. Petitioner is said to have forwarded a communication to the respondent on 31.8.2018 for release of liquidated damages withheld by the respondent and seeking thereunder extension of time which was accorded only for 7 months though claimed for 20 months and narrating chronological list of events for delay which according to petitioner was attributable to respondent. Subsequently, on account of amount demanded by petitioner not having been paid, petitioner got issued a notice on 22.2.2019 with all the narratives of its demand followed by several reminders and culminating in issuance of a legal notice dated 29.4.2019 for appointment of Sole Arbitrator. On account of demand made by the petitioner in its notice dated 29.4.2019 having not been complied, present petition has been filed.

6. Respondent on being notified has appeared and filed its reply affidavit admitting the averments made in the petition to the extent stated thereunder and expressly denying the averments which have not been traversed. The short and long of the defence raised by the respondent is: at the time of finalising the running account final bill, mutual discussion had been held and after arriving at the final amount payable, same was paid to petitioner which was received by the respondent without any demur and subsequently communication has been forwarded by petitioner making a false claim that too after receipt of the amount without any protest in order to revive a dead claim. Hence, respondent has sought for dismissal of the petition.

7. It is the contention of Mr. Dhruvil Merchant, learned advocate appearing for the petitioner that immediately after receipt of the final bill amount which has been withheld by the respondent, petitioner forwarded a communication dated 31.8.2018 narrating thereunder the delay that had occasioned in the execution of the project was attributable to the respondent itself and said communication was followed by reminders and also detailed demand raised under the communicat