The main legal point established is that when a party fails to respond to resolve disputes as mandated in the agreement, the court may appoint an arbitrator under Section 11 of the Arbitration and Conciliation Act.

This is an application filed under Section 11(6) of the Arbitration and Conciliation Act ('the Act').

2. The applicant is a construction company carrying out civil engineering construction works of high magnitude. The first respondent has awarded a construction work relating to Kochi Smart City to the applicant. An agreement for the said purpose was entered into between the applicant and the first respondent on 7.7.2014. Annexures A6 and A7 are the relevant portions of the said agreement. The case of the applicant is that though the work awarded to them by the first respondent has been completed in full, substantial amounts due to them in respect of the said work are yet to be disbursed. It is also the case of the applicant that as per the terms of the agreement, the disputes arising in connection with the execution of the work awarded to them are to be taken up at the first instance before the Development Committee for amicable settlement and if the disputes cannot be settled amicably through the Development Committee, the same have to be settled by recourse to arbitration. It is alleged by the applicant that in the light of the aforesaid provision in the agreement, they have though called upon the Development Committee to resolve the disputes amicably, there was no response from the Development Committee. Hence, this Arbitration Request.

3. Though notice was ordered in the Arbitration Request, there is no appearance for the respondents.

4. As noted above, the case of the applicant is that though they have completed the work entrusted to them, the amounts due to them in respect of the executed work in terms of the agreement are yet to be disbursed. Clause 2/3.36 of the agreement reads thus :

"2/3.36 : Settlement of disputes and Arbitration :

2/3.36.1 All disputes and differences of any kind whatsoever arising out of or in connection with the Contract or carrying out of the Works (whether during the progress of the works or after their completion and whether before or after the determination, abandonment or breach of the Contract), any claims relating to the meaning of specifications, design, drawings and instruction herein before mentioned and so as to the quality of materials or workmanship used in the Works or as to any other question, claims, right, matter whatsoever arising out of or relating to this Contract be referred to in writing as a notice to be given to the Development Committee as pursuant to Clause 2/6.10 of this Contract, and amicably settled by the Development Committee through friendly negotiations and agreement with the Contractor. A written notice specifying the decisions shall be issued within 30(thirty) days (refer Clause 2/6.1.0) by the Development Committee.

2/3.36.2 The Contractor shall not, except with the consent in writing of Development Committee, in any way delay the carrying out of the Work by reason of such matter, question or dispute being referred to arbitration but shall proceed with the work with all due diligence and shall, until the decision of the arbitrator or the tribunal, as the case may be is given, abide by the decision of the Development Committee and no award of the arbitrator shall relieve the Contractor of his obligations to adhere strictly to the Development Committee instructions with regard to the actual carrying out of the Work except as specifically affected by such award.

2/3.36.3 The decision of the Developer shall become final and binding upon the parties in the event no request for arbitration has been communicated to him by either party within a period of 30 days from the receipt of such written notice of the decision from the Developer.

2/3.36.4 All disputes or differences in respect of which the decision, if any, of the Developer has not become final or binding as aforesaid, shall be settled by arbitration, by a three member Arbitral Tribunal, in the manner hereinafter provided.

2/3.36.5 The existence of an arbitral dispute is an essential pre- condition for