The appointment of an Arbitrator comes after the decision of the Adjudicator, and the Adjudicator and the Arbitrator are two distinct forums for dispute resolution under the contract.

JUDGMENT :

1. Heard Mr. Vivek Tyagi, learned Deputy Government Counsel appearing for the applicant/petitioner and Mr. Manish Kataria, learned counsel for the respondent.

2. The petitioner has applied for appointment of an independent Arbitrator in accordance with the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’), in terms of Clause 25(3) of the Conditions of the Contract.

3. The petitioner entered into a contract on 11.11.2003 with the respondent for rehabilitation of left main canal and its distribution system of Gudha Irrigation Project, Bundi in Rajasthan. The respondent-Contractor raised a claim on 03.07.2008 for payment of the remaining amount for the work done. The said claim was referred to the Adjudicator, who decided the same vide order dated 06.04.2018. The claim of the respondent-Contractor was allowed in part, therefore, the petitioner in accordance with the arbitration clause 25(2) demanded reference of the above decision to the Arbitrator. Since the said demand was not fulfilled, the petitioner has approached the Court.

4. There appears to be no dispute with regard to reference of the matter to the Adjudicator and both the sides rely upon a decision of this Court dated 27.07.2012 passed in S.B. Arbitration Application No.102/2019- Department of Water Resources, Government of Rajasthan Vs. M/s Subhash Infraengineers Pvt. Ltd., whereby the learned Single Judge has referred the decision of the Adjudicator to the Arbitrator.

5. Under the Conditions of the Contract, clause 1.1 defines “Adjudicator”, who is a person appointed jointly by the Employer and the Contractor to resolve the disputes in the first instance, as provided for in Clauses 24 and 25 of the Contract. Clause 24 of the Contract provides about the disputes and clause 24.1 provides that where the Contractor believes that the decision of the Engineer was either outside his authority or is otherwise wrong, the matter shall be referred to the Adjudicator within 14 days of the notification of the decision of the Engineer. The Adjudicator is mandated to give decision in writing within 28 days of the receipt of the dispute. Clause 25.2 of the Contract further provides that either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of his decision and the arbitration shall be conducted in accordance with the arbitration procedure stated in the Special Conditions of the Contract. In view of the Conditions of the Contract, as enumerated above, the disputes between the parties are first to be referred to the Adjudicator and thereupon, if necessary, to an Arbitral Tribunal.

6. In the case at hand, the respondent-Contractor raised a claim for payment of the remaining amount of the work done on 03.07.2008. The said claim was referred to the Adjudicator in terms of Clause 24.1 of the Contract and one Mr. O.P. Saxena was appointed as the Adjudicator. The said Adjudicator vide his letter dated 10.10.2008 refused to adjudicate the matter. Accordingly, the respondent-Contractor demanded a fresh reference to the Adjudicator and submitted a notice dated 29.10.2010. The respondent-Contractor thus filed S.B. Arbitration Application No.57/2011 seeking reference of the dispute to a new Adjudicator. The Court vide order dated 03.05.2012, treating the said application to be one for appointment of an Arbitrator, disposed of the same appointing Mr. R.D. Meena, retired Chief Engineer, Irrigation Department as the Adjudicator to adjudicate the dispute.

7. Unfortunately, the aforesaid Adjudicator died without adjudicating the dispute. Accordingly, a fresh S.B. Misc. Arbitration Application No.19/2014 was filed by the respondent-Contractor for referring the dispute to an Adjudicator under Clause 24.1 of the Conditions of the Contract. The said application was disposed of by this Court vide order dated 29.07.2016 and one Mr. L.K. Agarwal, retired Chief Engineer, Water Resources Department, Jaipur, Rajast