JUDGMENT :

1. The instant arbitration application has been filed by the applicant-Firm (carrying on the business of Civil Constructions, Road Constructions and all civil works assigned to it by the Public Works Department), under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘Act of 1996’) claiming the following reliefs:-

“(i) by an appropriate order or direction, the Hon’ble Court may appoint an impartial Arbitrator invoking the powers under Section 11(6) of the Act of 1996 with directions to enter into reference, complete the proceedings and pass the award within such time as may be determined by this Hon’ble Court.

(ii) Any other appropriate order or direction which this Hon’ble Court may deem fit just and proper in the facts of the case may kindly be passed in favour of the petitioner.”

2. A contract was executed between the applicant and the respondents on 26.05.2015, but on count of certain dispute arose between them, the applicant served a notice dated 14.01.2016 demanding the due amount; thereafter, the applicant again served a legal notice through its Counsel on 17.09.2016 and demanded the due amount, along with compensation; failing which, the applicant would initiate a proceeding for appointment of an Arbitrator. But despite the same, the grievance of the applicant was not redressed by the respondents.

2.1. The applicant thereafter, filed an application under Section 8 of the Act 1996 before the learned District Judge, Bikaner, which was then was transferred to the learned Commercial Court, Jaipur; the said application was rejected on 17.02.2018 on the ground of the same not being maintainable; the applicant should file an application for appointment of an Arbitrator before the appropriate forum, as per law. Thereafter, when the grievance of the applicant still subsisted, the present application has been preferred claiming the afore-quoted reliefs.

3. Learned counsel for the applicant submitted that the respondents have not paid the due amount of the work as per the contract in question, and therefore, it is necessary to refer the dispute for arbitration and thus, an arbitrator may be appointed, as per the clause 24 and 25 of the contract in question.

Clause 24 and 25 are reproduced as hereunder:

“24. Disputes

24.1 If the Contractor believes that a decision taken by the Engineer was either outside the authority given to the Engineer by the Employer or that the decision was wrongly taken, the decision shall be referred to the Adjudicator within 28 days of notification of the Engineer’s decision. Performance under the contract shall continue notwithstanding the reference to the Adjudicator, and payments by the Employer to the Contractor will not be withheld unless they are the subject matter of dispute. If the Contractor fails to refer the matter to the Adjudicator within the said period, the Employer will stand discharged from all the responsibility including financial claim from the Contractor.

25. Procedure for Resolution of Disputes

25.1 The Adjudicator shall give a decision in writing within 56 days of receipt of a notification of a dispute. The decision shall be a reasoned decision.

25.2 The Adjudicator shall be paid daily at the rate specified in the Contract Data together with reimbursable expenses to the types specified in the Contract Data and the cost shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Adjudicator. Either party may refer a decision of the Adjudicator to Arbitration within 28 days of the Adjudicator’s written decision. Arbitration shall be under the Arbitration and Conciliation Act, 1996. If neither party refers the dispute to Arbitration within the above 28 days, the Adjudicator’s decision will be final and binding on both the parties.

25.3 Should the Adjudicator resign or die or be incapable, or should the Employer and the Contractor jointly agree that the Adjudicator is not fulfilling his functions