Honble MISRA, J.–This is an application for appointment of an arbitrator in terms of Clause 23 of the Agreement which was executed between the applicant-Construction Company and respondent No. 2-the Additional Chief Engineer, Public Works Department of the Government of Rajasthan while awarding the contract to the applicant.

(2). It is an admitted fact that a dispute is existing between the petitioner and the respondent in regard to the determination of the amount which is payable by the respondent to the petitioner for the construction work which had been undertaken and executed by the applicant and hence it is inessential to enter into its intricate details. Suffice it to say, that as per Clause 23 of the Agreement signed by the contesting parties, an arbitrator has to be appointed in the event of existence of a dispute, but the Clause is a conditional one as it is incorporated therein that the dispute first of all has to be referred to the Settlement Committee of the Department which would be constituted consisting of the Administrative Secretary concerned, (ii) Finance Secretary or his nominee not below the rank of Deputy Secretary (iii) Law Secretary or his nominee not below the rank of Joint L.R. (iv) Chief Engineer cum Addl. Secretary of the concerned department. (v) Chief Engineer concerned. However, the procedure for referring the dispute to the Settlement Committee has also been laid down under Clause 23 which stipulates that the Engineer In-charge on receipt of an application from the contractor alongwith the prescribed fee which would be 2% of the amount in dispute not exceeding Rs. one lac shall refer the dispute to the Committee within a period of one month from the date of receipt of the application. For facility of reference, relevant part of the Clause-23 is quoted herein as follows:-

``The Engineer Incharge on receipt of application along prescribed fee (the fee would be two percent of the amount in dispute not exceeding Rs. one lakh) from the contractor shall refer the disputes to the committee within a period of one month from the date of receipt of application.

(3). The dispute which has been raised by the petitioner is based on the premise that although the applicant had submitted the application for referring the dispute to the Settlement Committee on 22.8.2002 and also accompanied the same alongwith a cheque of Rs. 41,634/-, the dispute was not referred to the Settlement Committee inspite of several reminders which were never responded. Hence, the applicant had to take steps for appointment of an arbitrator by filing this application for appointment of an arbitrator by the Court in terms of Section 11 of the Indian Arbitration and Conciliation Act 1996.

(4). The applicant having made out a prima facie case in his favour for appointment of an arbitrator, a show cause notice was issued to the respondent in response to which Ms. Sumitra Goyal has submitted that the Settlement Committee constituted by the respondent is already seized of the matter but the applicant has not been cooperating as he has not been appearing before the Committee due to which the matter could not be finally decided. It was further stated that in terms of Clause 23, the dispute could be referred to the Settlement Committee within a period of thirty days from the date of receipt of the application alongwith the prescribed fee of two percent and this fee had to be deposited by the applicant contractor by submitting a cheque which was done only on 28th August 2002 and thereafter the matter was referred to the Committee on 27.9.2002 within a period of thirty days. By way of proof of this assertion the receipt issued by the Department regarding deposit of cheque has also been produced before this Court which has been perused by the counsel for the applicant Ms. Namita Parihar and alongwith it was asserted by her that the applicant had accompanied the application with the cheque, not a chit of paper has been produced before this Court in supp

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