Honble RAFIQ, J.–The petitioners have challenged the order passed by learned District Judge dated 6-11-2000 under Section 9 and 11 of the Arbitration and Conciliation Act, 1996 as nominee of the Chief Justice appointing Shri G.L. Goyal, retired Chief Engineer, PWD as the sole Arbitrator to decide the dispute between the petitioner and the respondent no.1 in regard to execution of contract for commissioning of Water Supply Scheme at Matsya Industrial Area (South Extension), Alwar.

(2). Bone of contention between the parties is that as per the agreement between the parties the work was to be commenced from 15-12-1997 and to be completed upto 25-6-1998. While according to the Contractor he could not complete the work because the RIICO did not fulfill many of the requirements in time. The RIICO has however contested the matter by asserting that the Contractor did not have adequate infrastructure and workforce of experts and thus failed to complete the work on time. The learned District Judge by its order dated 6-11-2000 allowed the application of the Contractor and appointed Shri G.L. Goyal, retired Chief Engineer, PWD as the sole Arbitrator with the direction to deliver the award within four months.

(3). I have heard Shri Vishnu Kant Sharma, the learned counsel for the petitioners and Shri Rahul Tiwari, the learned counsel for the respondent.

(4). Shri Vishnu Kant Sharma, the learned counsel for the petitioners argued that according to Clause 23 of the agreement between the parties, the disputes was required to be referred for Arbitration to a sole Arbitrator appointed as per the procedure prescribed therein. The Additional Chief Engineer, RIICO had to refer the dispute to the Arbitration within 30 days of receipt of notice from the Contractor of his such intention by sending a list to the Contractor of three officers of the rank of Senior Regional Manager who have not been connected with the work under the contract. The Contractor was then required within 15 days of the receipt of this list to select and communicate to Additional Chief Engineer, RIICO name of one officer from such list and he was then required to be appointed as the sole Arbitrator. The learned counsel further submitted that the said clause was subject to a proviso which inter alia provided that "neither party is entitled to bring a claim to arbitration if the Arbitrator has not been appointed before the expiration of thirty days after defect liability period." He submitted that clause 37 of the agreement further provided that the amount of security deposit and performance security shall be refunded by RIICO when the defect liability period is over and defect liability period in respect of original works / special repairs / renewal works has been prescribed to be 12 months in sub-clause (2) of Clause 37 (supra). Note No.2 given below in clause 37 provides that defect liability period shall commence from the date of actual date of completion of work. Learned counsel submits that this is agreed case between the parties that the date of completion of work is 11-1-1999 and the petitioner for the first time gave the notice expressing his intention to refer the matter for adjudication by the Arbitration on 21-6-2000 which period obviously is much beyond the period of 30 days after expiry of the defect liability period. He therefore submitted that the learned District Judge has erred in law in omitting this important aspect of the matter. In spite of having received the notice, the RIICO was not obliged to refer the issue to the Arbitrator because such intention was expressed by the Contractor after more than one year and five months of the completion of the work. Learned counsel for the petitioner referred to Constitutional Bench judgment of Honble Supreme Court in and argued that in para 38-39 of the judgment, the Honble Supreme Court has held that existence of an arbitration agreement is the basic requirement for the nominee of the Chief Justice to exercise his powers

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