M.Y. Eqbal, J.

1. This writ application is directed, against the order dated 20.8.2004 passed by the learned Chief Justice of this Court in AA Nos. 3 and 5 of 2004 in purported exercise of power Under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act) whereby the application filed by the petitioner for appointment of Arbitrator has been rejected.

2. The facts of the case lie in a narrow compass:

The petitioner-firm was allotted three contracts relating to widening of road at National Highway No 23 at different stages. These works were identified as job Nos. 515, 516 and 538. Petitioners case is that it completed both the works within the stipulated time to the satisfaction of the respondents- authorities, but due to some poor sanctioned specification in the agreement itself, the construction work which was carried out, subsequently became damaged and petitioner was directed to repair the same even after the lapse of liability period and accordingly almost all the repair work was completed. Thereafter dispute between the parties cropped up and since then the respondent- authorities have been trying to shift their liability on the petitioner. The respondents-authorities have made the entire payment for job No. 538 except Rs, 20 lacs which was adjusted against the excess payment for the work relating to job No. 516. The petitioner alleged to have requested the respondents to finalise the entire bills of job Nos. 515 and 516 and close the agreement. It also requested not to make any deduction of any amount from the bills. The respondents having disputed the claim of the petitioner contended that they were entitled to make adjustment as the contractor had breached the agreement.

3. The petitioner thereafter filed a writ petitioner being WPG No. 6754 of 2002 for a direction Lo the respondents to close the agreement, of job Nos. 515 and 516 after final accounting and also for quashing the order of adjustment. The said writ application was disposed of on 31.1.2003 by this Court with the observation that, the matter is indirectly a money claim and, therefore, the writ petitioner can avail the alternative remedy of arbitration or may move the civil Court of competent jurisdiction. The petitioner challenged the said order by filing Letters Patent Appeal being LPA No. 119 of 2003 which was dismissed on 16.1.2004, The petitioner, thereafter, filed applications Under Section 11(6) of the said Act which were registered as AA No. 3 of 2004 and AA No. 5 of 2004 seeking a direction for appointment of an Arbitrator as per Clause 23 of the contract entered into between the parties. The said applications were rejected by the learned Chief Justice by passing the impugned order.

4. The learned Chief Justice held that. there was no valid or legal arbitration clause in the contract entered into by the petitioner and, therefore, there was no question of referring the dispute for arbitration.

5. Mr. Navniti Prasad Singh, learned counsel appearing for the petitioner assailed the impugned order as being contrary to law and the facts available on record. Learned counsel submitted that Clause 23 of the contract entered into between the parties contained an arbitration clause and since disputes have arisen, the Chief Justice has no option but to appoint Arbitrator and refer the dispute for adjudication by the Arbitrator. Learned counsel further submitted that no adjudication by the Chief Justice or his nominee is contemplated in such an application and even the question whether there did exist arbitration clause, had to be left Lo the Arbitrator to adjudicate upon. Learned counsel submitted that the question with regard to existence or validity of the arbitration clause of the contract-can be decided only by the Arbitrator and not in a proceeding Under Section 11(6) of the said Act. In this connection learned counsel relied upon the decisions of the Supreme Court in the case of Konkan Railway Corporation L