IMPORTANT POINT
Appointment of Arbitrator-Sub Section 5 does not prescribe any embargo for filing the petition under Section 11 of the Arbitration and Conciliation Act.

Vijender Jain, J.

1. This petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1966, inter alia praying for appointment of Sole Arbitrator to adjudicate the disputes and differences between the petitioner and the respondents, arisen out of the contract agreement dated 26.3.1993. The arbitration clause is admitted between the parties.

2. Learned Counsel appearing for the petitioner has contended that following was the Arbitration Clause 2.39 in the agreement:

If at any time any question, dispute or difference whatsoever shall arise, between the purchaser/Board and the contractor/supplier, upon or in relation to or in connection with the purchase order/contract either party may forthwith give to the other, notice in writing of the existence of such question, dispute or difference and the same shall be referred for sole arbitration of nominee of the Purchaser Board, who shall give a reasoned/speaking awards. The award of the Sole Arbitrator shall be final and binding on the parties under the provisions of the Indian Arbitration Act, 1948 and of the rules thereunder. Any statutory amendment, modification or re-enactment thereof for the time being enforce, shall be deemed to apply to and be incorporated in the Contract/Purchase order, it will not be objectionable if the Sole Arbitrator is an officer of the Board and he has expressed his views on all or any of the matters in question of dispute or difference.

(b) Upon every or any such reference, the cost of and incidental to the reference and award respectively shall be in the discretion of the Sole Arbitrator so appointed who may determine the amount thereof or direct the same to be taxed as between solicitor and client or as between party and party and shall direct by whom and to whom and in what manner the same is to be done and paid.

(c) The work under the contract shall if reasonably possible, continued during the arbitration proceedings and no payment due or payable by the Purchaser/Board shall be with-held on account of such proceedings.

3. It has been contended before me that the afore said arbitration clause was invoked by the petitioner on 7.11.1997 and thereafter the petitioner sent reminders to the respondents for appointment of the Arbitrator in terms of the arbitration clause. The petitioner served a legal notice dated 17.8.2004 ( Annexure P-15) on the respondents and, thereafter, yet another reminder was sent by the petitioner to the respondents. Having received neither any reply nor any acknowledgement, nor any vacancy having been supplied by the respondent, the petitioner did not have any other alternative, but to file a petition under Section 11 of the Arbitration and Conciliation Act, 1996 in this regard on 27.4.2005.

4. Learned Counsel appearing for the respondents Mr. Govind has contended that the petition is not maintainable as the same is time barred. It is contended by learned Counsel for the respondents that as per Section 11 Sub-section (5). of the Act, petitioner ought to have approached the Chief Justice to appoint an arbitrator within thirty days i.e. on or before 6.12.1997. Having not done so, the petitioner cannot maintain its petition as the period of more than three years has elapsed from the time cause of action accrued in favour of the petitioner. In support of this contention, learned Counsel for the respondents has placed reliance on the judgment Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority and Steel Authority of India limited v. J.C. Budharaja, Government and Mining Contractor. It has also been contended by Shri Goel that in terms of Article 137 of the Limitation Act, the right to apply had accrued to the petitioner after expiry of 30 days from the invocation of the arbitration clause on 7.11.1997, the petitioner ought to have filed a petition under Section 11 of the Arbitration and Conciliation Act, within three years from 7.12.1997. Having not done so, the petition is not maintainable and