The withdrawal of a previous petition with liberty to file a fresh one on the same cause of action does not affect the maintainability of the subsequent petition.

JUDGMENT

Anil Kshetarpal, J. - Through this petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the 1996 Act"), a prayer has been made to appoint/nominate an independent person as a Sole Arbitrator to adjudicate the disputes/differences between the petitioner and the respondents arising out of the work contract No.CA NO. GE/JAL (W) 27/17-18 of 2017-18 i.e. Provision of Certain repairs to Buildings of 27 AD Regt., 167 Med. Regt., 62 Engr. Regt. and 987 AD Jalandhar. It will be noted here that existence of the arbitration clause in the agreement is not in dispute. The respondent had issued general conditions of the contract which contained the arbitration clause. Clause 70 of the general conditions of the contract read as under:-

"70. Arbitration:- All disputes, between the parties to the Contract (other than those for which the decision of the C.W.E.F or any other person is by the Contract expressed to be final and binding) shall, after written notice by either party to the Contract to the other of them, be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender documents.

Unless both parties agree in writing such reference shall not take place until after the completion or alleged completion of the Work or termination or determination of the Contract under Condition Nos. 55, 56 and 57 thereof.

Provided that in the event of abandonment of the Works or cancellation of the Contract under Condition Nos. 52, 53 or 54 thereof, such reference shall not take place until alternative arrangements have been finalized by the Government to get the Works completed by or through any other Contractor or Contractors Agency or Agencies.

Provided always that commencement or continuance of any arbitration proceeding hereunder or otherwise shall not in any manner initiate against the Government's right of recovery from the contractor as provided in Condition 67 thereof.

If the Arbitrator so appointed resigns his appointment or vacates his office or is unable or unwilling to act due to any reason whatsoever, the authority appointing him may appoint a new Arbitrator to act in his place.

The Arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties, asking them to submit to him their statement of the case and pleadings in defence.

The Arbitrator may proceed with the arbitration, ex parte, if either party, inspite of a notice from the Arbitrator fails to take part in the proceedings.

The Arbitrator may, from time to time with the consent of the parties, enlarge, the time upto but not exceeding one year from the date of his entering on the reference, for making and publishing the award.

The Arbitrator shall give his award within a period of six months from the date of his entering on the reference or within the extended time as the case may be on all matters referred to him and shall indicate his findings, along with sums awarded, separately on each individual item of dispute.

The venue of Arbitrator shall such place or places as may be fixed by the Arbitrator in his sole discretion.

The award of the Arbitrator shall be final and binding on both parties to the Contract".

2. The petitioner was awarded civil construction work which is claimed to have been completed, however, the entire amount thereof has not been released. A request for appointment of an Arbitrator, submitted on 07.02.2020, has failed to invoke any positive response.

3. In any case, now, on or after 23.10.2015, a party to the contract does not have right to act as an Arbitrator or nominate an Arbitrator. On notice of motion, Mr. Praveen Chander Goyal, Advocate, has entered appearance on behalf of the respondents.

4. The only objection taken by learned counsel for the respondents is that a previous petition filed by the petitioner, was permitted to be withdrawn with liberty to file fresh one on the same cause of action vide order dated 22.07.2020,