JUDGMENT :

JASGURPREET SINGH PURI, J.

1. The present is a petition filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’), seeking appointment of an independent arbitrator in the present case.

2. Learned counsel for the petitioner submitted that there exists a valid work agreement between the parties, wherein an arbitration clause exists. The same has been attached with the present petition as Annexure P-1 and at Paragraph No.70 it has been so provided that all disputes, between the parties to the Contract (other than those for which the decision of the CWE 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 serving officer having degree in engineering or equivalent or having passed final/direct final examination of Sub Division-II of Institution of Surveyor (India) recognized by Government of India, to be appointed by the authority mentioned in the tender documents.

3. He submitted that in the aforesaid arbitration clause, it has been so provided that sole arbitrator shall be the serving officer of the respondent which otherwise is not permissible because of conflict of interest in view of Section 12(5) of the Act. He further submitted that since disputes arose between the parties, the petitioner invoked the aforesaid arbitration clause by issuing a notice under Section 21 of the Arbitration and Conciliation Act, 1996 to the respondents, vide Annexure P-9 dated 26.05.2023, however, no response has been received from the respondents. Rather, repeated requests were made in this regard and therefore, he submitted that this Hon’ble Court may appoint an independent and impartial arbitrator for adjudicating the dispute.

4. On the other hand, learned counsel appearing for the respondents submitted that there is no dispute with regard to the existence of the agreement, the arbitration clause contained therein, or the service of notice upon the respondents. However, the objection raised by the learned counsel for the respondents is that vide Annexure R-1 dated 16.03.2021, the petitioner had given an undertaking, wherein it was stated that he will not resort to arbitration/court proceedings. He further submitted that once the petitioner had given such an undertaking to the respondents way back in the year 2021, the petitioner cannot now invoke the arbitration clause and seek appointment of an independent arbitrator and rather, he is estopped from seeking appointment of an arbitrator in view of the aforesaid undertaking, Annexure R-1.

5. I have heard the learned counsels for the parties.

6. The agreement between the parties, the existence of the aforesaid arbitration clause, as well as the notice invoking the arbitration clause are not disputed by the learned counsel for the respondents. However, an objection has been raised by the learned counsel for the respondents–UOI that vide Annexure R-1, the petitioner had given an undertaking on 16.03.2021 by so stating that he will not resort to arbitration or court proceedings. During the course of arguments, this Court put a specific query to the learned counsel for the petitioner as to under what circumstances such an undertaking was given, to which he submitted that the said period was the COVID period as the undertaking is dated 16.03.2021 and the construction work was not completed at that time and in order to complete the construction work, such an undertaking was given, which is not binding upon the petitioner so far as invocation of the arbitration clause is concerned, as any undertaking given in restraint of arbitration or court proceedings is non-est and void.

7. A perusal of the aforesaid Annexure R-1 dated 16.03.2021 would show that the petitioner had given an undertaking to the effect that it would not resort to arbitration or court proceedings. On a query being raised to both the learned cou