Hon'ble Sabhajeet Yadav,J.-

Supplementary and rejoinder affidavits filed today are taken on record.

2. By this application under Section 11 (6) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the Act), the applicant has sought for appointment of an arbitrator to decide the dispute arisen between the parties. It is stated that the applicant M/s Satya Prakash & Bros. Pvt. Ltd. is a Company registered under the provisions of Indian Companies Act, 1956 and Sri Satya Prakash Gupta is Director and Principal Officer of the Company and he is duly authorised and fully competent to sign, verify, institute the present petition for and on behalf of the Company. The applicant company is working as Government Contractor under the name and style indicated herein before.

3. The material facts leading to the case are that the respondent no.2 had invited tender for construction of Cement Concrete Road in Aligarh City Portion from 131.500 to 134.370 of NH-91 in the State of Uttar Pradesh. In response to which applicant submitted its tender and was awarded work contract vide an Agreement No. 13/SE/16-2004 dated 18.9.2004 signed by the parties. Under the said agreement the execution of work was to be commenced w.e.f. 28.9.2004 and to be completed by 27.9.2005. The estimated cost of work contract was ( Rupees Nine crores fifty two lacs two thousand and eight hundred fifty nine and eighty two paise (Rs.9,52,02,859.82) only. A true attested copy of the agreement alongwith general conditions of the contract which contains an arbitration clause collectively filed as Annexure-2 to the application. It is stated that after receipt of letter for execution of work, the applicant made all necessary arrangement for labour, material and other infra-structure for execution of said work, thereafter the office of respondent no.3 vide letter dated 18.3.2006 had asked the applicant to do some additional work at the places mentioned in the said letter and the applicant was asked to intimate the rates that would be charged. In pursuance thereof the applicant quoted its rates for the said additional work vide letter dated 30.3.2006. It is further stated that vide letter dated 15.5.2006 the respondents had asked the applicant to execute the said additional work expeditiously, in response to which vide its letter dated 18.5.2006 the applicant informed the respondent no.3 that the rates of bitumen had increased enormously, therefore, without finalizing the rates it would not be possible to execute these items. However, the applicant requested for release of its pending bills. A copy of letter dated 18.5.2006 is on record as Annexure-7 to the application. It is further stated that vide its letter dated 29.8.2006 the applicant informed the respondent no.1 that the work had been completed by it but since after completion of the work the entire staff of the department was transferred to Bareilly Division and thereafter to Etawah Division, therefore, the bills may be forwarded to the concerned Division for payment of balance amount of Rs. 105 lacs. A true copy of said letter is on record as Annexure-8 to the application. Thereafter the respondents vide their letter dated 11.5.2007 raised frivolous objections, as such the applicant filed written protest vide letter dated 21.5.2007 well within specified period of 20 days as provided under Clause 32 of the General Conditions of contract. Despite thereof the Engineer Incharge insisted upon the objections raised by him and communicated to the applicant vide letter dated 4.6.2007. True copies of letters dated 21.5.2007 and 4.6.2007 are on record as Annexure-10 and 11 to the application.

4. Aggrieved by the decision of Engineer Incharge vide its letter dated 9.6.2007 the applicant requested for appointment of arbitrator as per Clause 32 and 34 of the Agreement, but when the respondents were failed to appoint arbitrator, the applicant approached this Court for appointment of arbitrator under Section 11 of the Act.

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