Hon’ble Ashwani Kumar Mishra, J.—Applicant, a Company registered under the Indian Companies Act, 1956, seeks appointment of Arbitrator, in this petition, filed under Section 11(4) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’).

2. Shorn of unnecessary details, facts relevant for our purposes are that Central Public Works Department, Varanasi Region, Varanasi, through its Executive Engineer, respondent No. 2, (hereinafter referred to as the ‘Department’) awarded a contract for civil and electrical works in favour of M/s. Era Infra Engineering Ltd., New Delhi, respondent No. 1, (hereinafter referred to as ‘Principal Contractor’) on 9.10.2009, to be carried at BHU Campus, Varanasi. A work agreement was entered into between Department and the ‘Principal Contractor’. This agreement permitted ‘Principal Contractor’ to engage an ‘Electrical Contractor’, as a ‘Sub-contractor’, for carrying out electrical works.

3. The applicant being an approved class ‘A’ CPWD contractor for electrical works was engaged as ‘Electrical Contractor’. Three work orders were issued to it on 24.6.2011, by the ‘Principal Contractor’, which contained following arbitration and jurisdiction clauses :

“2.6-Arbitration

a) Any disputes arising out of this Contract shall be referred to the sole arbitrator i.e. Managing Director of Era Infra Engineering Ltd. who may further appoint any person not below the rank of General Manager and there shall be no objection if arbitrator so appointed is an employee of Era Infra Engineering Ltd.

In case the Arbitrator to who the matter is originally referred get transferred or vacates his office or unable to act for any reason as aforesaid at the time of such transfer, vacation of office or inability to act, Managing Director, EIFL shall appoint another person to act as Sole Arbitrator in accordance with the provisions of Arbitration & Conciliation Act, 1996.

2.7-Jurisdiction

a) This Work Order is governed by the Indian Laws for time being in force. The Court of Delhi alone shall have exclusive jurisdiction in all matters arising out of this Work Order.”

4. A Memo of Understanding (MOU) was executed on 28.9.2011 between the ‘Principal Contractor’ and ‘Electrical Contractor’, duly countersigned by the Executive Engineer of the department. This MOU was to be treated as an agreement and had following provisions relating to payment to be apportioned between ‘Principal Contractor’ and ‘Electrical Contractor’ as well as resolution of dispute between them. The provisions are extracted :

“We state that M.O.U. between us will be treated as an agreement and has legality as per Indian Contract Act (amended upto date) and the Department (CPWD) can enforce all the terms and conditions of the agreement for execution of the above work. Both of us shall be responsible for the execution of work as per the agreement to the extent of this MOU allows. Both the parties shall be paid consequent to the execution as per agreement to the extent this MOU Permits. In case of any dispute, either of us will go for mediation/arbitration to the Chief Engineer (E) NZ. His decision shall be final and binding on both of us.

We have agreed as under:

1. The associated electrical contractor will execute all electrical works in the wholesome manner as per terms and conditions of the agreement. The associated electrical contractor shall be paid 80% of the value of the work by Executive Engineer (E) as per standard procedure followed by the department. Remaining 20% payment shall be paid to the main contractor simultaneously. Any type of internal transaction and mutual understanding without involving the department. Security deposit shall be deducted as per agreement. The same shall be refunded to the electrical contractor in full as per terms and conditions of the agreement.

2. The electrical contractor shall be liable for disciplinary action if he failed to discharge the action(s) and other legal action as per agreement b