ORDER :

1. The prayer made in the present application filed under Section 11(6) of the Arbitration and Conciliation Application Act, 1996 (hereinafter referred to as the “Act”) is for appointment of an Arbitrator for resolution of dispute between the parties.

2. The arguments, raised by learned counsel for the applicant, are that upon participating in the tender, the applicant-firm was issued Work Order No. 15 dated August 18, 2015 for construction of 30 bedded hospital in Cantt. General Hospital, Kanpur. As per applicant-firm, when after completion of the work final bill amounting Rs.3,17,98,239.70 was produced for payment, an amount of Rs.53,60,466.51/- remained unpaid. The applicant kept on requesting the respondents to release the balance payment, however, when for quite long time, the payment was not made despite repeated requests made by the applicant-firm, the applicant invoked arbitration clause as contained in Clause 25 of General Conditions of Contract for Central P.W.D. Works, 2014 seeking appointment of an Arbitrator for resolution of dispute between the parties, for the purpose notice dated July 9, 2021 was issued. However, respondents vide letter dated October 8, 2021 refused to appoint Arbitrator stating that there is no need for appointment of Arbitrator as Clause16 of the contract agreement dated December 26, 2014 excludes the dispute from the purview of arbitration and it shall be decided by the Board which shall be conclusive and binding on the contractor.

3. He further submitted that rejection of request of the applicant for appointment of Arbitrator placing reliance on Clause 16 of agreement is totally illegal as in terms of the Clause-16 of the agreement, the decision taken by the respondent is final and thus no remedy is left with the applicant. Any such condition would be in violation of Section 28 of the Contract Act, as the applicant cannot be made remediless for resolution of his grievance.

4. On the other hand, learned counsel for the respondent submitted that entire amount due to the applicant has already been paid, hence there is no dispute pending for which Arbitrator need be appointed.

5. He further submitted that there was no sanction granted for the additional work allegedly executed by the applicant, hence, no payment could be made. Regarding application of Clause-16 of the agreement dated December 26, 2014, he submitted that 25 of General Conditions of Contract provides that the same shall be applicable except where otherwise provided in the contract. In the case in hand, Clause-16 of the agreement dated December 26, 2014 clearly provides that the decision on the issue by the Board/CEO will be final and thus no arbitrator can be appointed.

6. Heard learned counsel for the parties and perused the record.

7. Clause 25 of General Conditions of Contract provides for an arbitration clause. It reads as under:

Clause 25

Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, design, drawings and instructions herein before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter:

(i) If the contractor considers any work demanded of him to be outside the requirements of the contract, or disputes any drawings, record or decision given in writing by the Engineer-in-Charge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the Superintending Engineer in writing for