JUDGMENT :

(Rajeev Misra, J.)

Heard Mr. Dinesh Gupta along with Mr. Satya Prakash, the learned counsel for applicant and the learned Standing Counsel representing opposite party.

2. Perused the record.

3. This application under section 11(4) of the Arbitration and Conciliation Act, 1996 has been filed by applicant for a direction that an Arbitrator be appointed to fill the vacancy in the Arbitral Tribunal (comprising of three Arbitrators) which was already continued by opposite party-1 itself or in the alternative appoint a sole arbitrator, to resolve the dispute between the parties.

4. Record shows that parties entered into an agreement, vide Contract Bond No. 08/SE-SRE/2010-11, dated 13.09.2008 for continuation of a bridge over the Yamuna River at Clause 25.3 of the General Condition of Contract contains an arbitration clause for redressal of the dispute arising out of the contract entered into by the parties. For ready reference, Clause 25.3 of the agreement is reproduced herein under:-

"Arbitration (GCC Clause 25.3)

The procedure for arbitration will be as follows:

25.3 (a) In case of Dispute or difference arising between the Employer and a domestic contractor relating to any matter arising out of or connected with this agreement, such disputes or difference shall be settled in accordance with the Arbitration and Conciliation Act, 1996. The parties shall make efforts to agree on a sole arbitrator and only if such an attempt does not succeed and the Arbitral Tribunal consisting of 3 arbitrators one each to be appointed by the Employer and the Contractor and the third Arbitrator to be chosen by the two Arbitrators so appointed by the Parties to act as Presiding Arbitrator shall be considered. In case of failure of the two arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the Council, Indian Roads Congress

(b) The Arbitral Tribunal shall consist of three Arbitrators one each to be appointed by the Employer and the Contractor. The third Arbitrator shall be chosen by the two Arbitrators so appointed by the Parties, and shall act a presiding arbitrator. In case of failure of the two arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding arbitrator shall be appointed by the Council, Indian Roads Congress.

(c) If one of the parties fails to appoint its arbitrator in pursuance of sub-clause (a) and (b) above within 30 days after receipt of the notice of the appointment of its arbitrator by the other party, then the * Council, Indian Roads Congress shall appoint the arbitrator. A certified copy of the order of the Council, Indian Roads Congress, making such an appointment shall be furnished to each of the parties.

(d) Arbitration proceedings shall be held in India, and the language of the arbitration proceedings and that of all documents and communications between the parties shall be English.

(e) The decision of the majority of arbitrators shall be final and binding upon both parties. The cost and expenses of Arbitration proceedings will be paid as determined by the arbitral tribunal. However, the expenses incurred by each party in connection with the preparation, presentation, etc. of its proceedings as also the fees and expenses paid to the arbitrator appointed by such party or on its behalf shall be borne by each party itself.

(f) Performance