The court emphasized the importance of 'express agreement in writing' to waive the bar contained in Section 12(5) of the Act and held that failure to appoint the requested Arbitrator within the specified time indicated a rejection of the request.

JUDGMENT

Raghvendra Singh Chauhan, C.J. - The present Arbitration Application has been filed under Section 11(6) the Arbitration and Conciliation Act, 1996 (''the Act' for short), for appointment of the sole Arbitrator.

2. According to the learned counsel for the applicant, the applicant is the contractor who undertakes government contracts for supplying material/goods in relation to contracts entered with the Government and the Semi-Government Organization.

3. The respondent, the Cantonment Board, had invited tenders for "repair and maintenance of roads" in the year 2016. Consequently, the applicant had submitted his rates for the work on 15.11.2016. By order dated 30.03.2017, the said tender was accepted by the respondent. Therefore, the work order contract was issued on 06.04.2017.

4. According to the work order contract, it was agreed that the respondent shall make payments within the time stipulated under the agreement. Moreover, the respondent was under the duty to clear all the bills of the applicant within 18 days' after which the amounts had become due.

5. According to the applicant, despite the fact that the work order was completed with utmost satisfaction, no payments were received by the applicant in relation to the for work orders, which are as under:-

6. Therefore, according to the learned counsel for the applicant, the respondent owes Rs.1,06,75,158.61/- along with the GST.

7. Since the respondent was not heeding to the request of the applicant, on 17.06.2020 the applicant sent a legal notice requesting the respondent to both clear the outstanding bills and, since disputes had arisen between the parties to appoint the sole Arbitrator, 'the Garrison Engineer'.

8. According to Clause 19 of the Agreement, the parties had agreed that, in case disputes were to arise, 'the Garrison Engineer' shall be appointed as the sole Arbitrator.

9. In the letter dated 17.06.2020, the applicant had clearly stated that the Garrison Engineer shall be appointed within a period of thirty days from the date of the letter.

10. According to the learned counsel for the applicant, letter dated 17.06.2020 was replied by the respondent on 14.08.2020. However, in the letter dated 14.08.2020, the respondent maintained a study silence with regard to the appointment of the sole Arbitrator. In the letter dated 14.08.2020, the respondent merely directed the applicant to submit further documents including photographs of the construction work carried out by the applicant. There was no whisper about the appointment of an Arbitrator.

11. Since, even after making a request for appointment of an Arbitrator, and due to laxity on the part of the respondent in appointing the Arbitrator, left with no other option, the applicant filed the present Arbitration Application under Section 11(6) of the Act.

12. The respondent has filed its counter-affidavit. According to Mr. B.S. Adhikari, the learned counsel for the respondent, on 15.10.2020, the respondent has appointed 'the Garrison Engineer' as the sole Arbitrator. The learned counsel for the respondent submits that, although, it is true that Section 12(5) of the Act, does contain a bar which prevents the appointment of any person whose relationship is with the parti