ORDER

1. The petitioner has filed this MCC under Section 11 (6) of the Arbitration and Conciliation Act, 1996 seeking the appointment of an Arbitrator in order to resolve the dispute with the respondents.

2. Petitioner is a company registered under the Companies Act engaged in construction work. The petitioner entered into an agreement vide work order dated 16.12.1996 with the respondent for the construction of 60 T 3 quarters for GPRA at Bilore Compound, Indore. The total period of completion of work was 18 months, which was liable to the extended by the respondents. According to the petitioner, the work was completed on 01.04.2000 to the tune of Rs.1,97,57,325/- against which the respondents paid Rs.1,72,71,145/-. Clause 25 of the agreement provides the resolution of the dispute by way of arbitration. The petitioner sent a letter dated 18.12.2000 invoking clause 25 of the arbitration. Respondent No.1 vide letter dated 20.05.2002 demanded the documentary evidence for compliance with clause 25 of the agreement which the petitioner submitted vide letter dated 18.07.2002. Vide order dated 11.09.2002, respondent No.2 has rejected the application for appointment of arbitrator due to non-fulfilling the condition precedent seeking arbitration and delay of raising the dispute beyond the period of 120 days, hence, the present MCC before this Court.

3 This court has issued notice to the respondent and they have filed the reply supporting the impugned order.

4 The respondent filed a reply that the petitioner had to approach first to Superintendent Engineer within 15 days and thereafter to the Chief Engineer by way of appeal and then claim appointment of arbitrator under clause 25. Annexure P/3 cannot be termed to be a notice under Clause 25 of the contract as the petitioner neither approached the Superintending Engineer nor filed any appeal before the Chief Engineer. It is further submitted that if the contractor does not make any demand for the appointment of an arbitrator in writing within 120 days of receiving the intimation from the Engineer-in-chief that the final bill is ready for payment, the claim of the contractor shall be deemed to have been waived and treated as time-barred, therefore, the respondents have rightly rejected the claim of the petitioner and this MCC is liable to be dismissed.

5 In this M.C.C. on most of the dates no one appeared on behalf of the petitioner, hence, this MCC was dismissed for want of prosecution on 03.01.2012. Thereafter, an application for restoration was filed which came to be allowed on 07.11.2012. Since then this MCC is pending awaiting final disposal. On 07.09.2017, no one appeared, hence, SPC was issued. Now today Shri Vivek Dalal, learned counsel appeared and argued the matter.

6 Shri Dalal learned counsel submits that as per clause 25, it was mandatory on part of respondents to refer the dispute for adjudication by way of arbitration. The issue of limitation is a matter of evidence and same liable to be decided by the arbitrator. The work was completed on 01.04.2000. The bill was settled by respondent no. 28.09.2000 and the petitioner submitted the claim on 18.12.2000, which cannot be said to be time-barred. Hence, the claim for the petitioner for an appointment of arbitrator has wrongly been rejected as time barred.

7 Shri Joshi learned ASG has argued in support of impugned order and submitted that very purpose of filling of this M.C.C. has frustrated by efflux of time hence same is liable to be dismissed.

I have heard the learned counsel for the parties and perused the record.

8 Clause 25 which provides arbitration, is reproduced below:-

CLAUSE 25

Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications design, drawings and instruction here in before mentioned and as to the quality of workmanship or materials used on the work or as to any other q