O R D E R

% 09.08.2024

1. This is a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of a Sole Arbitrator to adjudicate the disputes between the parties.

2. The facts are that the petitioner and the respondent entered into a Contract dated 12.04.2017 for construction of Four laning of Dolabari to Jamuguri section from km 17.300 of NH-37A to km 182.000 of NH-52 in the State of Assam under SARDP-NE, Phase A on EPC Mode for a contract price of Rs 744.10 crores.

3. Since certain disputes arose between the parties, the petitioner invoked arbitration vide Legal Notice dated 09.09.2023.

4. The Contract contains an Arbitration Clause being Clause 26.3, which reads as under:- “26.3 Arbitration

26.3.1 Any Dispute which is not resolved amicably by conciliation, as provided in Clause 26.2, shall be finally settled by arbitration in accordance with the rules of arbitration of the SOCIETY FOR AFFORDABLE REDRESSAL OF DISPUTES (SAROD).

26.3.2 Deleted.

26.3.3 The arbitrators shall make a reasoned award (the "Award"). Any Award made in any arbitration held pursuant to this Article 26 shall be final and binding on the Parties as from the date it is made, and the Contractor and the Authority agree and undertake to carry out such Award without delay.

26.3.4 The contractor and the Authority agree that an Award may be enforced against the Contractor and/or the Authority, as the case may be, and their respective assets wherever situated.

26.3.5 This Agreement and the rights and obligations of the Parties shall remain in full force and effect, pending the Award in any arbitration proceedings hereunder.

26.3.6 In the event the Party against whom the Award has been granted challenges the Award for any reason in a court of law, it shall make an interim payment to the other Party for an amount equal to 75% (seventy five per cent) of the Award, pending final settlement of the Dispute. The aforesaid amount shall be paid forthwith upon furnishing an irrevocable Bank Guarantee for a sum equal to 120% (one hundred and twenty per cent) of the aforesaid amount. Upon final settlement of the Dispute, the aforesaid interim payment shall be adjusted and any balance amount due to be paid or returned, as the case may be, shall be paid or returned with interest calculated at the rate of I 0% (ten per cent) per· annum from the date of interim payment to the date of final settlement of such balance.”

5. The matter was taken up for hearing on 31.05.2024 and notice was issued and the respondent was served. Mr. Tandon, learned counsel for the respondent has handed over a copy of reply which is taken on record.

6. Since there is an arbitration clause between the parties, the parties are amenable to raise all their disputes, claims, counter claims and legal objections on merits before the learned Sole Arbitrator to be appointed by this Court.

7. Learned counsel for the respondent submits that the Arbitration clause of the Contract mandates that the Arbitration must be in accordance with the rules of arbitration of the Society for Affordable Redressal of Disputes (SAROD).

8. In this regard, learned counsel for the petitioner draws my attention to a judgment dated 22.03.2024 passed in ARB.P. 1011/2023 titled as “Rani Construction Pvt. Ltd. vs. Union of India”. The operative portion of the judgment reads as under:- “10. Thereafter, again vide order dated 17.11.2023, learned counsel who appeared on behalf of SAROD sought time to take specific instructions as to whether the primary membership of SAROD is a pre-requisite for taking recourse to the arbitration under the rules of SAROD. Thereafter, a reply was filed on behalf of SAROD in these proceedings wherein it has been specifically averred as under:- “6. It is submitted that Rule 4.4 of the Society for Affordable Redressal of Disputes ("SAROD") Arbitration Rules ("SAROD Rules") provide for primary membership of SAROD for invoking arbitration under the SAROD Rules 11. Vide order dated 15.12