ORAL ORDER

1. Heard learned counsels for the parties and perused the record.

2. The petitioner herein has relied upon the construction agreement dated 23.04.2010 appended at Annexure ‘A’, Page No. ‘11’ of the Paper-book, which ends at Page No. ‘18’, to demonstrate that the agreement was signed by both the parties herein in presence of the witnesses. The said agreement contains an arbitration clause.

3. The dispute raised by the petitioner is with regard to non- compliance of the Condition No. ‘11’ of the construction agreement, i.e. non-payment of the complete cost of construction as per the said clause.

4. The notice invoking arbitration clause issued by the petitioner before filing of the present petition invoking Section 11 (6) of the Arbitration and Conciliation Act’ 1996 seeking appointment of arbitrator for the dispute pertaining to the outstanding construction cost.

5. In the afÏdavit filed on behalf of the respondent, there is a denial about the existence of the agreement. Copy of the construction agreement dated 23.04.2010 has been appended as Annexure ‘R-1’ at Page No. ‘50’ of the Paper-book, which ends at Page No. ‘57’ and it is sought to be submitted that the same was not signed by the petitioner herein.

6. The contention in the afÏdavit of the respondent that the construction agreement dated 23.04.2010 presented by the petitioner is a fabricated and tempered document and the said agreement was never executed between the parties and hence, not binding upon the respondent, cannot be appreciated at the pre- referral stage within the scope of Section 11 (6) of the Arbitration and Conciliation Act’ 1996.

7. It may also be noted that in Paragraph No. ‘9’ of the afÏdavit filed on behalf of the respondent, it is admitted that the petitioner raised the bills and the same were paid by the respondent. It is sought to be submitted that during the tenure of construction, the construction work made by the petitioner was not as per the agreed quality and up to the mark. It came into the knowledge of the respondent by the month of September 2016 that the material used at the site was of poor quality and the bills raised by the petitioner were inflated and manipulated with false figures and items.

8. It is further stated that when the petitioner company was questioned about the same, it suddenly stopped the construction work allocated to it at the site and thus, abandoned the construction work in the year 2016 causing delay and losses in the project. On seeking explanation, the petitioner showed its willingness to discontinue that the project work.

9. In light of these averments made in the afÏdavit of the respondent, atleast, this much is clear that there was an agreement between the parties pursuant to which bills were raised by the petitioner contractor. The question as to who is at fault and whether any liability can be fastened upon the respondent as per the claim of the petitioner, can only be adjudicated by the arbitrator.

10. As the parties have not been able to reach at consensus in the matter of appointment of arbitrator, I have no option but to allow the present petition. Hence, I pass the following

ORDER

(i) Petition is allowed.

(ii) Hon’ble Mr. Justice V.P.Patel, Former Judge, High Court of Gujarat having address at: D-39, Swastik – 1, Bunglow & Row House, Opp. Gujarat High Court, RC Technical Road, Ghatlodiya, Ahmedabad – 380061 and having contact number 7574812176 and Email ID: vishnukumarppatel@gmail.com is hereby appointed as the sole Arbitrator to resolve the disputes between the parties in accordance with the Arbitration Centre (Domestic and International), High Court of Gujarat Rules, 2021. Both Parties would also be governed by said Rules.

(iii) Registry to communicate this order to the sole Arbitrator forthwith by Speed Post.

(iv) Pending application/s, if any, stands consigned to records.

(SUNITA AGARWAL, CJ )

SAHIL S. RANGER