The court affirmed the necessity of timely appointment of an adjudicator as per the arbitration agreement and relevant statutory guidelines.

1. This application is filed seeking appointment of an arbitrator under S.11 of the Arbitration and Conciliation Act, 1996 .

2. A work by name "Up - gradation of link road Kuthera Chalokhar Ree Banal from Km. 0/0 to 9/880 (Sh. Formation Cutting and Filling R / walls, B / wall and Crash Barrier, Cross Drainage structure, Causeway, M/T, C.C., Precast concrete paver blocks, PCC drain, Parapets and road furniture and Bio - Engineering including five years routine maintenance) under PMGSY - II, collaboration RRP - II World Bank, Batch, for the year 2019-2020 AF - G and CR Roads Pilot Projects Package No. HP - 03 - 151" was awarded to the applicant by the respondents and agreement no. 2 for the year 2020-2021 was executed between the parties.

3. After the award was made in favour of the applicant on 17.06.2020 for a contract price of Rs.7,18,64,792/-, the work was to be completed in 365 days.

4. According to the applicant, stipulated date for start of work was 06.07.2020 and date of completion of the work as per agreement was 05.07.2021; that site was handed over to the applicant on 20.07.2020; that certain problems were faced by the applicant which are mentioned in paragraph 8 of this application, but the Executive Engineer (second respondent) in spite of being informed of the same through communications dt. 20.05.2021 and 24.05.2021, did not redress those issues and without any notice or opportunity to the applicant, on 08.03.2021, the second respondent imposed liquidated damages @3% amounting to Rs. 21,55,940/-.

5. It is contended that the second respondent kept on harassing the applicant and continued to threaten to levy more penalties on the applicant, though, the applicant disputed the penalties and sought extension of time and waiver of penalty.

6. It is stated that though the applicant wanted release of the amount withheld as liquidated damages, the respondents did not do so and ultimately the agreement with the applicant was terminated by the respondents on 29.03.2022.

7. It is contended that procedure for resolution of disputes is provided in Clauses 24 and 25 of the agreement and it contemplated initially appointment of an adjudicator and then a reference to the arbitration after the adjudicator renders a decision.

8. It is contended that vide Annexure P - 4 dt. 08.06.2022, the applicant sought appointment of an adjudicator by the respondents, but there was no response of the respondents to the same; that applicant then issued notice on 05.08.2022 being Annexure P - 5 invoking arbitration Clause in the agreement (Clause 25.5) and also another notice dt. 05.08.2022 addressed to the Chairman, Indian Road Congress in terms of Clause 25.5, since the dispute between the parties was less than Rupees Ten Crores; and when there was no reply, it filed this application for appointment of an arbitrator under S.11 of the Act.

9. Reply is filed by the respondents opposing this application stating that adjudicator was appointed by the respondents on 14.09.2022 and the applicant has to approach the adjudicator and submit his claim. The contentions raised by the applicant are all disputed, but no explanation is coming forth in the reply as to why the appointment of an adjudicator was made on 14.09.2022, when the applicant had sought for such appointment vide Annexure P - 4 dt. 08.06.2022 and such appointment is to be made within 28 days of such request, and the adjudicator would have 56 days to decide the dispute, and thereafter the matter can be referred to arbitration.

10. Since in the facts and circumstances of the case, there is an agreement between the parties providing for arbitration, and s