Manmohan Singh, J. - (1.)THE petitioner has filed the abovementioned petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator in terms of arbitration clause 25 of the agreement. It is also mentioned in the prayer clause that the retired Engineer of CPWD be appointed who may be directed to adjudicate and decide the dispute between the parties. The case of the petitioner is that the petitioner had entered into an agreement with the respondent on 23rd August, 2007 for the work of construction of office building for Gurgaon Gramin Bank at Sector -44, Gurgaon. The work was awarded to the petitioner vide letter of acceptance dated 31st July, 2007 for the aforesaid work which was completed on 30th June, 2009. The contention of the petitioner is that despite of the same, the respondent had not released the payments for the work done and also towards escalation and loss towards delay in the execution of work despite of various requests made by the petitioner to the respondents by virtue of many letters. According to the petitioner, the delay has happened on the part of the respondents who denied statement made in the petition rather it is stated that some of the work was still pending. As the payment was not released by the respondents to the petitioner, the petitioner invoked arbitration clause -25 of the agreement. The details of the claims are mentioned in para -14 of the petition.
(2.)NOTICE of this petition was issued. Mr. Anil Seth, Advocate appears on behalf of respondents No. 1 & 3 and Mr. Anil Grover, Advocate appears on behalf of respondent No. 2. The contention of Mr. Seth is that the respondent No. 1 is not a party to the agreement, nor privity of the contract with the petitioner. Thus, the petition filed by the petitioner is not maintainable. The second submission of Mr. Seth is that the petitioner does not fulfill the procedure provided under the arbitration agreement. Even on that account the petition is not maintainable. It is also contended on behalf of respondent No. 1 his client is not a necessary party to the petition as respondent No. 1 is an agent of respondent No. 2 who had merely acted for and on behalf of respondent No. 2 and the petitioner is aware about this fact which also reflects in the agreement. Respondent No. 3 is the appointing authority of the arbitrator as per agreement. In this regard, he has referred the clause 25(ii) of the agreement which reads as under: -
25(ii) Except where the decision has become final, binding and conclusive in terms of Sub Para (i) all other claims which have earlier been referred to Accepting Authority as above on receipt of complete details of such claims with application to appoint an arbitrator within 120 days of completion of work or 120 days after receipt of information of preparation of final bill, but before signing the final bill shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Accepting Authority. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another sole arbitrator shall be appointed in the manner aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor.

It is also a term of the Contract that no person other than person appointed by such Accepting Authority as aforesaid should act as Arbitrator and if for any reason that is not possible, the matter should not be referred to the Arbitration at all.

The submission of respondent No. 2 is that respondent No. 2 has admittedly not signed the agreement executed between the petitioner and respondent No. 1. However, as far as the appointment of arbitrator is concerned, respondent No. 2 has no objection. Liberty is sought by said respondent to raise its objections before the Arbitrator. After some hearing, Mr. Seth, learned counsel for respondents No. 1, has not disputed the fact that it is for the Arbitrator to decide whether respondent No. 1 is a necessary party or not but has not denied the fact that his client is a signatory to the agreement in question.

(3.)AS regards the petitioner is concerned, after some arguments, the petitioner has no objection if the respondent No. 3 (Appointing Authority) be given time to appoint the Arbitrator and such Arbitrator may adjudicate the disputes between the parties.