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Judgment
Ajay Rastogi, J.—Instant application has been filed u/s 11(6) of Arbitration and Conciliation Act, 1996 for appointment of Arbitrator.
This is not disputed that agreement was executed between the parties and it contained Clauses 36 & 37 for settlement of their disputes through arbitration. Since certain disputes arose out of agreement executed between the parties, the applicant served a notice on 29th June, 2007 [Ann.9] which was duly served in the office of respondents and even till approachingThis Court by filing instant application on 8th August, 2007, there is no material on record to show that Arbitrator was appointed by the respondents in terms of clause of agreement [supra]. Relevant Clauses 36 & 37 are reproduced as under:
Dispute, if any between the contracting parties, will be settled by mutual negotiations, failing which the matter will be referred to an expert committeeto be constituted by Secretary, Board ofSecondary Education, Rajasthan, Ajmer andthe decision of Secretary, Board of Secondary Education, Rajasthan, Ajmershall be final.
If any dispute arises out of the contractwith regard to the interpretation, meaning and breach of the terms of thecontract and any decision of SecretaryBSER as per condition No. 36 above the matter shall be referred to by the parties to the sole arbitrator that willbe State Level Committee, whose decisionshall be final.
Despite ample opportunity afforded byThis Court on 14th September, on 5th October, on 2nd November & lastly on 23rd November, 2007 to respondent Nos. 1 & 2, no reply has been filed on their behalf.
Respondent No. 3 has filed reply wherein it has been averred that a committee was constituted by the Government on 10th July, 2007 for taking decision with regard to computerization in educational institutions and letter was circulated to the government authorities on 24th July, 2007 and more specifically counsel has stressed on Clause 6 of the proceeding. He further submits that so far as Board of Secondary Education is concerned, it is a nodal agency and government who has to take final decision in all matters including dispute, if there is any, as it has been observed above. The State Government who has, as usual practice, not come out with any explanation despite ample opportunity being afforded and no assistance eitherway has been provided toThis Court.
So far as clause of agreement of which reference has been made [supra] is concerned, the power of making appointment vests with the Secretary, Board of Secondary Education under Clause 36. Notice of making appointment of Arbitrator was duly served upon the authorities with whom the power vests for making appointment of Arbitrator and till approachingThis Court, nothing has been placed on record which may show that appointment of Arbitrator has been made by the respondents under said clause. So far as reference made of Ann.R/9 is concerned, these are proceedings of the committee, which in opinion ofThis Court, is in no manner related to initiating action of making appointment of Arbitrator under the clause in question.
In the facts and circumstances of the case, I consider it proper to appoint Hon''ble Mr. Justice F.C. Bansal [Retd.], D-68, Laxman Path, Hanuman Nagar, Opp. Vaishali Nagar, Telephone Exchange, Jaipur, as sole Arbitrator to whom the dispute shall be referred. Remuneration of Rs. 1,00,000/ & Rs. 10,000/-towards expenses [to be equally shared] shall be paid to the sole Arbitrator by the parties.
With the above observations, the application stands disposed of. Copy of this order be sent to Hon''ble Mr. Justice F.C. Bansal [Retd.], D-68, Laxman Path, Hanuman Nagar, Opp. Vaishali Nagar, Telephone Exchange, Jaipur, Arbitrator forthwith and parties are directed to appear before him on 23rd February, 2008 or any other date if informed by him.