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Judgment
G. Narendar, CJ
Having heard the learned counsels for the parties, counsel for the respondent is right in contending that the invocation of the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short “1996 Act”) is premature.
Learned counsel for the respondent would take the Court through Annexure No. 13, being the notice, and would then take the Court through the Dispute Resolution covenant of the contract, which reads as under :
7.0 Settlement of Disputes
It is specifically agreed that any dispute or difference arising out of or in connection with this Contract, including those considered as such by only one of the Parties, shall, unless it is amicably settled, be referred to the arbitration of a person to be agreed upon between the Client and the Consulting Engineer or, failing agreement within 45 days of a nomination by one of the parties, the Institution of Engineers (India). The Arbitrator's decision shall be final and binding on both parties.”
On a reading of the above, it is apparent that the parties were first required to make an attempt at an amicable settlement, and in the event of failure of such amicable settlement, to make a nomination of an Arbitrator within 45 days, failing which the matter shall be referred to the Institution of Engineers.
In the instant case, there is no nomination of the Arbitrator, as stipulated under the Dispute Resolution clause. I n that view of the matter, learned counsel for the applicant would pray leave of the Court to withdraw the present Arbitration Application, with liberty to complete the process, and, if necessary, to invoke the provisions of Section 11(6) of the 1996 Act.
Reserving such liberty, the instant Arbitration Application stands dismissed as withdrawn.
As a sequel thereto, miscellaneous application(s), if any pending, shall stand closed.