JUDGMENT V.K. Gupta, C.J. 1. In this petition filed under Section 11 (6) of the Arbitration and Conciliation Act 1996 (1996 Act : for short), the petitioner has prayed for appointment of an Arbitrator. 2. The petitioner was awarded a contract for the construction of 8.50m dia Head Race Tunnel (RD 0 - 3500 m) of Larji Hydroelectric Project at a contract price of Rs. 51,35,56,685.00. This contract appears to have been awarded on 3rd May, 1999 and the stipulated period of completion of the contract work was 35 months from the date of award of the contract. Apparently the period of completion later on was extended from time to time. 3. Between the parties, there exists an arbitration agreement, which is reproduced herein below: Clause 25 : Settlement of Dispute by Arbitrations.Except where otherwise provided in the contract, all questions and dispute relating to the meaning and interpretation of the terms of contract, specifications, designs, drawings and before instructions here-in- below mentioned, and as to the quality of workmanship or materials used in the work or as to any question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions orders or these conditions or otherwise concerning the words or the execution or failure to execute the same whether arising during the progress of work or relating to termination or recession or delay in execution and all consequences thereof of the contract, shall be referred to a sole arbitrator who will be appointed by the HPSEB. It will be no objection, to any such appointment that the arbitrator, so appointed, is Government/Board servant who had to deal with matters to which the contract relates to and that in the course of his duties as Government/ Board Servant, he had expressed views on all or any of the matters in dispute or difference. In case, the arbitrator to whom dispute/difference, so referred, is unable to function as such at any stage for any reason, whatsoever or his award being set aside by the Court for any other reason, another arbitrator, shall be appointed in the same manner is (sic) indicated above. In case, the arbitrator to whom dispute/difference, so referred, is unable to function as such at any stage for any reason, whatsoever or his award being set aside by the Court for any other reason, another arbitrator, shall be appointed in the same manner is (sic) indicated above. Such person/ arbitrator shall be entitled to proceed with the reference from the stage at which it had been left by his predecessor or to conduct the proceedings afresh as he may deem fit or as the case may be. Party invoking arbitration shall specify the disputes to be referred to the arbitration under this clause together with the amount(s) claimed in respect of each dispute. If work under the contract has not been completed when a dispute on any matter whatsoever is referred to arbitration, the contractor shall not be entitled to suspend such work to which the dispute relates and payment to the contractor shall he continued to be made in terms of the contract. It is also a term of the contract that if the contractor(s) omit/neglect to prefer any claim(s) in writing within 90 (Ninety days) of the date on which the dispute first arises during the execution of the work for which such dispute is sought to be raised or date of intimation of the preparation of the bill therefore, whichever is earlier, the claim of the contractor will be deemed to have been waived and absolutely barred and the HPSEB shall be discharged and released of all the liabilities under the contract in respect of such claim(s). Likewise, all dispute(s) referred to above shall be preferred as provided above within 90 (ninety) days of execution of work(s) otherwise all claim(s) shall stand extinguished. Provided, in the event of the rejection of contractor claim(s) by the HPSEB, the contractor shall within 30 days after receiving intimation in writing of such decision shall give notice in writing to the Chief Engineer requesting him that the matter may be. In all cases referred for arbitration, the arbitrator shall assign reasons under all circumstances on which the decision is based. The decision of the arbitrator, as the case may be shall be conclusive, final and binding on the parties. In all cases referred for arbitration, the arbitrator shall assign reasons under all circumstances on which the decision is based. The decision of the arbitrator, as the case may be shall be conclusive, final and binding on the parties. Subject to the provisions of the contract to the contrary as aforesaid, the provision of the 'Arbitration and Conciliation Act, 1996' or any statutory modification or re-enactment thereof and the rules made there under and for the time being in force shall apply to all arbitration proceeding under this clause. 4. Since, according to the petitioner some disputes covered by the aforesaid arbitration agreement arose between the parties, vide communication No. SSJV/LRJ/HRT/2005-06/21 dated 11th August, 2005 the petitioner requested the Chief Engineer, Larji Hydroelectric Project-respondent No. 2 herein to appoint a sole Arbitrator and refer the disputes for his adjudication through arbitration. Last three paras of this communication being relevant for my purpose are reproduced in verbatim which reads thus: The Superintending Engineer, Larji Construction Circle-I, after a period of about 1-1/2 months, vide letter No. HPSEB/ LCC-I/W-HRT/ 05-700-03 dated 5.8.2005, has denied all our submissions and rejected the entire claim except Claim No. 10 which is for loss due to payment of Bank charges for arranging the remittance through PFCL, without considering the undisputed facts which entitled us for compensation. This rejection of our claims has given rise to dispute between the parties, inviting invocation of Clause -25 of General Conditions of Contract for settlement of disputes by Arbitration. While invoking the Arbitration Clause, we enclose herewith a copy of our claim statement showing the amount(s) claimed in respect of each dispute which was submitted to the Deputy Chief Engineer and request you to appoint a sole arbitrator for referring the disputes for early settlement as per the agreement provisions. We trust that your kindself would favourably respond to this request early. 5. Since admittedly the petitioner did not receive any response from the respondents nor admittedly was any Arbitrator appointed as a sequel to the aforesaid request of the petitioner, the petitioner has approached me in terms of Sub-section (6) of Section 11 of the 1996 Act for the appointment of an Arbitrator. 6. Reply has been filed by the respondents. Along with the reply, the respondents have annexed copies of three documents. 6. Reply has been filed by the respondents. Along with the reply, the respondents have annexed copies of three documents. Annexure R-1 is the copy of an order dated 4th March, 2006 passed by respondent No. 2 whereby he appointed Chief Engineer (PSP), HPSEB, Shimla as a sole Arbitrator to adjudicate upon the disputes between the parties in this case. Annexure R-2 is an order passed by the Chief Engineer (P and M), HPSEB, Shimla which is general in terms with respect to nomination of the Board Arbitrators. This order does not specifically relate to the case of the petitioner at all. It generally relates to other general cases. Annexure R-3 is a communication from the Chief Engineer (Pand M) addressed to respondent No. 2 whereby respondent No. 2 has been informed about the Board having assigned all arbitration cases to the Board Arbitrators. 7. Mr. Rajnish Maniktala, learned Counsel for the petitioner has submitted that by not responding to the communication dated 11th August, 2005 which admittedly was received by the respondents and by not appointing the Arbitrator before the petitioner filed the present petition in this Court on 12th January, 2006, the respondents have forfeited their right to appoint the Arbitrator and that in terms of Section 11(6) of 1996 Act I should appoint an independent and impartial person as the Arbitrator in this case. 8. Controverting the aforesaid submissions of Mr. Rajnish Maniktala, Mr. Shrawan Dogra, learned Counsel appearing for the respondents submitted, first and foremost, that the communication dated 11th August, 2005 is not a valid and a binding communication in as much as it was not addressed to a proper, appropriate person and therefore, the respondents were under no obligation to appoint an Arbitrator pursuant to the receipt of this communication. He also submitted that since the respondents have in the meanwhile appointed Chief Engineer (PSP), HPSEB as the Arbitrator, this petition having become infructuous should be dismissed. In so far as the scope of present petition is concerned, Mr. Dogra submits that the present petition falls within the ambit of Clause (6) of Section 11 of 1996 Act but even though this clause alone is applicable to the present case, according to Mr. Dogra there is no warrant for interference by this Court because the respondents have already appointed the Arbitrator. Alternatively, Mr. Dogra submits that the present petition falls within the ambit of Clause (6) of Section 11 of 1996 Act but even though this clause alone is applicable to the present case, according to Mr. Dogra there is no warrant for interference by this Court because the respondents have already appointed the Arbitrator. Alternatively, Mr. Dogra submits that even if this Court comes to the conclusion that the respondents forfeited their right of appointment of Arbitrator, this Court at best can issue a direction to the respondents to appoint an Arbitrator. 9. Sub-sections (2) and (6) of Section 11 of 1996 Act which alone are relevant for our purposes read as under: (2) Subject to Sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (6) Where, under an appointment procedure agreed upon by the parties, (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or (c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. 10. Undoubtedly in this case, because of the stipulation in the arbitration agreement that "all questions and disputes...shall be referred to a sole Arbitrator who will be appointed by the HPSEB", in terms of Sub-section (2) of Section 11 read with Sub-section (6) thereof there indeed is in existence a procedure for the appointment of a sole arbitrator in this case and it was in pursuance of the mandate contained in this procedure that the petitioner had sent communication dated 11th August, 2005 to respondent No. 2 requesting him for the appointment of the Arbitrator. Undisputably this communication was received by respondent No. 2 and undisputably also before the petitioner filed the present petition in this Court the respondents had not appointed the Arbitrator. Undisputably this communication was received by respondent No. 2 and undisputably also before the petitioner filed the present petition in this Court the respondents had not appointed the Arbitrator. This case therefore, squarely falls within the ambit of Clause (a) of Sub-section (6) (supra) because the respondents, as a party to the arbitration agreement had failed to act as required under the aforesaid procedure in as much as despite having been requested and called upon by the petitioner to appoint the Arbitrator under the aforesaid procedure, the respondents did not appoint any Arbitrator till the petitioner filed the present petition in this Court. Since the respondents failed to act as required under the aforesaid procedure the petitioner was well within its rights to request the Chief Justice to take the "necessary measure" and the only necessary measure, in the facts and circumstances of this case that I think appropriate and proper to take, is to appoint an independent Arbitrator myself because the respondents have forfeited their right to appoint an Arbitrator. In this view of mine, I am fortified by the following observations of their Lordships of the Supreme Court in the case of Datar Switchgears Ltd. v. Tata Finance Ltd. and Anr. reported in (2000)8SCC151 : So far as cases falling under Section 11 (6) are concerned-such as the one before us - no time limit has been prescribed under the Act, whereas a period of 30 days has been prescribed under Section 11(4) and Section 11(5) of the Act. In our view, therefore, so far as Section 11 (6) is concerned, if one party demands the opposite party to appoint an arbitrator and the opposite party does not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, bvit before the first party has moved the Court under Section 11, that would be sufficient. In other words, in cases arising under Section 11(6), if the opposite party has not made an appointment within 30 days of demand, the right to make appointment is not forfeited but continues, but an appointment has to be made before the former files application under Section 11 seeking appointment of an arbitrator. Only then the right of the opposite party ceases. Only then the right of the opposite party ceases. We do not, therefore, agree with the observation in the above judgments that if the appointment is not made within 30 days of demand, the right to appoint an arbitrator under Section 11(6) is forfeited. 11. The aforesaid two Judges Bench judgment of the Supreme Court came up for consideration before a three Judges Bench in the case of Punj Lloyd Ltd. v. Petronet MHB Ltd. reported in 2006 (2) SCC 638, in which, noticing the aforesaid observations in Datar Switchgears Ltd., their Lordships of the Supreme Court clearly held that the aforesaid ratio was applicable to the facts of the aforesaid case. I have no doubt in my mind that the aforesaid ratio is squarely applicable to the facts of the present case as well. 12. It is no doubt true that the right to appoint Arbitrator under the arbitration agreement vested with the HPSEB and it is also true that the communication dated 11th August, 2005 was addressed by the petitioner to respondent No. 2, that is, Chief Engineer, Larji Hydroelectric Project, HPSEB, Sarabai. Whereas undoubtedly the arbitration agreement provides that the Arbitrator shall be appointed by the HPSEB, it no where lays down that the request for the appointment of the Arbitrator by the Contractor shall be addressed to the HPSEB alone and to none else. Actually the stipulation in the agreement that "party invoking arbitration shall specify the disputes to be referred to the arbitration" clearly suggests that it is open to the Contractor to send the communication for appointment of Arbitrator either to HPSEB directly or to any of its functionaries. 13. Admittedly in the present case, the contract in question was awarded in favour of the petitioner by respondent No. 2, Chief Engineer, Larji Hydroelectric Project. The Chief Engineer, Larji Hydroelectric Project is a functionary of the HPSEB heading its field unit. Actually the Chief Engineer in rank and status is much above a normal head of a field unit. He is the head of a Project of HPSEB. The Chief Engineer, Larji Hydroelectric Project is a functionary of the HPSEB heading its field unit. Actually the Chief Engineer in rank and status is much above a normal head of a field unit. He is the head of a Project of HPSEB. Since the agreement specifically does not lay down that the communication must be addressed to the HPSEB, it was open to the petitioner to have addressed this communication to the Chief Engineer of the Project because it was the Chief Engineer who had awarded the contract in question to the petitioner and it was the Chief Engineer with whom alone the petitioner was having all the dealings. This apart, the Chief Engineer being a Project head of HPSEB, being the head of a very large unit of HPSEB was presumed to have forwarded the request of the petitioner to HPSEB headquarter. Actually the respondents in their reply have not at all pleaded nor averred that the communication dated 11th August, 2005 was not forwarded by respondent No. 2 to respondent No. 1. I, therefore, hold that there was no defect at all in the aforesaid communication sent by the petitioner and the respondents particularly respondent No. 1 was bound to act upon this communication and to appoint the Arbitrator. By not doing so, they have forfeited their right to appoint the Arbitrator. 14. Coming to the last submission of Mr. Dogra that even if I hold that the respondents did not act as required under the procedure prescribed in the arbitration agreement in the sense that they did not appoint the Arbitrator and thus consequently, I would be entitled to invoke Section 11(6) of 1996 Act, I should merely issue a direction upon respondent No. 1 to appoint the Arbitrator. The argument is totally devoid of any merit if one has in mind the scheme of Section 11 of 1996 Act and the above quoted observations of their Lordships of the Supreme Court. Once the party which neglects or fails to act as required under the procedure forfeits its right to appoint the Arbitrator, it will be a mockery of law if same party, while exercising jurisdiction under Section 11(6) of 1996 Act, is directed by the Chief Justice to appoint the Arbitrator. This situation is not at all contemplated by the scheme of Section 11 of 1996 Act. This situation is not at all contemplated by the scheme of Section 11 of 1996 Act. There is therefore, no force in the argument of Mr. Dogra. 15. Because the respondents had forfeited their right to appoint the Arbitrator in the present case, the appointment of Chief Engineer (PSP) made by them in this case shall be treated as non est in the eyes of law. 16. Consequently, while exercising my jurisdiction under Section 11(6) of 1996 Act, I hereby appoint Shri Justice K.C. Sood (Retd.) a former Judge of this Court as a Single Member Arbitral Tribunal in this case and direct that the learned sole Arbitrator shall enter upon the reference immediately and pass the arbitral award as soon as possible. The parties are at liberty to file their claims/counter- claims before the learned Arbitrator. The fee of the learned Arbitrator is fixed at Rs. 1,00,000/- which shall be paid to him in equal shares by both the parties. If at some stage of the arbitration proceedings the learned Arbitrator feels, in consultation with the parties that the aforesaid amount of the fee has turned out to be on the lower side, looking to the nature and extent of work involved, he may with the consent of the parties revise the fee appropriately. If the learned Arbitrator, in the course of, or in connection with the conduct of arbitration proceedings has to go out of Shimla town, he shall be paid daily fee @ Rs. 10,000 and all expenses for travelling as well as lodging and boarding etc., which shall also be shared by the parties equally. The petition is allowed. No orders as to costs.