Manak Mohta, J.—Heard learned counsel for the parties in respect of application filed under Section 11 read with Section 10 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act of 1996”) for appointment of Arbitrator. 2. It was submitted by the learned counsel that the applicant is a partnership firm and is a registered “A” class contractor engaged in the work of contractorship. The applicant was awarded work contract valuing Rs. 1,69,28,629/- falling under the Executive Engineer, PWD District Division II, Bikaner for the “Construction of Mohangarh Sutharwala Road Crossing Jhunjhunuwala-Bahal Distributory” Km 0/0 to 28/0 (Job No. 29/4705/IGNP/St.II/Plam/91-92) vide agreement No. 1/1991-92 (Annex.1) having arbitration Clause 23 in it wherein it has been provided that in case any sort of dispute arises in respect of said agreement, the matter will be referred to arbitrator. 3. It was further stated that as per the work-order No. 1277 dt. 17.09.1991 the work was to commence from 01.10.1991 and was to be completed by 31.03.1993. Since the applicant could not complete the contract-work despite all his best efforts and sincerity because of departmental reason and natural calamities which was beyond the control of the applicant, extension of time was sought from the Department. Vide order dt. 27.06.1994 the period of completion of work was extended but a penalty of 1/8th % penalty (Rs. 21,160) was imposed on the applicant. The work was finally and satisfactorily completed on 15.10.1993. Thereafter, the contractor submitted escalation bill as per Clause 45 of the agreement (Annex. 1) for the payment of 12,41,863 and also demanded interest from 15.10.1993 till the date of actual payment. The abstract of para of Clause 45 of the agreement reads as under : “.......Price escalation clause shall be applicable only for the work that is carried out within the stipulated time or extension thereof as are not attributable to the contractor.” 4. It was further stated that the said escalation clause was applicable to concerned work order and the applicant demanded the same by giving notice. Escalation payment of Rs. 13,41,863/- alongwith interest was made but that was not made. 5. Now the contention of the applicant is that despite exchange of numerous communications with the Department, payment of escalation bill amounting to Rs. 13,41,863/- plus interest thereon from 15.11.2003 has not been paid to the applicant, upon which, a legal notice dt. 10.08.2005 (Annex. Escalation payment of Rs. 13,41,863/- alongwith interest was made but that was not made. 5. Now the contention of the applicant is that despite exchange of numerous communications with the Department, payment of escalation bill amounting to Rs. 13,41,863/- plus interest thereon from 15.11.2003 has not been paid to the applicant, upon which, a legal notice dt. 10.08.2005 (Annex. 11) in terms of arbitration Clause was given to the Chief Engineer, PWD, Jaipur alongwith bankers’ cheque No. 033268 dt. 10.08.2005 for a sum of Rs. 1000/- drawn on Union Bank of India, Jaipur Branch in favour of the Executive Engineer, Head Quarter PWD, Jaipur for referring the dispute to arbitrator as per Clause 23 of the Agreement, but of no avail. Further a registered reminder letter dt. 26.09.2005 (Annex. 12) was also sent to the Chief Engineer, PWD, Rajasthan, Jaipur in terms of the aforesaid contract for sending a penal of three names of the rank of Superintending Engineer as per Clause 23 of the agreement (Annex. 1) for the appointment of Arbitrator. It is in this background that an application has been moved before this Court with a prayer that the application may kindly be allowed and the matter be referred to Arbitrator. 6. Despite seeking adjournments, no reply was submitted on behalf of the Department. 7. After considering the contentions, it is the admitted fact from the perusal of the material available on record that a work-contract was given to applicant and an agreement No. 01/1991-92 was executed between the parties. The applicant has stated that he did the contract-work and is entitled to get payment thereof, the delay in completing the work as stated by the applicant was beyond his control and for that he cannot be blamed and these allegations were not denied by the Department. The applicant to substantiate his claim that the delay was not on his part submitted certified copy of judgment and decree dt. 14.08.2000 passed by learned Additional Civil Judge (J.D.) No. 3, Bikaner (Annex. 3) whereby the imposition of penalty on the contractor was declared to be illegal. The judgment and decree dt. 27.01.2001 (Annex. 4) rendered in Regular First Appeal. Further and the order of this Court dt. 19.12.2001 whereby the Second Appeal too was dismissed. 8. 14.08.2000 passed by learned Additional Civil Judge (J.D.) No. 3, Bikaner (Annex. 3) whereby the imposition of penalty on the contractor was declared to be illegal. The judgment and decree dt. 27.01.2001 (Annex. 4) rendered in Regular First Appeal. Further and the order of this Court dt. 19.12.2001 whereby the Second Appeal too was dismissed. 8. Thus, considering the overall facts of the case there is a dispute between the parties, that has to be resolved by the Arbitrator as per the terms of the Agreement. It is also borne out from record that the applicant had sent legal notice on 10.08.2005 (Annex. 11) and had deposited the requisite fees for referring the dispute to Arbitrator as per the terms of the Agreement but despite expiry of reasonable and statutory time, the matter has not been referred to Arbitrator, that gives a cause to file this application. 9. Looking to the overall facts and circumstances of the case, this application deserves to be allowed. Shri N.P. Mathur, Retired Chief Engineer (PWD), 3 Hari Marg, Civil Lines, Jaipur (Raj.) is hereby appointed as the Sole Arbitrator to resolve the dispute between the parties. The parties are free to raise their dispute, claim, counter-claim etc., before the Arbitrator. Initial expenses of Rs. 5,000/- shall be deposited (subject to adjustment at the time of final determination of fees) by the applicant with the Arbitrator so that the learned Arbitrator may start the arbitral proceedings. The fee of Arbitrator and the cost of arbitration shall be determined by the Arbitrator himself and that shall be borne euqally by the parties. The Arbitrator may be informed accordingly. Thus, the application stands disposed of. * * * * *