JUDGMENT It is not a matter of dispute, that there was a contractual agreement between the parties. In the aforesaid contractual agreement, clause 18 is relevant to the present controversy. Clause 18 is, accordingly, being extracted hereunder :- “In the events of any dispute raising out of any condition of this agreement, the decision of the General Manager (North Zone), UPRNN Limited shall be final and binding on the both of the parties. 2. It is also not a matter of dispute, that a dispute was raised at the hands of the petitioner, through a communication dated 08.06.2004 which he addressed to the respondent. An extract of the aforesaid communication is being reproduced hereunder :- “Honourable Sir, We beg to invite your kind attention to our letter No. Nil dated 07.02.04 copy of which is enclosed as Annexure-1 for ready reference. The above letter was written to you in response to letter No. 145/RNN/F:10/2003 dated 18.08.2003 of Project Manager U.P.R.N.N.L., Unit-II, Haridwar a copy of which is enclosed as Annexure-II. We have not be favoured with any reply from your side as yet and consequent to the same a dispute stands created. Subsequent to this kindly refer our letter dated 03.03.04 copy enclosed as Annexure-III, letter dated 05.04.04 copy enclosed as Annexure-IV and our letter SCC/UPRNN/2004/dated 06.05.04 copy enclosed as Annexure-V. The amount payable by you is Rs. 1,87,10,093.53 (Rupees One Crore Eighty Seven Lacs Ten Thousand Ninety Three and Paise Fifty Three only) upto 06.05.04 and we also claim interest on this amount @ 24% p.a. C.I. (quarterly compounded) from 06.05.04 to the date amount is actually paid by you. Through this letter we once again request you to kindly settle the issue by making payment of the above sums of money. In case you do not wish to pay as it transpires from your actions a dispute having been created. Kindly appoint an Arbitrator to resolve the dispute as per terms and conditions of the Agreement. Through this letter we once again request you to kindly settle the issue by making payment of the above sums of money. In case you do not wish to pay as it transpires from your actions a dispute having been created. Kindly appoint an Arbitrator to resolve the dispute as per terms and conditions of the Agreement. If you do not appoint an arbitrator within a period of 30 days kindly take notice that we shall be moving to the High Court of Nainital, Uttaranchal under Sec. 11(6) of Arbitration & Reconciliation Act, 1996 for appointment of an arbitrator to help to resolve the dispute.” A perusal of the aforesaid communication reveals that the petitioner made it explicit that the dispute raised by the petitioner be referred to an arbitrator. The petitioner also called upon the respondent to ensure, that the appointment of the arbitrator was made within 30 days of the receipt of the aforesaid communication. The petitioner warned the respondent, that in case an arbitrator was not appointed within the stipulated time, he would be constrained to approach a court of competent jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “1996 Act”). 3. In furtherance of the letter dated 08.06.2004, two orders came to be passed by the respondent, first of which was dated 13.07.2004. By the aforesaid order, the General Manager (North Zone), UPRNN Ltd. took a decision on the dispute raised by the petitioner. Through the second communication dated 16.07.2004, the respondent informed the petitioner that the contact executed between the parties did not conceive of an arbitration clause, and as such, it was not essential for the respondent to appoint an arbitrator. 4. While opposing the prayer for appointment of an arbitrator raised at the hands of the petitioner, the respondent before this Court has raised the same two pleas, namely, that the issue sought to be adjudicated upon at the hands of the arbitrator had since been adjudicated upon (by the order dated 13.07.2004). And secondly, the contractual agreement between the parties did not conceive of an arbitration clause, and as such, the instant petition filed under Section 11 of the 1996 Act, was not maintainable in the eyes of law. 5. And secondly, the contractual agreement between the parties did not conceive of an arbitration clause, and as such, the instant petition filed under Section 11 of the 1996 Act, was not maintainable in the eyes of law. 5. It is essential to first adjudicate upon the jurisdictional issue, namely, whether the contractual agreement executed between the parties, postulates arbitration in case of a dispute (arising out of the said contract). The determination on the instant issue will depend on clause 18 of the contractual agreement (which has been extracted in the opening paragraph of this order). In order to substantiate his contention that the aforesaid clause envisages an arbitration, in case of a dispute, learned counsel for the petitioner has first placed reliance on the decision rendered by the Calcutta High Court in State of West Bengal & others Vs. Haripada Santra, AIR 1990 Calcutta 83. Insofar as the arbitration clause, which was the subject matter of consideration before the Calcutta High Court, is concerned, the same is decipherable from the averments made in paragraph 1 of the Judgment. Paragraph 1 of the judgment is being extracted hereunder : “The short question that crops up for determination in this revisional application is if in terms of clause 13 approval in West Bengal Form No. 2908, Department of Public Works Tender for supply of materials, reading as ‘in the event of a dispute, the decision of the Superintending Engineer of the Circle shall be final’ constituted an arbitration agreement.” The clause, under consideration before the Calcutta High Court, provided that in the event of a dispute, the decision of the Superintending Engineer of the Circle would be final. The Calcutta High Court in rendering its conclusion, in respect of the controversy (in paragraph 6 of the said Judgment) held as under : “6. Let us now examine in the aforesaid background of law as interpreted by the Supreme Court and other High Courts referred to above whether clause 13 constitute an arbitration agreement. We have already quoted the said clause, it speaks of a dispute between the parties. It also speaks of a decision by the Superintending Engineer of the Circle on such dispute. It is, therefore, very clear that all the disputes between the parties to the contract shall be decided by the Superintending Engineer. We have already quoted the said clause, it speaks of a dispute between the parties. It also speaks of a decision by the Superintending Engineer of the Circle on such dispute. It is, therefore, very clear that all the disputes between the parties to the contract shall be decided by the Superintending Engineer. Obviously such decision can be arrived at by the Superintending Engineer only when it is referred to him by either party for decision. The reference is also implied. As the Superintending Engineer will decide the matter on reference he has to act judicially and decide the dispute after hearing both the parties and permitting them to substantiate their claim by adducing materials in support. In deciding the dispute, he must act judicially. In the said clause it is also provided that his decision shall be final and as the agreement is binding between the parties the decision shall also bind both of them. The result would be the decision would be finally binding on the parties. Though the expression ‘award or arbitration’ is not appearing in the aforesaid clause, even then the expression as it stands embodies an arbitration clause which can be enforced. In this view of the matter, we are unable to find merit in this application and the same stands dismissed without any order as to costs.” According to the learned counsel for the petitioner, on the same analogy as was adopted by the Calcutta High Court, clause 18 of the contractual agreement in the present controversy also deserves to be accepted as an arbitration clause. 6. In order to substantiate his first contention, learned counsel for the petitioner also invited the attention of this Court to the decision rendered by a Division Bench of the Orissa High Court in Patitapaban Mohapatra and etc. etc. Vs. S.E. Eastern Circle and others etc., AIR 2008 Orissa 80, wherein, while making a reference to the following clause : “.....Provided always that if the contractor shall commence work or incur any expenditure in regard thereof before the rates shall have been determined as lastly hereinbefore mentioned, in such case he shall only be entitled to be paid in respect of the work carried out or expenditure incurred by him prior to the date of the determination of the rates as aforesaid according to such rate or rates as shall be fixed by the Engineer-in-charge. In the event of a dispute, the decision of the Superintending Engineer of the Circle/Range will be final.” The Orissa High Court, relying on two judgments of the Apex Court, arrived at the conclusion that the clause under reference was indeed an arbitration clause. In this behalf, the observations made by the Orissa High Court in paragraph 29 are being extracted hereunder : “29. In our view, the said Clause ‘B’ is an arbitration clause since the same satisfies the ingredients of an arbitration clause as indicated in the judgment of the Apex Court in Smt. Rukmanibai Gupta (AIR 1981 SC 479) (supra) and also in the recent decisions of the Apex Court in Bihar State Mineral Development Corporation (AIR 2003 SC 3688) and in Mallikarjun (AIR 2004 SC 716) where the ratio in Bihar State Mineral Development Corporation has been reiterated. Therefore, the judgment in Balalata’s case (supra) is overruled to the extent indicated above. The question which has been referred to the Division Bench is thus answered.” 7. Last of all, reference was made by the learned counsel for the petitioner to the decision rendered by the Apex Court in Mallikarjun Vs. Gulbarga University, AIR 2004 Supreme Court 716. During the course of the determination of the controversy before the Apex Court, Clause 30 of the contractual agreement was under consideration. Last of all, reference was made by the learned counsel for the petitioner to the decision rendered by the Apex Court in Mallikarjun Vs. Gulbarga University, AIR 2004 Supreme Court 716. During the course of the determination of the controversy before the Apex Court, Clause 30 of the contractual agreement was under consideration. Clause 30, which has been reproduced in paragraph 4 of the aforesaid Judgment, is being reproduced hereunder : “Clause 30 of the agreement, which reads as under: The decision of the Superintending Engineer of the Gulbarga Circle for the time being shall be final, conclusive, and binding on all parties to the contract upon all questions relating to the meaning of the specifications, designs, drawings and instructions herein before mentioned and as to the quality of workmanship or material used on the work, or as to any other 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 those conditions, or otherwise concerning the works or the execution, or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment thereof in case of dispute arising between the contractor and Gulbarga University.” Decision in connection with the issue wherein the clause extracted above envisages an arbitration in the case of a dispute, was rendered in paragraph 6, wherein the Apex Court arrived at the conclusion that Clause 30 (extracted herein above) fulfills all the criteria of a valid arbitration agreement. 8. Based on the aforesaid Judgments, it is the submission of the learned counsel for the petitioner that insofar as the present controversy is concerned, clause 18 of the contractual agreement between the parties should also be treated as an arbitration agreement. 9. Learned counsel for the respondent could not dispute the proposition of law canvassed at the hands of the learned counsel for the petitioner. In view of the decisions rendered by the Calcutta High Court as also by the Orissa High Court, and then, by the Apex Court, as have been relied upon by the learned counsel for the petitioner, I am satisfied that clause 18 of the contractual agreement executed between the parties constitutes, in the present controversy, an arbitration clause, postulated to settle disputes arising out of the contractual agreement. 10. 10. The next issue that needs to be determined is, whether an arbitrator can be appointed in the facts and circumstances of the present case, namely, that the express arbitrator referred to in clause 18 of the agreement between the parties has already taken a final decision on the controversy raised by the petitioner by passing an order dated 13.07.2004. So as to arrive at an answer to the instant issue, reference may be made to Section 11 of the 1996 Act. The same is being extracted hereunder : “11. Appointment of arbitrators. – (1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties. (2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. (3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. (4) If the appointment procedure in sub-section (3) applies and – (a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him. (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. (7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final. (8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to- (a) any qualifications required of the arbitrator by the agreement of the parties; and (b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator. (9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. (10) The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by sub-section (4) or Sub-section (5) or sub-section (6) to him. (11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request. (12) (a). Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the “Chief Justice of India”. (12) (a). Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the “Chief Justice of India”. (b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the “Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.” A perusal of sub-section (4) extracted above reveals, that if the concerned party fails to appoint an arbitrator within 30 days from the receipt of a request to do so, the concerned party can approach a court of competent jurisdiction, requiring it to appoint an arbitrator. There is no material on the record of this case to depict that in furtherance of the communication dated 08.06.2004, the respondent ever informed the petitioner, that in furtherance of the request made by the petitioner, an arbitrator had been appointed. Since no such communication was addressed by the respondent to the petitioner within 30 days, it is apparent that the remedy available to the petitioner under Section 11(4) of the 1996 Act became enforceable in law. In fact, the petitioner availed of this remedy by approaching this Court through the instant Petition on 13.07.2004. There may have been some ambiguity about the determination of the present controversy on the basis of the order passed by the General Manager (North Zone), UPRNN Ltd., whereby he took a decision on merits on the disputes raised by the petitioner by an order also dated 13.07.2004. But, in the facts and circumstances of the present case, there appears to be hardly any dispute, that the respondent never treated clause 18 of the contractual agreement as an arbitration clause, and in fact, communicated an order to the aforesaid effect to the petitioner on 16.07.2004. The order dated 13.07.2004, therefore, cannot be treated as having been passed in exercise of the authority vested in General Manager (North Zone), UPRNN Ltd. as an arbitrator. 11. The order dated 13.07.2004, therefore, cannot be treated as having been passed in exercise of the authority vested in General Manager (North Zone), UPRNN Ltd. as an arbitrator. 11. In view of the above, since no arbitrator was appointed by the respondent within the stipulated period of 30 days contemplated under Section 11 of the 1996 Act, it is imperative for this Court to appoint an arbitrator. 12. At the joint request of the learned counsel for the parties, Hon’ble Mr. Justice Krishna Kumar, a former Judge of the Allahabad High Court, is hereby appointed as arbitrator. The arbitrator shall determine his own fee and terms & conditions of appointment. The aforesaid determination by the arbitrator, shall be keeping in view, the total quantum of the claim raised by the petitioner. 13. Parties are directed to appear before the arbitrator, through counsel, on 6th January, 2010. 14. Petition stands allowed in the aforesaid terms. 15. The Registry of this Court shall forward a copy of this order to the arbitrator, without any delay.