ORDER 1. This is an application under Section 11(5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) for appointment of an arbitrator. 2. The applicant is a Government contractor He was awarded the work of widening of road and re-surfacing of old road at C.W.C., Loni at the price of Rs. 50,32,724.15. According to the applicant, at the time of submission of tender for work, i.e. 27.10.1999, the rate of bitumen, which is a petroleum by-product and basic raw material for constructing the road, was Rs. 7553.92 per MT while at the time of execution of the work which started on 8.1.2000 and was completed on 18.5.2000, there was escalation by 40% in the rate of the said product as it was enhanced to Rs. 10,412.16 per MT. As per Clause 10-C of Contract, the first 10% of escalation is required to be borne by the applicant while the remaining is to be borne by the respondents. Thus, according to the applicant, after deduction of 10% escalation, an extra amount of Rs. 6,98,482.65 became payable by the respondents for which a demand was raised by the applicant vide letter dated 19.9.2001. The applicant received payments from time-to-time and after the completion of the Contract, submitted his Final Bill for Rs. 4,88,918.54 along with letter dated 19.9.2001. The respondents made a part payment of Rs. 64,067/- in the last week of August, 2002. The respondents, however, failed to make the payment of the balance amount of Final Bill as well as the amount due on account of escalation and, therefore, the applicant vide his letter dated 3.9.2002, invoked the arbitration clause in which the applicant raised the following claims: (a) Claim for balance payment for the work Rs.3,66,355.74 executed (b) Claim for reimbursement due to increase in price of bitumen as per Clause 10-C Rs. 6,98,482.65 (c) Claim for amount of Sales Tax illegally deducted Rs. 1,87,847.00 (d) Claim for interest @ 24% per annum on the above (a) to (c) 3. Since the respondent::; failed to appoint the arbitrator, the prayer is made for appointment of an arbitrator under Section 11(6) of the Act. 4. The respondents opposed all the claims raised by the applicant. 1,87,847.00 (d) Claim for interest @ 24% per annum on the above (a) to (c) 3. Since the respondent::; failed to appoint the arbitrator, the prayer is made for appointment of an arbitrator under Section 11(6) of the Act. 4. The respondents opposed all the claims raised by the applicant. Insofar as claim (a) is concerned, it is contended by the respondents that the claim is not sustainable in view of Clause 8A of the Contract and is an excepted matter and cannot be referred to arbitration. As regards claim (b), the respondents C0l1tended that the price of bitumen is not covered by any Statutory Rule or Order and, therefore, reimbursement on account of increase in price is not permissible under Clause 1O-C. As regards Claim (c), the respondents contended that the order passed by the office of the Dy. Commissioner, Sales Tax whereby the sales tax Was required to be deducted @ 1 % was not submitted by the applicant. 5. At the outset it may be noted that in the present case, the arbitration clause, i.e. Clause 25 is couched in a very wide and comprehensive language as it contemplates that all claims, rights, matters or things whatsoever in any way arising out of or relating to the contract has to be referred to the arbitration. 6. Learned Counsel appearing for the applicant submitted that the plea of the respondent that the claim (a) of the applicant is an excepted matter is unsustainttble illlaw inasmuch as Clause 8-A of the Contract is not attracted in the present case. He pointed out that Clause 8-A of the Contract provides that the measurements taken by the Engineer In charge of the respondents shall be final and if the Contractor fails to record the difference within a week from the date of measurement, the Contractor shall have no right to dispute the same. Learned Counsel submitted that the payment of Rs. 46,97,956/- on 11.6.2002 cannot be regarded as full and final settlement as the respondents themselves, on submission of the last and Final Bill by the applicant, made a payment of Rs.64,067/- in the 13.st week of August, 2002. Thus, the act of making part payment by the respondents itself shows that the respondents were not themselves sure about the measurements and the said measurements were not final. Thus, the act of making part payment by the respondents itself shows that the respondents were not themselves sure about the measurements and the said measurements were not final. It is also pointed out by the learned counsel for the applicant that the respondents in their reply dated 10.10 .2002 have further stated that the claims in regard to item Nos. 9, 10 and 11 which is in fact part of the outstanding amount of Rs.3,60,355.74 could be sorted out amicably. This fact again shows that the right of the applicant to claim the balance amount was in fact accepted and acknowledged by the respondents. 7. In regard to claim (b), learned counsel appearing for the applicant submitted that the claim for escalation on account of increase in price of bitumen is clearly covered by Clause 10-C of the Contract inasmuch as bitumen being a petroleum product is under the control of Ministry of Petroleum and Chemicals and any increase in its rate can only be done by the concerned Ministry and as such, the claim falls within the ambit of Clause 25 of the Contract. 8. In regard to claim (c), learned Counsel pointed out that the excess amount of Rs. 1,87,847/- was wrongly deducted by the respondents towards Sales Tax which is a arbitrable dispute under Clause 25. 9. Prima facie I am satisfied that none of the claims fall in excepted category, however, it is not necessary to decide this issue in view of the recent pronouncement of the Supreme Court in National Insurance Company Limited v. Boghara Polyfab Pvt. Ltd., VIII (2008) SLT 368= (2009) 1 SCC 267 , wherein a two-Judge Bench, after examining the seven-Judge Bench judgment in 5BP & Co. v. Patel Engineering Ltd., VIII (2005) SLT 405=IV (2005) CLT 236 (SC)= (2005) 8 SCC 618 , held as follows: "22. Where the intervention of the Court is sought for appointment of an Arbitral Tribunal under Section 11, the duty of the Chief Justice or his designate is defined in SBP & Co. This Court identified and segregated the preliminary issues that may arise for consideration in an application under Section 11 of the Act into three categories, that is. Where the intervention of the Court is sought for appointment of an Arbitral Tribunal under Section 11, the duty of the Chief Justice or his designate is defined in SBP & Co. This Court identified and segregated the preliminary issues that may arise for consideration in an application under Section 11 of the Act into three categories, that is. (i) issues which the Chief Justice or his Designate is bound to decide; (ii) issues which he can also decide, that is, issues which he may choose to decide; and (iii) issues which should be left to the Arbitral Tribunal to decide. 22.1 The issues (first category) which Chief Justice/his designate will have to decide are- (a) Whether the party making the application has approached the appropriate High Court. (b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement. 22.2 The issues (second category) which the Chief Justice/his designate may choose to decide (or leave them to the decision of the arbitral Tribunal) are: (a) Whether the claim is a dead (long barred) claim or a live claim. (b) Whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection. 22.3 The issues (third category) which the Chief Justice/his designate should leave exclusively to the arbitral tribunal are- (i) Whether a claim made falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration). (ii) Merits or any claim involved in the arbitration. 23. It is clear from the Scheme of the Act as explained by this Court in SBP & Co., that in regard to issues falling under the second category, if raised in any application under Section 11 of the Act, the Chief Justice/his designate may decide them, if necessary, by taking evidence. Alternatively, he may leave those issues open with a direction to the Arbitral Tribunal to decide the same. If the Chief Justice of his Designate chooses to examine the issue and decides it, the arbitral Tribunal cannot re-examine the same. issue. Alternatively, he may leave those issues open with a direction to the Arbitral Tribunal to decide the same. If the Chief Justice of his Designate chooses to examine the issue and decides it, the arbitral Tribunal cannot re-examine the same. issue. The Chief Justice/his designate will, in choosing whether he will decide such issue or leave it to the arbitral Tribunal, be guided by the object of the Act (that is expediting the arbitration process with minimum judicial intervention). Where allegations of forgery / fabrication are made in regard to the document recording discharge of contract by full and final settlement, it would be appropriate if the Chief Justice/his designate decides the issue." 10. The question as to whether the claims fall in excepted category will have to be dealt with by the arbitrator in so far as Claims (a) and (b) are concerned. Insofar as Claim (c) is concerned, it is clearly arbitrable under Clause 25 of the Contract. 11. Having regard to the fact that the respondents, despite notice of 3.9.2002, failed to appoint the arbitrator and also in terms of Clause 25, the respondents have lost their right to make such appointment especially after a lapse of six years of the date of the contract, the interest of justice in my view, will be served if a retired District Judge is appointed as the sole arbitrator to adjudicate upon the disputes between the parties. 12. I appoint Mr. Prem Kumar, District Judge (Retd.) as the sole arbitrator to adjudicate upon the disputes between the parties. The fees of the arbitrator is fixed at Rs. 1,50,000/- (Rupees One Lakh Fifty Thousands only) to be shared equally by both the parties. Arbitration application stands disposed of. Arbitration Application disposed of.