JUDGMENT 1. - Heard learned counsel for the parties. 2. This is an arbitration application under Section 11 of the Arbitration and Conciliation Act, 1996 arising out of agreement No.1/2006-2007 which contains arbitration clause no.23 for referring the dispute to an independent arbitrator. 3. Briefly stated the facts of the case are that the claimant- applicant was awarded a work for construction of 200 Feet wide Mahal Road in Jagatpura for a consideration of Rs. 5,43,16,532/- and agreement no.01/2006-2007 (Annexure- 3) was executed between the parties which contains arbitration clause 23 in respect of which work order No. JDA/ZE-9/D-199 dated 22 and April, 2006 (Annexure-2) was issued in its favour. As per the terms of the contract, the applicant submitted Bank Guarantee of Rs. 54,31,700/- which was further renewed up to 25 the April, 2011. As per the case of the claimant applicant, he completed the work of Rs. 3, 31,25,702/- on the land made available from time to time that too after expiry of the original period but out of which also an amount of Rs. 4,25,000/- has 2 been deducted by the non-applicants. The non-applicants have terminated the contract of the claimant applicant on 4 the July, 2011 and on the same date, the Bank Guarantee of Rs. 54,31,700/- has been revoked and the non-applicants received the said amount from the Bank and also did not make the payment of the final bill to the claimant applicant despite several correspondence in this regard. Thus, a dispute has arisen between the applicant and the non-applicants. 4. Counsel for the applicant submits that on 5 the August, 2011 the applicant, in person, has submitted an application (Annexure-22) in the office of non-applicants as per clause 23 in the prescribed proforma along with a pay order of Rs. 1,00,000/- for referring the dispute to the empowered standing committee but the matter was not referred within the prescribed period of 30 days. Therefore, the applicant has filed the present application seeking appointment of independent arbitrator. 5. Counsel for the non-applicants has filed a reply to the arbitration application and in the reply a preliminary objection has been raised that clause 23 is not an arbitration clause and further it has been submitted that the meeting of the empowered standing committee was held on 3rd October, 2011. Therefore, the arbitration application has become infructuous. 6. 5. Counsel for the non-applicants has filed a reply to the arbitration application and in the reply a preliminary objection has been raised that clause 23 is not an arbitration clause and further it has been submitted that the meeting of the empowered standing committee was held on 3rd October, 2011. Therefore, the arbitration application has become infructuous. 6. Per contra submission of the counsel for the applicant is that clause 23 is an arbitration clause and that no reference to the empowered standing committee till the date of filing of the present arbitration application was made, therefore, the non- applicants have forfeited their right to refer the dispute to the empowered standing committing after filing of the present application on 15.9.2011. In support of the aforesaid submission, counsel for the applicant has placed reliance on paragraph Nos. 1 and 2 of the judgment of this Court in the case of Brahma Prakash v. State of Rajasthan and Ors., 2003 WLC (Raj.) UC 256 , and paragraph 19 of the judgment of the Supreme Court in the case of Datar Switchgears Ltd. v. Tata Finance Ltd. and Anr., (2000) 8 SCC 151 , which has been affirmed in Para 5 of the judgment of three Learned Judges of the Supreme Court in the case of Punj Lloyd Ltd. v. Petronet MHB Ltd., (2006) 2 SCC 638 . Both the aforesaid judgments have been relied upon and referred ti in paragraph Nos. 8 and 9 in the judgment of Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. and Anr. v. Dhanurdhar Champatiry, (2010) 1 SCC 673 . 7. I have gone through the record of the case and further considered the rial submissions of counsel for the parties. 8. This Court in Brahma Prakash v. State of Rajasthan and Ors., 2003 WLC (Raj.) UC 256 , has held that Clause 23 regarding making reference to the empowered standing committee is an arbitration clause. For reference that Clause 23 is an arbitration clause, the relevant paragraph Nos. 1 and 2 of the judgment in the case of Brahma Prakash (supra) are as follows. "1. This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 has been moved seeking the appointment of sole Arbitrator. For reference that Clause 23 is an arbitration clause, the relevant paragraph Nos. 1 and 2 of the judgment in the case of Brahma Prakash (supra) are as follows. "1. This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 has been moved seeking the appointment of sole Arbitrator. The respondents has raised a preliminary objection that there is no arbitration clause in the agreement and in view of Clause 51, there is no scope for any arbitration and the matter is required to go to Civil Court. Clause 23 and Clause 51 of the agreement are reproduced as under: "Clause 23. If any question. difference or objection whatsoever shall, in any way in connection with or arising out of this instruction or the meaning of operation of any part thereof or the rights, duties , or liabilities of either party, then save so far as the decision of any such matter as herein before provided for and has been so decided, every such matter constituting a total claim of Rs. 50,000/- or above, whether its decision has been otherwise provided for and whether it has been finally decided accordingly or whether the contract should be terminated or has been rightly terminated and as regards the rights or obligations of the parties as the result of such termination shall be referred for adjudication the empowered Standing Committee which would consist of the following: (a) Administrative Secretary concerned. (b) Finance Secretary or his nominee not below the rank of Deputy Secretary. (c) Law Secretary or his nominee not below the rank of Joint L.R. (d) Chief Engineer-cum-Additional Secretary of the concerned Department. (e) Chief Engineer concerned (Member Secretary) "Clause 51. In the event of any dispute arising between the parties here to in respect of any of the matter comprised in this agreement, the same shall be settled by a competent Court having jurisdiction over the place where agreement is executed and by no other Court." 2. (e) Chief Engineer concerned (Member Secretary) "Clause 51. In the event of any dispute arising between the parties here to in respect of any of the matter comprised in this agreement, the same shall be settled by a competent Court having jurisdiction over the place where agreement is executed and by no other Court." 2. It is very clear from Clause 23 itself that the arbitration is contemplated in the agreement and the language of Clause 23 makes it very clear as mentioned in the clause has to take the arbitration proceedings in normal course, in case the request is made by one party and the concerned authority has to act within a period of 30 days from the date the notice given for appointment of Arbitrator for arbitration proceedings. So far as Clause 51 is concerned that relates to the territorial jurisdiction of the Civil Court, f at all, any dispute is taken to the Civil Court by any other parties. Clause 51 does not impinge upon the arbitration. Therefore, the preliminary objection raised by the respondents fails ad the same is hereby rejected" (Emphasis supplied) 9. Clause 23 and 51 in this particular case is in the same language, therefore. Clause 23 is an arbitration clause and the preliminary objection raised by the counsel for the non-applicants has no force the same is, rejected. 10. The Supreme Court in the Case of Datar Switchgears Ltd., (supra) has held that after expiry of 30 days period from the date of arbitration was demanded, the right of the concerned authorities to refer the matter to the empowered standing committee continued but the same stand forfeited on the date of filing of the arbitration application. The proposition of law laid down in the case of Datar Switchgears Ltd. has been affirmed by the Bench of three learned Judges of the Supreme Court in para no.5 in the case of Punj Llyod Ltd. and both these judgments have been relied upon and followed paras 8 and 9 in the case Bharat Sanchar Nigam Ltd. It would be appropriate to reproduce para nos. 8 and 9 of the judgment in the case of Bharat Sanchar Nigam Ltd. which are as follow:- "8. In this connection, a three-Judge Bench decision of this Court in Punj Lloyd Ltd. v. Petronet MHB Ltd., (2006) 2 SCC 638 may be referred to. 8 and 9 of the judgment in the case of Bharat Sanchar Nigam Ltd. which are as follow:- "8. In this connection, a three-Judge Bench decision of this Court in Punj Lloyd Ltd. v. Petronet MHB Ltd., (2006) 2 SCC 638 may be referred to. In this case, this Court considered the applicability of Section 11(6) of the Act and after considering the scope and object of the Act held that once notice period of thirty days has expired and the party has moved the Hon'ble Chief Justice of the High Court under Section 11(6) of the Act, the other party loses his right to appoint an arbitrator on the basis of the arbitral agreement. 9. While taking this view, this Court in Punj Lloyd case has relied on the judgment referred in Datar Switchgears Ltd. v. Tata Finance Ltd., (2000) 8 SCC 151 wherein this Court observed as follows:- (SCC p.158, para 19) "19. 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 [do] not make an appointment within 30 days of the demand, the right to appoint does not get automatically forfeited after expiry of 30 days. If the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the court under Section 11 , [which] 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 opposite party ceases." (emphasis already supplied/supplied) 11. As regards the matter having referred to the empowered standing committee is concerned, in the reply no date has been mentioned that prior to the filing of the present arbitration 6 application on 15 the September, 2011 the matter was referred to the Empowered Standing committee. 12. Only then the right of opposite party ceases." (emphasis already supplied/supplied) 11. As regards the matter having referred to the empowered standing committee is concerned, in the reply no date has been mentioned that prior to the filing of the present arbitration 6 application on 15 the September, 2011 the matter was referred to the Empowered Standing committee. 12. For filing the additional affidavit on the aforesaid issue of specific date of reference, on 17 the May, 2012 and subsequent thereto time was granted to the counsel for the non-applicants and ultimately additional affidavit was filed on 6 the August, 2012 but no specific date of reference has been mentioned. Therefore, the counsel for the applicant is right in his submission supported by the aforesaid judgments of the Supreme Court referred to hereinabove in para no.10, that no reference to the empowered standing committee was made till the date of filing of this arbitration application i.e. 15 the September, 2011 and the right of the non-applicants to refer the matter to the empowered standing committee stands forfeited and the applicant is entitled for appointment of independent Arbitrator. 13. In this view of the matter, the applicant is entitled for appointment of the independent Arbitrator to adjudicate the dispute between the parties. Mr. LL Gupta Counsel for the applicant has suggested the name of Shri MM Singh, Retired Addl. Chief Engineer, 99A, University Marg, Bapu Nagar, Jaipur for appointment as the independent Arbitrator in this case. I also deem it proper to appoint Shri MM Singh, Retd. Addl. Chief Engineer as the independent Arbitrator. 14. In view of the discussions hereinabove, this arbitration application is allowed and Shri MM Singh, Retired Addl. Chief Engineer, 99A,University Marg, Bapu Nagar, Jaipur is appointed 7 Arbitrator. The terms and conditions of arbitration shall be settled by the Arbitrator as per the Arbitration Manual. A copy of this order be sent to the Arbitrator.Application allowed. *******