ORDER 04.04.2014This application seeks direction to appoint arbitrator. 2.The case of the petitioner is that he entered into a contract with the Executive Engineer, Rural Works Division-II, Kendrapara, for construction and maintenance of Road under the PMGSY. The said work was to commence from 27.02.2006 and the time for execution of work was up to 26.11.2006. The work could not be completed for reasons not attributable to the petitioner. He raised a dispute as per Clause-24 of the agreement and on failure of the department to resolve the dispute, he has approached this Court for appointment of arbitrator. 3.We have heard the learned counsel for the petitioner. 4.The clauses in question claimed to be arbitration clauses are as follows : “24.4. The Contractor and the Employer will be entitled to present their case in writing duly supported by documents. If so requested, the Standing Empowered Committee may allow one opportunity to the Contractor and the Employer for oral arguments for a specified period. The Empowered Committee shall give its decision within a period of 90 days from the date of appeal, failing which the Contractor can approach the appropriate Court for the resolution of the dispute. 24.5. The decision of the Standing Empowered Committee will be binding on the Employer for payment of claims up to five per cent of the Initial Contract Price. The Contractor can accept and receive payment after signing as “in full and final settlement of claims”. If he does not accept the decision, he is not barred from approaching the Courts. Similarly, if the employer does not accept the decision of the Standing Empowered Committee above the limit of five per cent of the Initial Contract Price, he will be free to approach the Courts applicable under the law. 25. Arbitration : 25.1 In view of the provision of the Clause 24 on Dispute Redressal System, it is the condition of the Contract that there will be no arbitration for the settlement of any dispute between the parties.” 5.A perusal of the above clauses clearly shows that there is no arbitration agreement. Clause 25.1 specifically states that “there will be no arbitration”. Clause 24 cannot be read as arbitration agreement. The Standing Empowered Committee can take a decision on the dispute, but the said decision is not binding on bot the parties. Clause 25.1 specifically states that “there will be no arbitration”. Clause 24 cannot be read as arbitration agreement. The Standing Empowered Committee can take a decision on the dispute, but the said decision is not binding on bot the parties. Clause 24.5 shows that the decision is binding on the employer to a limited extent. Similarly, the contractor is free to accept it or to approach the Court. The department also may not accept the decision fully. It is well settled that to constitute the arbitration agreement, it must provide for a binding decision to be arrived at. 6.In K.K. Modi v. K.N. Modi and others, (1998) 3 SCC 573 , it was observed : “17. Among the attributes which must be present for an agreement to be considered as an arbitration agreement are : (1) The arbitration agreement must contemplate that the decision of the tribunal will be binding on the parties to the agreement, (2) that the jurisdiction of the tribunal to decide the rights of parties must derive either from the consent of the parties or from an order of the Court or from a statute, the terms of which make it clear that the process is to be an arbitration, (3) the agreement must contemplate that substantive rights of parties will be determined by the agreed tribunal. (4) that the tribunal will determine the rights of the parties in an impartial and judicial manner with the tribunal owing an equal obligation of fairness towards both sides, (5) that the agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law and lastly, (6) the agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal. 18. The other factors which are relevant include, whether the agreement contemplates that the tribunal will receive evidence from both sides and hear their contentions or at least give the parties an opportunity to put them forward; whether the wording of the agreement is consistent or inconsistent with the view that the process was intended to be an arbitration and whether the agreement requires the tribunal to decide the dispute according to law.” 7.In Bharat Bhushan Bansal v. U.P. Small Industries Corpn. Ltd., (1999) 2 SCC 166 , it was observed : “9. Ltd., (1999) 2 SCC 166 , it was observed : “9. In the present case, the Managing Director is more in the category of an expert who will decide claims, rights, or matters in any way pertaining to the contract. The intention appears to be more to avoid disputes than to decide formulated disputes in a quasi-judicial manner. In para 18.067 of Vol. 2 of Hudson on Building and Engineering Contracts, Illustration (8) deals with the case where, by the terms of a contract, it was provided that the engineer. “shall be the exclusive judge upon all matters relating to the construction, incidents and the consequences of these presents, and of the tender, specifications, schedule and drawings of the contract, and in regard to the execution of the works or otherwise arising out of or in connection with the contract, and also as regards all matters of account, including the final balance payable to the contractor, and the certificate of the engineer for the time being, given under his hand, shall be binding and conclusive on both parties.” It was held that this clause was not an arbitration clause and that the duties of the Engineer were administrative and not judicial. 10. Since clause 24 does not contemplate any arbitration, the application of the appellant under Section 8 of the Arbitration Act, 1940 was misconceived. The appeal is, therefore, dismissed though for reasons somewhat different from the reasons given by the High Court. There will, however, be no order as to costs.” 8.In Jagdish Chander v. Ramesh Chander and others, (2007) 5 SCC 719 , it was observed : “8. This Court had occasion to refer to the attributes or essential elements of an arbitration agreement in K.K. Modi v. K. N. Modi, (1998) 3 SCC 573 , Bharat Bhushan Bansal v. U.P. Small Industries Corpn. Ltd., (1999) 2 SCC 166 and Bihar State Mineral Development Corpn. v. Encon Builders (I) (P) Ltd., (2003) 7 SCC 418 . In State of Orissa v. Damodar Das, (1996) 2 SCC, 216, this Court held that a clause in a contract can be construed as an “arbitration agreement” only if an agreement to refer disputes or differences to arbitration is expressly or impliedly spelt out from the clause. We may at this juncture set out the well-settled principles in regard to what constitutes an arbitration agreement. We may at this juncture set out the well-settled principles in regard to what constitutes an arbitration agreement. (i)The intention of the parties to enter into an arbitration agreement shall have to be gathered from the terms of the agreement. If the terms of the agreement clearly indicate an intention on the part of the parties to the agreement to refer their disputes to a private tribunal for adjudication and a willingness to be bound by the decision of such tribunal on such disputes, it is arbitration agreement. While there is no specific form of an arbitration agreement, the words used should disclose a determination and obligation to go to arbitration and not merely contemplate the possibility of going for arbitration. Where there is merely a possibility of the parties agreeing to arbitration in future, as contrasted from an obligation to refer disputes to arbitration, there is no valid and binding arbitration agreement. (ii) Even if the words “arbitration” and “Arbitral Tribunal (or arbitrator)” are not used with reference to the process of settlement or with reference to the private tribunal which has to adjudicate upon the disputes, in a clause relating to settlement of disputes, it does not detract from the clause being an arbitration agreement if it has the attributes or elements of an arbitration agreement. They are : (a) The agreement should be in writing. (b) The parties should have agreed to refer any disputes (present or future) between them to the decision of a private tribunal. (c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving due opportunity to the parties to put forth their case before it. (d) The parties should have agreed that the decision of the private tribunal in respect of the disputes will be binding on them. (iii) Where the clause provides that in the event of disputes arising between the parties, the disputes shall be referred to arbitration, it is an arbitration agreement. Where there is a specific and direct expression of intent to have the disputes settled by arbitration, it is not necessary to set to the attributes of an arbitration agreement to make it an arbitration agreement. Where there is a specific and direct expression of intent to have the disputes settled by arbitration, it is not necessary to set to the attributes of an arbitration agreement to make it an arbitration agreement. But where the clause relating to settlement of disputes, contains words which specifically exclude any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it will not be an arbitration agreement. For example, where an agreement requires or permits an authority to decide a claim or dispute without hearing, or requires the authority to act in the interests of only one of the parties, or provides that the decision of the authority will not be final and binding on the parties, or that if either party is not satisfied with the decision of the authority, he may file a civil suit seeking relief, it cannot be termed as an arbitration agreement. (iv) But mere use of the word “arbitration” or “arbitrator” in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example, use of words such as “parties can, if they so desire, refer their disputes to arbitration” or “in the event of any dispute, the parties may also agree to refer the same to arbitration” or “if any disputes arise between the parties, they should consider settlement by arbitration” in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement. Similarly, a clause which states that “if the parties so decide, the disputes shall be referred to arbitration” or “any disputes between parties, if they so agree, shall be referred to arbitration” is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses require the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future.” 9.In Vishnu (Dead) by Lrs. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future.” 9.In Vishnu (Dead) by Lrs. v. State of Maharashtra and others, (2014) 1 SCC 516 , it was observed as follows :- “13.4. However, there is nothing in the language of Clause 30 from which it can be inferred that the parties had agreed to confer the role of arbitrator upon the Superintending Engineer of the Circle. 14. In Russell on Arbitration, 21st Edn., the distinction between an expert determination and arbitration has been spelt out in the following words : “Many cases have been fought over whether a contract’s chosen form of dispute resolution is expert determination or arbitration. This is a matter of construction of the contract, which involves an objective enquiry into the intentions of the parties. First, there are the express words of the disputes clause. If specific words such as ‘arbitrator’, ‘Arbitral Tribunal’, ‘arbitration’ or the formula ‘as an expert and not as an arbitrator’ are used to describe the manner in which the dispute resolver is to act, they are likely to be persuasive although not always conclusive .... Where there is no express wording, the Court will refer to certain guidelines. Of these, the most important used to be, whether there was an ‘issue’ between the parties such as the value of an asset on which they had not taken defined positions, in which case the procedure was held to be expert determination; or a ‘formulated dispute’ between the parties where defined positions had been taken, in which case the procedure was held to be an arbitration. This imprecise concept is still being relied on. It is unsatisfactory because some parties to contract deliberately choose expert determination for dispute resolution. The next guideline is the judicial function of an Arbitral Tribunal as opposed to the expertise of the expert... This imprecise concept is still being relied on. It is unsatisfactory because some parties to contract deliberately choose expert determination for dispute resolution. The next guideline is the judicial function of an Arbitral Tribunal as opposed to the expertise of the expert... An Arbitral Tribunal arrives at its decision on the evidence and submissions of the parties and must apply the law or, if the parties agree, on other consideration; an expert, unless it is agreed otherwise, makes his own enquiries, applies his own expertise and decides on his own expert opinion .....” 10.From the above decisions, it is clear that unless an agreement envisages a decision final and binding on the parties, same cannot be held to be the arbitration agreement. Expert determination is different from arbitration. 11.In the present case, neither expressly nor impliedly, the provisions for reference to Special Empowered Committee can be treated as arbitration clause. The application for appointment of arbitrator cannot thus be entertained. The petition is dismissed. Petition dismissed.