JUDGMENT : Mohammad Rafiq, J. This application under Section 11(6) and section 15 of the Arbitration and Conciliation Act, 1996, has been filed by petitioner M/s. Rajendra Singh Bhamboo Infra Pvt. Ltd., praying for appointment of an independent sole Arbitrator to adjudicate the disputes and differences between the petitioner and the respondents, arising out of an agreement dated 22.03.2014. The petitioner is a company registered under the provisions of the Companies Act, 1956 having its registered office at Jaipur. The respondents issued a tender for urgent repair work of Gurgaon-Kotputli-Jaipur Section of NH-8 from Ch.107.100 to Ch.273.00 in the State of Rajasthan. The petitioner submitted a bid of Rs. 17,49,05,881/-, which was accepted by the respondents and accordingly, vide letter No. 3970 dated 24.02.2014, the respondent No. 1 accorded approval and awarded the work in favour of the petitioner. The Project Director issued consequential letter of approval dated 25.02.2014. An agreement was entered into between the petitioner and respondent National Highways Authority of India to deal with the urgent repair work of Gurgaon-Kotputli-Jaipur Section of NH-8 from Ch.107.100 to Ch.273.00 in the State of Rajasthan. 2. The petitioner deposited a bid security amount of Rs. 29.60 lakhs at the time of bidding and further as per the terms of the said agreement, more particularly term 34 of the Instructions to Bidders, the petitioner deposited a performance security in the form of a bank guarantee to the extent of 5% of the bid amount, being Rs. 87,45,300/-. 3. Mr. Anuroop Singhi, learned counsel for the petitioner, submitted that the petitioner proceeded to carry out the repair work of the NH-8 assigned to it, as per the agreement executed, with utmost sincerity and diligence. The petitioner, vide letter dated 10.04.2014, informed the respondent regarding the difficulties faced by the petitioner in getting the repair work, one of which was stagnate puddle of water on the national highway, which was followed by further letters dated 08.05.2014, 02.06.2014 and 30.06.2014. Despite repeated communications, no heed was paid by the respondent to any of the aforesaid letters and nothing was done to remove the difficulties faced by the petitioner. In spite of various hurdles including various Force Majeure events, petitioner completed the assigned work, which is evident from the letter dated 12.01.2015 written by Aarvee Associate-an independent Engineer for six lane of Gurgaon-Kotputli-Jaipur, Section of NH-8, to the Project Director, NHAI, Jaipur. In spite of various hurdles including various Force Majeure events, petitioner completed the assigned work, which is evident from the letter dated 12.01.2015 written by Aarvee Associate-an independent Engineer for six lane of Gurgaon-Kotputli-Jaipur, Section of NH-8, to the Project Director, NHAI, Jaipur. An Independent Engineer certified the completion of work by 13.08.2014. Learned counsel therefore argued that the said letter dated 12.01.2015 was to be considered as "Completion Certificate" in terms of Clause 55 of the Conditions of the Contract. Despite completion of complete work even after the expiry of 'defect liability period' on 12.08.2015 and in spite of good quality work done, the respondents, for inappropriate and arbitrary reasons, failed to release the performance bank guarantee and the petitioner was directed to renew and extend the said bank guarantee. The petitioner, by letter dated 12.10.2015, explained to the respondents the nuances of the work completed and the difficulty faced by it due to substandard work made available to it and also the problem faced as a result of the damage to the Kotputli flyover. It was again stated in their letter dated 12.10.2015 that it completed the work in the month of August, 2014. 4. Learned counsel argued that factum of completion of the work to the satisfaction of NHAI also stand proved from the very fact that the amount of security in the form of bank guarantee amounting to Rs. 87,45,300/-, having deposited by the petitioner was also released by the NHAI. The said amount of retention money was in terms of Clause 48 of the Contract Agreement, according to which the NHAI shall retain 5% amount from each payment due to the Contractor until completion of the work and on completion of the work, half of the total amount i.e. 2.5% will be repaid and the balance 2.5% will be repaid when the 'defect liability period' has passed and the I.E. has certified that all defects notified by the I.E. to the contractor before the end of the period have been corrected. 5. Learned counsel for the petitioner submitted that it is an admitted fact that the bank guarantee of the said amount of 5%, amounting to Rs. 42,50,000/- has been duly released by the NHAI, making it loud and clear that the work has been duly completed and all the defects, if any, have been corrected. 5. Learned counsel for the petitioner submitted that it is an admitted fact that the bank guarantee of the said amount of 5%, amounting to Rs. 42,50,000/- has been duly released by the NHAI, making it loud and clear that the work has been duly completed and all the defects, if any, have been corrected. In the light of Clauses 34, 48 and 51 of the Contract Agreement, there is no occasion for NHAI to retain the bank guarantee towards performance security of Rs. 87,45,300/-. 6. Learned counsel submitted that Clause 25.3 of the conditions of the contract, provides for settlement of disputes and differences between the parties in terms of the Arbitration and Conciliation Act, 1996. The petitioner therefore served a registered notice dated 16.10.2016 on the respondents through its counsel in accordance with the arbitration clause calling upon the respondents to agree for on the name of the sole Arbitrator. Despite lapse of the period of thirty days, they failed to respond to the aforesaid request of the petitioner. Thereafter, the petitioner conveyed to the respondent No. 3 that the said notice has been duly communicated to Regional Office of NHAI vide letter dated 22.10.2016. Learned counsel submitted that since the respondents have failed to act as per the agreed procedure despite lapse of 30 days for resolving the dispute through the named arbitrator, therefore they have forfeited their right to now appoint arbitrator. The petitioner in the circumstances was constrained to file application seeking reference. 7. Mr. Arnav Singh, brief-holder of Mr. Sandeep Pathak, learned counsel for respondents, opposed the application and submitted that the main issue regarding non-payment of bank guarantee amounting to Rs. 87,45,300/-, the Deputy General Manager of NHAI wrote to Chief General Manager with regard to issue of nonpayment of bank guarantee amount of Rs. 87,45,300/-. Thereupon the competent authority, vide letter dated 12.04.2017, has approved constitution of Committee comprising of R.O., Jaipur, PD-PIU Jaipur, GM (T), DGM and Independent Engineer as invitee to settle the issue of release of performance security. 8. It is argued that instead of seeking appointment of an Arbitrator, the petitioner should first approach the said Settlement Committee to avoid unnecessary litigation/claims. As per own documents of the petitioner i.e. completion letter dated 12.01.2015, completion of the work was certified by the Aarvee Associates, an independent Arbitrator, which was not accepted by the respondent. 8. It is argued that instead of seeking appointment of an Arbitrator, the petitioner should first approach the said Settlement Committee to avoid unnecessary litigation/claims. As per own documents of the petitioner i.e. completion letter dated 12.01.2015, completion of the work was certified by the Aarvee Associates, an independent Arbitrator, which was not accepted by the respondent. Since the independent Engineer-Aarvee Associates is not party to the application, the present application is not maintainable. It is therefore prayed that filing of the present application is premature and is liable to be dismissed. 9. I have given my anxious consideration to rival submissions and perused the material on record. 10. Indisputably there is an arbitration clause in Conditions of the Contract, being Clause 25.3, which is part of the agreement between the parties. Clause 25.3 provides that in case of any dispute or difference arising between the employer and a domestic contractor relating to any matter arising out of or connected with this agreement, such disputes or difference shall be settled in accordance with the Arbitration and Conciliation Act, 1996. The aforesaid clause further provides that parties shall make efforts to agree on a sole arbitrator and only if such an attempt does not succeed and the Arbitral Tribunal consisting of three arbitrators one each to be appointed by the Employer and the Contractor and the third Arbitrator to be chosen by the two Arbitrators so appointed by the parties, to act as Presiding Arbitrator, shall be considered. 11. In the present case, despite service of notice by the petitioner on the respondents invoking arbitration clause to initiate arbitration proceedings and suggesting name of the Arbitrator, the respondents failed to agree with the same inasmuch as the respondents did not suggest any alternative name. Once it is shown that the respondents failed to agree with name for appointment of Arbitrator despite service of the notice by the petitioner or appoint any other Arbitrator, within thirty days as per the procedure so provided, their right to now appoint the Arbitrator stand forfeited. Mere constitution of the Settlement Committee cannot be an impediment for appointment of an independent Arbitrator. 12. Present application therefore deserves to succeed and is accordingly allowed. Hon'ble Mr. Justice Prashant Kumar Agarwal (Retd.), R/o C-62, Ram Nagar, Shastri Nagar, Jaipur (Telephone No. 01412304719) is hereby appointed as an independent arbitrator to resolve the disputes between the parties. Mere constitution of the Settlement Committee cannot be an impediment for appointment of an independent Arbitrator. 12. Present application therefore deserves to succeed and is accordingly allowed. Hon'ble Mr. Justice Prashant Kumar Agarwal (Retd.), R/o C-62, Ram Nagar, Shastri Nagar, Jaipur (Telephone No. 01412304719) is hereby appointed as an independent arbitrator to resolve the disputes between the parties. The cost of arbitration proceedings and the arbitration fees shall be as per the Manual of Procedure for Alternative Dispute Resolution, 2009, of this Court, as amended from time to time. 13. A copy of this order be sent to Hon'ble Mr. Justice Prashant Kumar Agarwal (Retd.), R/o C-62, Ram Nagar, Shastri Nagar, Jaipur, Jaipur.