JUDGMENT : This is an application filed under Section 11 read with Section 12 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’ for short), praying for appointment of an independent Arbitrator to resolve the dispute between the petitioner and the respondents. 2. The petitioner is a proprietorship firm and Shri Gurnam Singh is its sole proprietor. The respondent with an intent to construct Sacred Heart Senior Secondary school, Junior Wing, Garden Villa, at Dalhousie, entered into an agreement with the petitioner on 6.4.2017. As per the terms and conditions of the agreement, the construction was to be raised strictly in accordance with the drawings and specifications to be provided by the respondent and has been elaborated in the schedule of the agreement. However, according to the petitioner, it was required to start the construction only after receipt of the drawings and specifications duly approved by the respondent which were provided by the respondent after a delay of about five months on 7.9.2017. The construction work was to be completed on or before 7.9.2018, failing which, the respondent had the right to impose the penalty of Rs.1500/per day. According to the agreement, two separate buildings were required to be constructed, i.e., construction of one M.S. shed and another Garden Villa, school building. When the construction of the M.S. shed was at the final stage, its area was ordered to be extended from approximately 16250 sq. feet to more than 18000 sq. feet. Besides this extension, many other additions and alterations were ordered to be made to the shed, e.g, construction of new steps after dismantling the old steps for sitting arrangement and three staircases. According to the petitioner it had completed the construction within the stipulated time frame. However, the respondent made the payments quite belatedly and, that too, in parts inasmuch as no payment against the dismantling of old steps, construction of new steps and for construction of staircases was made. However, for the alteration of the work, the petitioner had to divert his major resources, manpower and machinery for the construction of the shed, which has caused delay in the construction of Garden Villa School building. As per the agreement between the parties, the electricity and water was to be supplied uninterruptedly by the respondent. However, for the alteration of the work, the petitioner had to divert his major resources, manpower and machinery for the construction of the shed, which has caused delay in the construction of Garden Villa School building. As per the agreement between the parties, the electricity and water was to be supplied uninterruptedly by the respondent. The electricity remained disconnected for a considerable long time for which no efforts were made by the respondent to get the same resumed. The petitioner had to incur additional costs for that on its own level. This has resulted in delay in construction and missing the deadline for the constriction owing to which the petitioner could not complete the work on 7.9.2018 and requested the respondent to extend the time period upto 31.10.2018. However, respondent agreed to extend the time only upto 15.10.2018. Even the respondent ordered various additions, alterations and modifications for the construction of Garden Villa, the respondent was required to make the payment approximately Rs.2,67,30,000/- however, the total payment made by the respondent till date against the said construction is only approximately Rs.2,27,70,000/. No payment for additions, alternations and modifications has been made. 3. According to the petitioner, the respondent was obliged to pay 25% of the construction amount, being approximately Rs.83,23,000/in advance as mobilization amount. However, the respondent paid only sum of Rs.60,00,000/- as mobilization advance and, that too, in many installments. According to Clause 19 of the agreement, window of 57 days against the running /final bills is provided, however, all the payments were made beyond 7 days. The petitioner in the month of November, 2018 served a legal notice for seeking the appointment of arbitrator for resolution of dispute. However, despite due service no reply was sent by the respondent. The respondent also issued legal notice dated 10.11.2018 claiming that the petitioner has not completed the construction work within the stipulated time and that the construction should be resumed on or before 14.11.2018, failing which the agreement would be terminated. The petitioner thereafter served another legal notice dated 19.11.2018 whereby the agreement dated 6.4.2017 was arbitrarily terminated unilaterally and the security deposited with the respondent at the time of agreement was forfeited. The respondent further refused to make the balance payment. On the contrary, respondent served letter dated 26.2.2019, showing an amount of Rs.10,73,015/- as recoverable from the petitioner. The petitioner thereafter served another legal notice dated 19.11.2018 whereby the agreement dated 6.4.2017 was arbitrarily terminated unilaterally and the security deposited with the respondent at the time of agreement was forfeited. The respondent further refused to make the balance payment. On the contrary, respondent served letter dated 26.2.2019, showing an amount of Rs.10,73,015/- as recoverable from the petitioner. As per Clause 23 of the agreement, respondent was required to refer the dispute for arbitration before termination of the contract. The respondent requested several times to the respondent to appoint some arbitrator so that dispute could be resolved amicably but of no avail, hence this application. 4. The respondent has contested the present application by filing reply alleging that the petitioner has already agreed for appointment of Engineer Naresh Mahajan as an Arbitrator in view of the Arbitration Clause and parties have also participated in the arbitration proceedings before the arbitrator which were held on 1.11.2018 and 23.12.2018. Earlier efforts were made to settle the dispute by mutual negotiations on 25.7.2018 and 9.9.2018. Since the petitioner has participated in the arbitral proceedings, it has waived off his right to object to such an appointment in terms of Section 4 of the Act. It is contended that the petitioner was duly informed by communication dated 12.11.2018 that Engineer Naresh Mahajan has already taken charge of arbitration proceedings and petitioner and his agent have already participated in the proceedings. As per the agreed procedure, the arbitrator in the presence of petitioner and his agent has carried out all the measurements to which the petitioner never objected. Parties agreed to appear before the arbitrator and tried to resolve the dispute amicably. 6.1.2018 was fixed as the date of final measurement of the building but the petitioner did not turn up on the spot on that day. Parties have thus already acted upon the arbitration proceedings in view of the promise made by the respondent before Arbitrator and immediately made a payment of Rs.35,94,500/alongwith GST amount of Rs.6,47,010 on 9.9.2018. Another agreement was entered into between the parties as per mutual consent on 10.11.2018. The delay in completion of the work was due to erroneous acts of the petitioner as he has failed to make the payment of wages to labour, hence the issue was taken up to labour inspector for conciliation by labourer. The petitioner carried out the work at snail speed. The delay in completion of the work was due to erroneous acts of the petitioner as he has failed to make the payment of wages to labour, hence the issue was taken up to labour inspector for conciliation by labourer. The petitioner carried out the work at snail speed. The respondent kept the schedule of payment as per Clause 18 of the agreement. Bills submitted by the petitioner were found incorrect. It is further submitted that except the expected area of Garden Villa was 6600 sq. ft. per floor whereas on actual measurement conducted on 23.12.2018, the same was found to be 6475 sq.ft. per floor. It is submitted that payments were made strictly in accordance with Clause 18 of the agreement. The bill of Rs.19,80,000/, i.e., 25% of the ground floor work was paid to the petitioner as per the claimed bill dated 6.4.2017. Thereafter the petitioner paid another payment of Rs.20 lacs on 28.9.2017. Since, Engineer Naresh Mahajan has already been appointed as an arbitrator, the present application is liable to be dismissed. 5. The petitioner has filed rejoinder to the reply on 4.10.2019. Denying the assertion of the respondent that Engineer Naresh Mahajan was jointly appointed by the parties, it is asserted that the petitioner never agreed and consented for appointment of Engineer Naresh Mahajan as an arbitrator. In fact, Engineer Naresh Mahajan was acting merely a conciliator however, he never initiated any arbitration proceedings. He only tried to resolve the dispute between the parties through conciliation but his efforts could not yield any result due to adamant behaviour of the respondent. It is submitted that the petitioner never received letter dated 12.11.2018 conveying about the appointment of Engineer Naresh Mahajan. In fact, this document has been subsequently created in order to justify their unlawful acts which is evident from the fact that the respondent has not annexed dispatch proof along with the notice which clearly proves that the notice was never dispatched. It is denied that arbitration proceedings have ever commenced. The petitioner further submitted that there is no mandate in favour of Engineer Naresh Mahajan because the petitioner never consented for his appointment. The respondent has taken contradictory stand. On one hand the respondent is claiming the benefit of Section 4 of the Act and on the other hand, it is being alleged that petitioner never consented to the appointment of arbitrator. 6. The respondent has taken contradictory stand. On one hand the respondent is claiming the benefit of Section 4 of the Act and on the other hand, it is being alleged that petitioner never consented to the appointment of arbitrator. 6. Shri Jagmohan Singh Chandel, learned counsel for the petitioner has argued that since the petitioner never agreed for appointment of Engineer Naresh Mahajan as sole arbitrator, there is no question of arbitration proceedings having commenced. He acted only a conciliator and as a conciliator he made efforts to conciliate the dispute between the parties but the same could yield any result much less any positive result. It is argued that even otherwise, respondent could not have unilaterally appointed the sole arbitrator without consent of the petitioner. Reliance in support of this argument is placed on Perkins Eastman Architects DPC vs. HSCC (India) Pvt. Ltd. 2019 SCC OnLine SC 1517. It is argued that the petitioner has categorically denied the assertion for appointment of Engineer Naresh Mahajan as the sole arbitrator. There is no rebuttal by the respondent in the reply. Therefore, a prayer has been made to appoint a sole arbitrator to resolve the dispute between the parties. 7. Mr. Anup Rattan, learned counsel for the respondent submitted that not only arbitrator was appointed but he has conducted the proceedings on 1.11.2018 and 23.12.2018. The petitioner also participated in the proceedings. Therefore, in view of Section 4 of the Act, the petitioner having once participated in the proceedings, the same would amount to waiving off his right to object to the appointment of the arbitrator which was made as per Clause 23 of the Agreement. Learned counsel for the respondent in support of his argument relied on the judgment of the Supreme Court in Quippo Construction Equitment Ltd. vs. Janardan Nirman Pvt. Ltd reported in AIR 2020 SC 2038 . 8. I have given my anxious consideration to the rival submission and have gone through the entire material on record. 9. Learned counsel for the respondent in support of his argument relied on the judgment of the Supreme Court in Quippo Construction Equitment Ltd. vs. Janardan Nirman Pvt. Ltd reported in AIR 2020 SC 2038 . 8. I have given my anxious consideration to the rival submission and have gone through the entire material on record. 9. Having taken note of the submission made by the learned counsel for both sides in extenso, it is deemed appropriate to reproduce Clause 23 of the agreement between the parties, containing arbitration Clause, which reads as under:“ In case of any dispute or if any difference arises between the parties during the progress of or after construction or abandonment of the work as to the meaning of construction of this contract or touching or relating either to the said building or works, or to any other matter or thing arising directly or indirectly under this contract, than and in such an event the same shall be referred to Arbitration and the final decision of single arbitrator to be mutually agreed between the parties who alone shall consider determine the same and whose certificate or award shall be binding and shall be conclusive upon both the said parties otherwise two arbitrators one to be appointed by each party will act as umpires, at the commencement of proceedings and this clause shall be deemed as submissions within the meaning of Arbitration Act or Statutory modification or reenactment In the event of any dispute arising or differences between the parties relating to or in connection with this agreement or any aspect of it, the same shall first be tried to resolve within a period of fifteen days from the date of dispute and is first brought to the notice of other party for such an amicable resolution, or the same shall be referred to mutually acceptable arbitrator whose award shall be final binding on both the parties. The arbitrator shall give a reasoned award. The venue of arbitration shall be decided by the owner. The cost of arbitration shall be shared equally be both the parties." 10. The arbitrator shall give a reasoned award. The venue of arbitration shall be decided by the owner. The cost of arbitration shall be shared equally be both the parties." 10. Respondent in reply to the application has alleged that Engineer Naresh Mahajan was already appointed as an arbitrator and that he has conducted arbitration proceedings on 1.11.2018, 23.12.2018 and the petitioner has also attended such proceedings but despite query of the Court, the learned counsel for the respondent could not show any such proceedings inasmuch as no proof in whatever form showing that the petitioner ever consented to the appointment of Engineer Naresh Mahajan, has been produced. Respondent has asserted that this information was sent to the petitioner vide communication dated 12.10.2020 but petitioner categorically denied that it ever consented to the appointment of Engineer Naresh Mahajan as the sole arbitrator and also denied having received any communication such as dated 12.11.2018. The petitioner has also simultaneously alleged that this document has been created by the respondent and it was never received by the petitioner. The respondent has not produced any proof of despatch or receipt alongwith the alleged notice. In fact, the petitioner has also alleged in the rejoinder that Engineer Naresh Mahajan was only a conciliator and that he held one meeting with the petitioner to conciliate the dispute but despite his efforts, no conciliation could take place. The rejoinder was filed as far as back on 4.10.2019 but no rebuttal has been filed by the respondent till date. The learned counsel for the respondent for that purpose prayed for time to further prepare the matter and file further affidavit. As per Section 11 (13) of the Act now arbitration is required to be decided within 30 days. Curiously, the present application has been filed as far as back on 2.4.2019 and a period of three years have elapsed since the filing of the application, there is no justification for granting any further adjournment. 11. In Indian Oil Corpn. As per Section 11 (13) of the Act now arbitration is required to be decided within 30 days. Curiously, the present application has been filed as far as back on 2.4.2019 and a period of three years have elapsed since the filing of the application, there is no justification for granting any further adjournment. 11. In Indian Oil Corpn. Ltd. vs. Raja Transport (P) Ltd. (2009) 8 SCC 520 , in para 48, it was held that if circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else. The Supreme Court in Voestapline Schienen GMBH vs. Delhi Metro Rail Corporation Ltd., (2017) 4 SCC 665 in which it was held that an independence and impartiality of the arbitrator are the hall marks of the arbitration proceedings. Rule against bias is one of the fundamental principle of natural justice which applied to all judicial and quasi judicial proceedings. After all, the arbitrator has adjudicatory role to perform and, therefore, he must be independent to parties as well as impartial. The Supreme Court in Walter Bau Legal Successor of Original Contractor Dycker Hoff & Widmann AG vs. Municipal Corporation of Greater Mumbai & another, (2015) 3 SCC 800 held that unless the appointment of an arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11 (6) of the Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11 (6) of the Act cannot be countenanced. 12. The Delhi High Court in City Lifeline Travels Private Ltd. vs. Delhi Jal Board Arb. P. 4 of 2021 dated 27.1.2021 reported in 2021 Law Suit(Del) 66, was dealing with a case wherein respondent Delhi Jal Board issued a Request for Proposal inviting competitive tenders from agencies for operating Stainless Steel (SS) Water Tanker Services on hire basis for the purposes of supplying water through vehicle mounted water tankers in order to facilitate supply of potable drinking water to different areas in Delhi. Such services were to be provided in five different Zones on identical terms. The petitioner submitted its bid pursuant to the RFP. Such services were to be provided in five different Zones on identical terms. The petitioner submitted its bid pursuant to the RFP. After negotiations, offer made by the petitioner was accepted and the DJB issued a Letter of Intent (LoI) dated 16.07.2012. Thereafter, the DJB issued a Work Order under the cover of its letter dated 21.08.2012 and on 27.08.2012, the parties entered into a formal agreement with respect to performance of the work. The petitioner claimed that it has been diligently performing the contract, however, the DJB has failed to make payments of the invoices raised by the petitioner. The petitioner also claimed that it had issued a notice calling upon the DJB to release the payments outstanding for the months of August, September and October, 2020 and had also made representations in this regard, however, the DJB failed to address the issues raised by it. In view of the disputes that arose between the parties, the petitioner issued a notice dated 20.11.2012 invoking the Arbitration Agreement as set out in Clause 8.1.2 of the Contract. It also suggested the name of a former Chief Justice of Delhi High Court for being appointed as an Arbitrator. The DJB proposed names of two persons, one being a former Chief Justice of the Patna High Court and the other being a former Judge of Delhi High Court to be appointed as Arbitrators. However, the same were not acceptable to the petitioner. In those facts, the petitioner had approached the Delhi High Court by filing Application under Section 11 (6) of the Act. The petitioner relied on the judgment of the Supreme Court in Perkin Eastman and argued that respondent could not unilaterally appoint the sole arbitrator. The stand of the respondent before the Delhi High court was that they maintain a panel of arbitrator for the purpose and arbitrator has to be appointed from such panel. The Delhi High Court observed that the maintenance of such panel of arbitrator was only an internal functioning of the Delhi Jal Board and directed the appointment of an independent arbitrator. 13. A three judge bench of the Supreme Court in Union of India vs. M/s Tantia Constructions Limited: SLP (C) 12670/2020 decided on 11.01.2021, upheld the decision of the High Court to appoint an independent Arbitrator and had dismissed the Special Leave Petition. 13. A three judge bench of the Supreme Court in Union of India vs. M/s Tantia Constructions Limited: SLP (C) 12670/2020 decided on 11.01.2021, upheld the decision of the High Court to appoint an independent Arbitrator and had dismissed the Special Leave Petition. However, since reliance was placed by the petitioner on the decision in Central Organization for Railway Electrification vs. ECI (supra), the Supreme Court requested the Chief Justice of India to constitute a larger Bench to look into the correctness of the said decision. But in any case, the judgment of Central Organization for Railways was held by the Delhi High Court to be distinguishable on facts. 14. In M.K. Jain and others vs. Angle Infrastructure Pvt Ltd OMP (T) (COMM.) 86/2020 & I.A. 12304/2020 dated 21.1.2021, there was somewhat similar arbitration clause between the parties which provided that if difference could not be resolved within 10 days of the notice then the dispute shall be referred to the arbitration. The dispute arose out of a Memorandum of Understanding (MOU) dated 16.8.2018 executed between the petitioners and the respondent. Under the said MOU, the petitioners invested Rs.8,38,91,000/ in the respondent company. As security against the said investment, the respondent allotted nine apartments to the petitioners in its Florence Estate Project Additionally, two apartments were allotted to the petitioners by M/s Venta Realtech Private Limited, as the confirming party to the agreement. The petitioners alleged that there was default, on the part of the respondent in fulfilling the obligations under the MOU, whereupon the petitioners sought to invoke the aforesaid security. At this stage, it is alleged that the petitioners came to learn that the security interest created by the respondent on the aforesaid nine apartments was illegal and void, as the respondent was bound to allot the said apartments only to Central Government employees. The petitioner, therefore, terminated the MOU and claimed refund of the invested amount. The respondent vide reply dated 6.9.2019 denied the allegation levelled by the petitioners and sought reference of the dispute that had thus arisen between the parties by unilaterally suggesting the name of two arbitrators. Since respondents failed to receive any response from the petitioner therefore, on 19.11.2019, respondent went ahead and proceeded to appoint a learned retied Judge of the Delhi High Court as the sole arbitrator to arbitrate on the disputes. Since respondents failed to receive any response from the petitioner therefore, on 19.11.2019, respondent went ahead and proceeded to appoint a learned retied Judge of the Delhi High Court as the sole arbitrator to arbitrate on the disputes. The Delhi High Court held that it was proceeding on the basis of statutory provisions and the law laid down by the Supreme Court in that regard and did not, in any manner, want to reflect on the impartiality or integrity of the learned arbitrator, who is respected retired Judge of the Delhi High Court. The Delhi High Court placed reliance on the Judgment of Perkins Eastman’s case supra, while holding that the unilateral appointment of the arbitrator by the respondent to be unsustainable and appointed another retired Judge of that High Court to act as an arbitrator. The judgments cited by the learned counsel for the respondents are distinguishable on facts. 15. In view of above discussion, the present application is allowed and Hon’ble Mr. Justice K.C. Sood, Judge of this Court (Retd.) R/o Kingsley Estate, Sanjauli Shimla 171 006, is appointed as Arbitrator who shall enter into reference, and shall pass an award in accordance with law. 16. Copy of this order be forwarded to the learned counsel for the parties, as also to the Arbitrator. The Arbitrator so appointed shall be entitled to fee as per stipulation contained in 4th schedule appended to the Arbitration and Conciliation Act, 1996. 17. The arbitration case is disposed of accordingly.