ORDER : 1. The Petitioner is before this Court seeking for the following reliefs : A. To appoint the Arbitrator as contemplated under the clause 4.1 of the contract agreement dated 28.03.2018, to adjudicate the dispute between the Petitioner and Respondents in the interest of justice. B. Any other orders may kindly be passed that the Hon’ble Court deems fit in the interest of justice. 2. The Petitioner a Private Limited Company, being a startup enterprise engaged in the business of infrastructure, had participated in the tender floated by the Respondents and thereafter entered into a contract with the Respondent on being declared as the successful bidder. 3. The dispute between the Petitioner and the Respondents is that the Petitioner having been declared successful bidder, a letter of intent having been issued and a contract entered into on 28/03/2018, within a period of fewer than two months on 18/05/2018, the Respondents had issued a notice cancelling the contract unilaterally. 4. The Petitioner earlier had approached this Court in writ petition No.114450/2019, which came to be allowed and the Petitioner was permitted to execute the contract. Thereafter the Petitioner made a representation to the Respondents on 27/05/2021 requesting permission to execute the contract. 5. However, the Respondents had, on 16/06/2021, called upon the Petitioner to show cause why the contract in question and all the subsequent action taken under the said contract should not be terminated, on account of the alleged defaults of conditions by the Petitioner. The Petitioner replied to the same on 30/06/2021,but without considering the said reply, Respondent No.2 is stated to have passed an order of termination of the contract on 15/07/2021. 6. It is in this context that the disputes have arisen and as such the Petitioner issued a notice on 17/11/2021 calling upon the Respondent to make good the damages suffered by them and called upon the Respondents to make payment of the same. No response was received for the said notice, despite Respondent No.1 having received the notice. Respondent No.2 had however refused to accept the notice and the same was returned to the sender. 7. No response was received for the said notice, despite Respondent No.1 having received the notice. Respondent No.2 had however refused to accept the notice and the same was returned to the sender. 7. Hence the Petitioner caused another notice dated 29/11/2021, this time invoking the arbitration clause and nominating an arbitrator on behalf of the Petitioner and seeking concurrence within a period of 30 days, failing which the Petitioner would approach this Court under Section 11 of the Arbitration and Conciliation Act, 1996(hereinafter referred to as ‘A & C Act’, for brevity). 8. The Respondent has replied to the same on 03/02/2022, contending that, in terms of Clause 38 of the General Conditions of Contract (‘GCC’ for short), there is an agreed methodology of resolution of the disputes and it is this methodology which is required to be adopted and since the Petitioner has not gone through the entire methodology, the appointment of an Arbitrator would not arise and as such, rejected the request of the Petitioner. It is in that background that the Petitioner is before this court. 9. Sri. S.S. Beturmath, learned counsel for the Petitioner submitted that : 9.1. the entire object of the Respondents has been to protract the claim of the Petitioner. 9.2. Within two months of the agreement being entered into, the agreement was terminated, even though the Petitioner was the successful bidder and LOI was issued and the contract executed. 9.3. The contract drafted by the Respondent is completely one-sided. 9.4. The Petitioner has been made to run from pillar to post for the commencement of arbitration, let alone resolution of disputes. 9.5. The conduct of the Respondent does not inspire confidence and as such there is no purpose which would be served by going through the procedural requirements of GCC Clause No.38, which would only be a waste of time and as such, the Petitioner and the Respondents should be sent to arbitration at the earliest without any delay. 10. Per contra, learned counsel for the Respondents submits that : 10.1. There is a contract which has been executed and as such the parties are required to act in accordance thereto. 10.2. The arbitration clause in terms of Clause 4.1 specifically refers to the General Condition Of Contract (GCC) and therefore the parties are required to act in terms thereof. 10.3. There is a contract which has been executed and as such the parties are required to act in accordance thereto. 10.2. The arbitration clause in terms of Clause 4.1 specifically refers to the General Condition Of Contract (GCC) and therefore the parties are required to act in terms thereof. 10.3. If the agreed procedure is not followed, the Petitioner was disentitled to approach this Court seeking for appointment of an arbitrator. 11. Heard Sri. S.S. Beturmath, learned counsel for the Petitioner, Sri. B.S. Kamate, learned counsel for the Respondents and perused the records. 12. The issue that requires to be determined in this matter is “Whether one of the parties to the contract can delay the appointment of an Arbitrator on the ground that the dispute resolution clause provides for a multi-layered methodology which needs to be gone through before invocation of the Arbitration clause?” 13. Clause 4.1 being the arbitration clause is reproduced hereunder for easy reference: 4.1 It is specifically agreed by and between the parties that all the differences or disputes arising out of the Agreement or touching the subject matter of the Agreement, shall be decided by process of settlement & Arbitration as specified in the contract and General Conditions of the Contract and the provisions of the Indian Arbitration Act, 1940 shall apply and Hubli courts alone shall have exclusive jurisdiction over the same. 14. Clause 38 of GCC provides for the process of settlement and is reproduced hereunder for easy reference : 38.1 If any dispute of any kind whatsoever shall arise between the Employer and the Contractor in connection with or arising out of the Contract, including without prejudice to the generality of the foregoing, any question regarding its existence, validity or termination, or the execution of the Facilities, whether during the progress of the Facilities or after their completion and whether before or after the termination, abandonment or breach of the Contract, the parties shall seek to resolve any such dispute or difference, to the extent possible, amicably by mutual consultation. 38.2 If the parties fail to resolve such a dispute or difference by mutual consultation at the execution site level, then the dispute shall be referred by the Contractor to the Project Manager, who, within a period of thirty (30) days after being requested by Contractor to do so, shall give written notice of his decision. 38.2 If the parties fail to resolve such a dispute or difference by mutual consultation at the execution site level, then the dispute shall be referred by the Contractor to the Project Manager, who, within a period of thirty (30) days after being requested by Contractor to do so, shall give written notice of his decision. 38.2.1 The decision/instruction of the Project Manager shall be deemed to have been accepted by the Contractor unless notified by the Contractor of his intention to refer the matter for Arbitration within thirty (30) days of such decision/instruction. 38.2.2 In the event the Project Manager fails to notify his decision as aforesaid within One Hundred and Eighty (180) days, the Contractor, if he intends to go for Arbitration, shall notify his intention to the Project Manager within 30 days of expiry of the first mentioned period of thirty days failing which it shall be deemed that there are no dispute or difference between the Employer and the Contractor. 38.3 In case of dispute or difference between the Employer and the Contractor, if the Employer intends to go for Arbitration, he shall notify such intention to the Contractor. 15. It is clear that the contract and GCC was one which was drafted by the Respondents, more so the GCC. It is further clear that the clauses in the GCC were not a result of any negotiations, in as much as the GCC was a part of the Notice Inviting Tender and had come into being even before the Petitioner submitted its bid. 16. The contract was entered into on 28.03.2018, by the time the said contract was executed, the Arbitration and Conciliation Act,1996 was in force. Therefore it is rather shocking that clause 4.1 refers to Indian Arbitration Act 1940. This categorically shows how the said agreement has been drafted and how the said agreement is a onesided agreement resorted to by the Respondents, which was required to be signed by the Petitioners without any negotiation, there apparently is no application of mind to the said clause by the Respondents also. The clause is therefore a result of the Petitioner being unable to negotiate the clause and there being complete non-application of mind by the author of the document namely the Respondents. 17. The clause is therefore a result of the Petitioner being unable to negotiate the clause and there being complete non-application of mind by the author of the document namely the Respondents. 17. GCC Clause No.38 which deals with the settlement of disputes, in my considered opinion, is as circuitous as a dispute resolution clause can be, it is only on requirements of GCC Clause No. 38 being complied with that the petitioner can resort to the invocation of the arbitration clause in GCC Clause No. 39. 18. A perusal of the extracted GCC clause No. 38 indicates that, if the dispute were to be raised by the contractor. 18.1. whenever and whatsoever a dispute that may arise between the employer and contractor, the same shall be resolved to the extent possible amicably by mutual consultation (GCC Clause No. 38.1). 18.2. If the parties were to fail to resolve the said dispute or difference by mutual consultation at the execution site level, then the dispute shall be referred by the Contractor to the Project Manager, who within a period of 30 days after being requested by the Contractor, shall give a written notice of his decision (GCC Clause No.38.2). 18.3. The said decision of the Project Manager is deemed to have been accepted by the Contractor unless the contractor has notified his intention to refer the matter to the Arbitrator within 30 days (GCC Clause No. 38.2.1). 18.4. In the event of the Project Manager failing to notify his decision within 180 days, if the Contractor intends to go for arbitration, he has to notify the Project Manager within 30 days of the expiry of the said period. If not done so, it is deemed that there is no dispute or difference between the employer or contractor. (GCC Clause No. 38.2.2). 19. If the dispute were to be raised by the employer and/or in the event of the employer intending to go for arbitration, he shall notify such intention to the contractor (GCC Clause No. 38.3). 20. From the above, it is clear that, there are two different methodologies provided for invoking of the arbitration clause, the methodology for the contractor is different from that provided for the employer. 21. 20. From the above, it is clear that, there are two different methodologies provided for invoking of the arbitration clause, the methodology for the contractor is different from that provided for the employer. 21. If the Contractor has to seek for invoking of arbitration, firstly the dispute is required to be settled amicably if not he has to approach the Project Manager, who was given 30 days time to make his decision on the dispute. It is not known whether the said decision is adjudicatory in nature or not. 22. If the Project Manager were not to notify the decision for a period of 180 days, then the Contractor would get the right to refer the matter to Arbitration, which has to be done within 30 days, if not the contractor losses the right to do so. 23. Thus, at least for a period of 180 days the Contractor is left remediless and cannot approach the arbitrator. 24. However, in terms of GCC clause No. 38.3, if the employer i.e., the Respondent intends to go for arbitration, he is only required to notify the contractor and thus, there is no requirement for the employer to go through the requirement of clauses 38.1, 38.2, 38.2.1 and 38.2.2. 25. There can therefore be no doubt that the said GCC is a completely one-sided and unilateral agreement prepared by the Respondents with the sole intention of denying the contractor any remedy since unless this procedure is followed, the contractor cannot approach any forum seeking any relief. If the logic is extended, the contractor will not even be able to approach the Section 9 court until the matter is ripe for the contractor to invoke the arbitration clause, which can only be after following the procedure under GCC clause 38. 26. Section 18 of the A & C Act reads as under : 18. Equal treatment of parties.—The parties shall be treated with equality and each party shall be given a full opportunity to present his case”. 27. In terms of Section 18 of the A & C Act, whenever there is any arbitration proceedings, which is initiated, all the parties are required to be treated with equality. In my considered opinion, this equality is not only during the course of arbitration but even prior to the arbitration. 27. In terms of Section 18 of the A & C Act, whenever there is any arbitration proceedings, which is initiated, all the parties are required to be treated with equality. In my considered opinion, this equality is not only during the course of arbitration but even prior to the arbitration. The one-sided clause relating to the dispute resolution is in violation of the equality provision inasmuch as if the contractor were to be required to invoke the arbitration clause, a series of steps are required to be followed by the contractor while the employer can straight away invoke the arbitration clause. 28. Said GCC clause 39 is reproduced hereunder for easy reference : 39. Arbitration 39.1 All disputes or differences in respect of which the decision, if any, of the Project Manager and/or the Head of the Implementing Authority has not become final or binding as aforesaid shall be settled by arbitration in the manner provided herein below: 39.2 The arbitration shall be conducted by three arbitrators, one each to be nominated by the Contractor and the Employer and the third to be appointed by both the arbitrators in accordance with the Indian Arbitration Act. If either of the parties fails to appoint its arbitrator within sixty (60) days after receipt of a notice from the other party invoking the Arbitration clause, the arbitrator appointed by the party invoking the arbitration clause shall become the sole arbitrator to conduct the arbitration. 39.3 The language of the arbitration proceedings and that of the documents and communications between the parties shall be English. The arbitration shall be conducted in accordance with the provisions of the Indian Arbitration and Conciliation Act, 1996 or any statutory modification thereof. The venue of arbitration shall be the state capital. 39.4 The decision of the majority of the arbitrators shall be final and binding upon the parties. In the event any of the aforesaid arbitrators dying, neglecting, resigning or being unable to act for any reason, it will be lawful for the party concerned to nominate another arbitrator in place of the outgoing arbitrator. 39.5 During settlement of disputes and arbitration proceedings, both parties shall be obliged to carry out their respective obligations under the Contract. 39.6 Deleted. 29. 39.5 During settlement of disputes and arbitration proceedings, both parties shall be obliged to carry out their respective obligations under the Contract. 39.6 Deleted. 29. It is only after the said procedure is followed that under GCC clause No. 39, the matter may be referred to arbitration conducted by three arbitrators, one each is to be nominated by the contractor and the employer and the third to be nominated by the arbitrator in accordance with Indian Arbitration Act, 1940. Again the reference made is to the Indian Arbitration Act, 1940 and not the Arbitration and Conciliation Act 1996, which establishes a lack of application of mind and or that a clause which had been drafted pre A& C Act coming to force is applied post the A & C Act coming into force. This can also be gathered by a further reference to 60 days for the other party to appoint its arbitrator when in terms of the A & C Act the time period provided is 30 days. 30. In the aforesaid circumstances, as also in the peculiar facts and circumstances of the case, where a contract is entered into between the Petitioner and Respondents has been terminated within less than 60 days of the execution thereof and despite this Court ordering the Respondents to permit the Petitioner to discharge his obligation, the same also not having been permitted and the Respondents not permitting the Petitioner to resort to arbitration and continuing to delay the same, I am of the considered opinion that the very purpose, intent and motive behind the introduction of the Arbitration and Conciliation Act, 1996 is lost. 31. The Statement of objects and reasons of the Arbitration and Conciliation Act, 1996 are reproduced hereunder for easy reference : The law on arbitration in India is at present substantially contained in three enactments, namely, the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961. It is widely felt that the 1940 Act, which contains the general law of arbitration, has become outdated. The Law Commission of India, several representative bodies of trade and industry and experts in the field of arbitration have proposed amendments to this Act to make it more responsive to contemporary requirements. It is widely felt that the 1940 Act, which contains the general law of arbitration, has become outdated. The Law Commission of India, several representative bodies of trade and industry and experts in the field of arbitration have proposed amendments to this Act to make it more responsive to contemporary requirements. It is also recognized that our economic reforms may not become fully effective if the law dealing with settlement of both domestic and international commercial disputes remains out of tune with such reforms. Like arbitration, conciliation is also getting increasing worldwide recognition as an instrument for settlement of disputes. There is, however, no general law on the subject in India. 2. The United Nations Commission of International Trade Law (UNCITRAL) adopted in 1985 the Model Law on International Commercial Arbitration. The General Assembly of the United Nations has recommended that all countries give due consideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice. The UNCITRAL also adopted in 1980 a set of Conciliation Rules. The General Assembly of the United Nations has recommended the use of these Rules in cases where the disputes arise in the context of international commercial relations and the parties seek amicable settlement of their disputes by recourse to conciliation. An important feature of the said UNCITRAL Model Law and Rules is that they have harmonized concepts on arbitration and conciliation of different legal systems of the world and thus contain provisions which are designed for universal application. 3. Though the said UNCITRAL Model Law and Rules are intended to deal with international commercial arbitration and conciliation, they could, with appropriate modifications, serve as a model for legislation on domestic arbitration and conciliation. The present Bill seeks to consolidate and amend the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign arbitral awards and to define the law relating to conciliation, taking into account the said UNCITRAL Model Law and Rules. 4. The main objectives of the Bill are as under:- i. to comprehensively cover international and commercial arbitration and conciliation as also domestic arbitration and conciliation; ii. to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration; iii. to provide that the arbitral tribunal gives reasons for its arbitral award; iv. to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration; iii. to provide that the arbitral tribunal gives reasons for its arbitral award; iv. to ensure that the arbitral tribunal remains within the limits of its jurisdiction; v. to minimize the supervisory role of courts in the arbitral process; vi. to permit an arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings to encourage settlement of disputes; vii. to provide that every final arbitral award is enforced in the same manner as if it were a decree of the court; viii. to provide that a settlement agreement reached by the parties as a result of conciliation proceedings will have the same status and effect as an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal; and ix. to provide that, for purposes of enforcement of foreign awards, every arbitral award made in a country to which one of the two international Conventions relating to foreign arbitral awards to which India is a party applies, will be treated as a foreign award. 5. The Bill seeks to achieve the above objects. 32. A perusal of the said Statement of objects and reason indicates that the arbitral procedure is to be fair and efficient and capable of meeting the needs of specific arbitration and to minimize the supervisory role of courts in arbitral proceedings. Thus, the Dispute Resolution Procedure is required to be in consonance with the object of the Act inasmuch as the arbitral procedure is required to be fair as also efficient. 33. In the present case, in my considered opinion for the reasons pointed out above, GCC Clause No. 38 and 39 are neither fair nor efficient inasmuch as the procedure prescribed for the employer is different from that of the contractor, there is wanton discrimination of the contractor vis-à-vis the employer. The employer occupies a superior position and having drafted the GCC including the dispute resolution clause, which includes the arbitration clause. The employer occupies a superior position and having drafted the GCC including the dispute resolution clause, which includes the arbitration clause. The clause is inefficient inasmuch as the contractor is made to go through a multi-layered delay mechanism to invoke the Arbitration Clause, thus delaying the very invocation thereof, thereby bringing about an inefficiency for the contractor to invoke and obtain necessary remedies, apart therefrom the dispute is left to simmer for such a long time, which is not in the interest of speedy resolution of disputes, making the mechanism inherently inefficient. 34. For all the aforesaid reasons I’am of the considered opinion that GCC Clause no. 38 and 39 being one-sided, the employer cannot delay the contractor in obtaining any relief. 35. The contention of the learned counsel for the Respondents is that Section 11 of the Act refers to and entitles the parties to agree on a procedure for appointing the arbitrator/arbitrators, the agreed procedure is in terms of GCC clause no. 38 and it is only after that procedure in GCC clause no. 38 is complied with, that under GCC clause no. 39 invocation of arbitration could be made by the contractor. 36. In my considered opinion, the procedure which is referred to in SubSection (2) of Section 11 of the Act, provides only the procedure for appointing the arbitrator/arbitrators and does not include the procedure prior to the appointment of an arbitrator. In my considered opinion, the aspect of raising an internal dispute by one of the parties for an amicable settlement, the decision of one of officers of the employer on the dispute is not that which is referred to under SubSection (2) of Section 11. 37. The very purpose of the A & C Act is to enable a party to invoke an arbitration clause at the earliest and for the arbitration to be completed at the earliest. This, intent and purport of the Act cannot be sought to be frustrated by any of the parties by requiring the other to follow a convoluted methodology, which would only delay the invocation of the arbitration clause and frustrate the remedy available to one of the parties. 38. The UNCITRAL model of arbitration was adopted in our country so as to enable speedy reference to arbitration and speedy arbitration. If the present GCC Clause no. 38. The UNCITRAL model of arbitration was adopted in our country so as to enable speedy reference to arbitration and speedy arbitration. If the present GCC Clause no. 38 is anything to go by, the same would frustrate the purport intent and requirement of the A & C Act, inasmuch as invoking of Arbitration clause itself is delayed by a period of at least 180 days, when any arbitration proceedings is required to be completed within one year of the filing of the claim petition. If there was no such clause as in GCC no. 38 or 39, the Petitioner herein who is the contractor could have approached the civil court on the very first day of the dispute, without waiting for any time. 39. The delay in arbitration proceedings is firstly, in the invocation of the arbitration clause secondly, in the appointment of an arbitrator and thirdly, in the arbitration proceedings. By way of several amendments, now there is a time limit prescribed for an arbitrator to dispose of arbitral proceedings viz., 12 months from the date on which the pleadings are complete. But in the present case, the invocation of the arbitration itself is delayed by at least 180 days, 40. The dispute having arisen on 18.05.2018, the Petitioner has approached this Court on 21.02.2022 and the appointment of an arbitrator has been pending till now. Furthermore, the dispute between the parties arose on 18.05.2018 and the contractor has been made to run from pillar to post without even as much as commencing the arbitral proceedings as regards which the main culprit is the GCC Clause No.38, which has led to the delay. 41. I am of the considered opinion that in all disputes governed by the arbitration clause it is but required that an arbitrator is appointed at the earliest and all aspects are left open to be decided by the arbitrator so appointed. 42. In view of the above, I do not find any merit in the submission made by the learned counsel for the Respondents, that the procedure under GCC Clause no. 38 is required to be completely followed for their invoking of Arbitration clause in GCC Clause no. 39. 43. 42. In view of the above, I do not find any merit in the submission made by the learned counsel for the Respondents, that the procedure under GCC Clause no. 38 is required to be completely followed for their invoking of Arbitration clause in GCC Clause no. 39. 43. Hence I answer the question raised by holding that one of the parties to the contract cannot delay the appointment of an Arbitrator on the ground that the dispute resolution clause provides for a multi-layered methodology which needs to be gone through before invocation of the Arbitration clause. 44. Assuming that such a convoluted multilayered dispute resolution clause is to be considered valid, I will now consider if the requirements of GCC Clause no. 38 has been followed or not in the present case. 45. Admittedly the contract was entered into on 28.03.2018, within a period of fewer than two months on 18.05.2018, the Respondents had issued a notice cancelling the contract unilaterally, it is to be noted that the dispute was not raised by the contractor but the termination of the contract was made by the employer by raising a dispute. 46. As noted above in pursuance of the order of this Court in writ petition No.114450/2019, Petitioner made a representation to the Respondents on 27.05.2021 requesting permission to execute the contract. However, the Respondents had, on 16.06.2021, called upon the Petitioner to show cause why the contract should not be terminated. The Petitioner replied to the same on 30.06.2021, Respondent No.2 is stated to have passed an order of termination of the contract on 15.07.2021. 47. The Petitioner issued a notice on 17.11.2021 calling upon the Respondent to make payment of the damages suffered. No response was received for the said notice. The Petitioner invoked the arbitration clause vide notice dated 29.11.2021. The Respondent replied to the same on 03.02.2022, contending that the requirement of GCC Clause no. 38 has not been followed and hence the notice is premature. 48. There is no denial of the existence of a dispute between the parties, the disputes as aforesaid raised by the respondent is that the present petition is premature in as much as the procedure under GCC Clause no. 38 has not been followed. 49. 38 has not been followed and hence the notice is premature. 48. There is no denial of the existence of a dispute between the parties, the disputes as aforesaid raised by the respondent is that the present petition is premature in as much as the procedure under GCC Clause no. 38 has not been followed. 49. As noted above it is the Respondent who terminated the contract, despite the orders of this court the Petitioner was not permitted to carry out the works despite giving a representation, hence the question of any amicable settlement talks taking place or otherwise would not arise. 50. Instead the respondent issued a show-cause notice which was replied to and the respondent issued the order of termination. Thus there is an order passed by the respondent which satisfies the requirements of GCC Clause no. 38.2, entitling the Petitioner to invoke the Arbitration clause. 51. Hence, I pass the following : ORDER i. Since the Petitioner has already appointed an Arbitrator vide notice dated 29.11.2021 and the Respondents have not come forward to appoint its arbitrator, I deem it fit to appoint Sri. A. P. Murari, retired District Judge, who is in the panel of the Arbitrators of this Court, as an Arbitrator on behalf of the Respondents. ii. The said Arbitrators shall together appoint the presiding Arbitrator and go on with the arbitration with an endeavor to complete the same at the earliest. iii. Registry to forward a copy of this order to Sri. A. P. Murari, retired District Judge, at the earliest. iv. The Arbitral tribunal once constituted would be free to fix its fees and calendar of events as per the A & C Act. v. The Petition is disposed of in terms of the above.