JUDGMENT : SUJIT NARAYAN PRASAD, J. 1. The instant application has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, praying therein to appoint Arbitrator as per Clause 26.3 of the EPC Agreement No. SHAJ/Procur/EPC/02-2015/16 dated 01.05.2015 entered in between the petitioner/applicant and the respondent as the dispute has arisen in between the parties due to breach of terms of contracts. 2. The brief facts of the case, as per the pleading made in the application, required to be enumerated, are as hereunder: The petitioner/applicant claims to be an infrastructure conglomerate having business interest in infrastructure development and allied activities, has been entered into an agreement being EPC Agreement No. SHAJ/Procur/EPC/02-2015/16 dated 01.05.2015 with the respondent for execution of the work. But, according to the petitioner/applicant, the respondent had caused enormous delay in releasing the mobilization advance in terms of Clause 19.2.5 of the contract agreement, whereby, the respondent was obligated to release the mobilization advance within 30 days from the receipt of such request. However, the mobilization amount was received only on 15th December, 2015, which was just prior to 6 days of the deadline for achieving the first milestone. Therefore, the delay in achieving the timelines by the petitioner/applicant was dependent on timely release of mobilization advance/payments by the respondent, strictly in terms of the schedule agreed under the contract agreement dated 1st May 2015, but the respondent failed to meet the same. It is the further case of the petitioner/applicant that the periodical report was highlighting the obstructions and hindrances which caused delay and interference in the discharge of the contractual obligations by the petitioner/applicant. The petitioner/applicant, in the backdrop of the aforesaid fact, has made communication to the respondent vide letter dated 02.03.2017, 11.03.2017, 25.03.2017 and 01.08.2017, by which, the petitioner/applicant has sought for extension of time, detailed out the hindrances which effected and delayed the works but the respondent failed to take any decision on the said letter. The petitioner/applicant, in the aforesaid fact, was having grievance against the respondent that due to the laches on the part of the respondent concerned, the work could not have been completed within the stipulated time, as agreed. The petitioner/applicant, in such circumstances, has issued notice of termination of contract agreement by invoking the condition stipulated under Clause 23.2.1 (A&E) of the contract referring therein the reason for termination. The petitioner/applicant, in such circumstances, has issued notice of termination of contract agreement by invoking the condition stipulated under Clause 23.2.1 (A&E) of the contract referring therein the reason for termination. The petitioner/applicant, thereafter, had issued a demand notice upon the respondent for the loss which was suffered by him and on account of fundamental breach of contract on 30.10.2017. The respondent instead of settling the claim of the petitioner/applicant, decided to terminate the contract vide notice dated 18.11.2017. The petitioner/applicant, thereafter, invoked the Arbitration Clause, as stipulated under Clause 26.3 of the EPC Agreement on 28.11.2017, wherein, the petitioner/applicant had proposed the name of Hon’ble Mrs. Justice Poonam Srivastava, (Retd). Former Judge of this Court, as Arbitrator on its part and made a request to the respondent to appoint the Arbitrator. The respondent has failed to appoint Arbitrator even after lapse of 30 days from the date of notice. The petitioner/applicant, thereafter, has moved before this Court by filing the Arbitration Application No. 04/2018, but, this Court has refused to entertain the same on the ground that the applicant had not exhausted the conciliation process, as contemplated under the agreement. The petitioner/applicant, thereafter, took recourse for conciliation. The respondent has nominated Mr. S.P. Singh as conciliator but the conciliation was failed and the petitioner/applicant again has invoked the Arbitration Clause and nominated Hon’ble Mrs. Justice Poonam Srivastava, as its dispute Arbitrator and sent the request to the respondent to nominate the dispute Arbitrator. The respondent has declined to nominate the dispute Arbitrator. In consequence thereof, the petitioner/applicant has again filed Arbitration Application being Arbitration Application No. 02 of 2019 invoking the Arbitration Clause. It is the grievance of the petitioner/applicant that the respondent authority with an intention only to decelerate the resolution of dispute, has filed counter affidavit seeking that stage 2 conciliation process is still not exhausted. The petitioner/applicant, however, has agreed to the 2nd stage of conciliation and took all efforts to resolve the dispute. But, at both the level of resolution of dispute through mediation were failed and thereafter, the petitioner/applicant has again sent a notice under Section 21 of the Arbitration and Conciliation Act, 1996 on 16.12.2019 requesting therein to appoint the Arbitrator. But, the respondent has declined to appoint the dispute Arbitrator, rather, they came up with their independent claim. But, at both the level of resolution of dispute through mediation were failed and thereafter, the petitioner/applicant has again sent a notice under Section 21 of the Arbitration and Conciliation Act, 1996 on 16.12.2019 requesting therein to appoint the Arbitrator. But, the respondent has declined to appoint the dispute Arbitrator, rather, they came up with their independent claim. The petitioner/applicant, in these circumstances, has filed the instant application for appointment of Arbitrator, in view of the Arbitration Clause as contained under Clause 26.1 and 26.2 of the EPC Agreement No. SHAJ/Procur/EPC/02-2015/16 dated 01.05.2015. 3. The respondent has filed counter-affidavit on 06.05.2022, wherein, inter-alia, it has been stated alleging against the petitioner/applicant holding him responsible for non-completion of the work within the stipulated time, as agreed in the contract. It has further been stated that the respondent has also a claim of loss due to the laches committed on the part of the petitioner of non-performance. It is the further stand of the respondent State Highway Authority of Jharkhand that the petitioner/applicant has already nominated Hon’ble Mrs. Justice Poonam Srivastava, (Retd.) as one of the Arbitrator but the respondent has not agreed upon the proposal of the petitioner/applicant for appointment of Hon’ble Mrs. Justice Poonam Srivastava, (Retd.) as one of the Arbitrator. However, submission has been made that there is no difficulty on the part of the respondent State Highway Authority, if any other, Hon’ble Judge will be appointed to act as Arbitrator for resolution of dispute. 4. This Court has heard the learned counsel for the parties and perused the pleading made in the affidavits as also the annexure appended therein. 5. The admitted fact herein is that the petitioner/applicant has entered into an agreement with the respondent State Highway Authority of Jharkhand vide EPC Agreement No. SHAJ/Procur/EPC/02-2015/16 dated 01.05.2015, in terms of Arbitration Clause as contained under Clause 26.3 of the Agreement, which reads as hereunder: 26.3 Arbitration 26.3.1 Any Dispute which is not resolved amicably by conciliation, as provided in Clause 26.2, shall be finally decided by reference to arbitration by a Board of Arbitrators appointed in accordance with Clause 26.3.2. Such arbitration shall be held in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi (the “Rules”) or such other rules as may be mutually agreed by the Parties, and shall be subject to the provisions of the Arbitration Act. Such arbitration shall be held in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi (the “Rules”) or such other rules as may be mutually agreed by the Parties, and shall be subject to the provisions of the Arbitration Act. The venue of such arbitration shall be Ranchi and the language of arbitration proceedings shall be English. 26.3.2 There shall be a Board of three arbitrators, of whom each Party shall select one, and the third arbitrator shall be appointed by the two arbitrators so selected and in the event of disagreement between the two arbitrators, the appointment shall be made in accordance with the Rules. 26.3.3 The arbitrators shall make a reasoned award (the “Award”). Any Award made in any arbitration held pursuant to this Article 26 shall be final and binding on the Parties as from the date it is made, and the Contractor and the Authority agree and undertake to carry out such Award without delay. 26.3.4 The Contractor and the Authority agree that an Award may be enforced against the Contractor and/or the Authority, as the case may be, and their respective assets wherever situated. 26.3.5 This Agreement and the rights and obligations of the Parties shall remain in full force and effect, pending the Award in any arbitration proceedings hereunder. 26.3.6 In the even by Party against whom the Award has been granted challenges the Award for any reason in a court of law, it shall make an interim payment to the other Party for an amount equal to 75% (seventy five per cent) of the Award, pending final settlement of the Dispute. The aforesaid amount shall be paid forthwith upon furnishing an irrevocable Bank Guarantee for a sum equal to 120% (one hundred and twenty per cent) of the aforesaid amount. The aforesaid amount shall be paid forthwith upon furnishing an irrevocable Bank Guarantee for a sum equal to 120% (one hundred and twenty per cent) of the aforesaid amount. Upon final settlement of the Dispute, the aforesaid interim payment shall be adjusted and any balance amount due to be paid or returned, as the case may be, shall be paid or returned with interest calculated at the rate of 10% (ten per cent) per annum from the date of interim payment to the date of final settlement of such balance.” The work which has been executed in pursuant to the contract, has not been concluded, as per the petitioner/applicant, it is due to the laches committed on the part of the respondent State Highway Authority of Jharkhand. 6. While on the other hand, respondent State Highway Authority of Jharkhand is alleging against the petitioner/applicant that due to non-conclusion of the work within the stipulated time as per the contract, the respondent State Highway Authority has suffered a lot and as such, they are also claiming against the petitioner/applicant. 7. It is evident from the dispute resolution mechanism that before resorting to the mechanism of appointment of Arbitrator, the dispute is tried to be resolved through conciliation at two stages. Herein, the petitioner/applicant has filed two Arbitration Applications being Arbitration Application Nos. 04 of 2018 and 02 of 2019, but, both the Arbitration Applications have been dismissed. The first Arbitration Application being Arbitration Application No. 04 of 2018 has been dismissed on the ground that the petitioner/applicant has directly moved to this Court without resorting to the first stage conciliation settlement of the dispute. Thereafter, the petitioner/applicant has taken steps to resolve the dispute by first stage of conciliation, but, it has been failed and thereafter, the petitioner/applicant has again filed one another application being Arbitration Application No. 02 of 2019 but the same has also been objected by the respondent State Highway Authority of Jharkhand on the ground that the second stage of conciliation, since has not been resorted to, therefore, the second arbitration application, is not maintainable. The petitioner/applicant, on such objection, has withdrawn the said arbitration application and has resorted to the second stage of conciliation for resolution of dispute. But, the dispute has not been resolved and thereafter, the instant application has been filed. The petitioner/applicant, on such objection, has withdrawn the said arbitration application and has resorted to the second stage of conciliation for resolution of dispute. But, the dispute has not been resolved and thereafter, the instant application has been filed. It appears from the pleading made in the instant application that the petitioner/applicant has proposed the name of Hon’ble Mrs. Justice Poonam Srivastava (Retd.) Former Judge of this Court but a serious objection has been raised by the respondent State Highway Authority by not giving consent in appointing Hon’ble Mrs. Justice Poonam Srivastava (Retd.) to act as Arbitrator. But, as would appear from the pleading made in the affidavit filed by the State Highway Authority that they have also raised the claim and they are willing to appoint the Arbitrator but other than Hon’ble Mrs. Justice Poonam Srivastava (Retd.). 8. Therefore, this Court has gathered from the argument as also from the pleading of the respective parties that both the parties are claiming against each other and are willing for resolution of dispute by appointing an independent Arbitrator. As such, this Court, in such circumstances, is of the view that it is a fit case where the power conferred under Section 11(6) of the Arbitration and Conciliation Act, 1996, is required to be exercised, since, even after the request having been made by the petitioner/applicant for appointment of Arbitrator, no Arbitrator has been appointed. 9. In view thereof, the instant application is allowed. 10. This Court has asked the suggestion from the learned counsel for the parties for disclosing the name for appointment of Arbitrator, so as to resolve the dispute. 11. Learned counsel for the parties, however, has submitted that this Court may appoint any Former Judge of the Hon’ble Supreme Court to act as Arbitrator. 12. Considering the aforesaid submission, this Court, therefore, appoints Hon’ble Mr. Justice (Retd.) Vineet Saran, Former Judge of the Hon’ble Supreme Court presently residing at 8, Motilal Nehru Marg, New Delhi, to act as Arbitrator for resolution of dispute between the parties. 13. The proposed Arbitrator is required to submit a declaration in terms of Section 12 of Arbitration and Conciliation Act, 1996. 14. Learned Arbitrator would be free to lay down fees and other expenses towards conduct of the arbitration proceedings, however, keeping into account the ceiling prescribed under Schedule IV of the Act of 1996 as amended. 15. 13. The proposed Arbitrator is required to submit a declaration in terms of Section 12 of Arbitration and Conciliation Act, 1996. 14. Learned Arbitrator would be free to lay down fees and other expenses towards conduct of the arbitration proceedings, however, keeping into account the ceiling prescribed under Schedule IV of the Act of 1996 as amended. 15. Learned Arbitrator would endeavour to conclude the proceedings preferably within the period of six months, also taking into regard the mandate of the Legislature under Section 29-A of the Act of 1996. 16. Let photocopy of the entire pleadings along with copy of the entire order sheet be sent to the learned Arbitrator by the Registry. 17. Pending Interlocutory Applications, if any, stands disposed of.