JUDGMENT : 1. These three connected arbitration applications having been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter called as “Act of 1996”) seeking appointment of arbitrators. 2. These three arbitration applications are being heard and decided together with the consent of both the parties as the matters relate to one and the same contract for three different places. 3. The applicant before this Court is a company incorporated under the provisions of Companies Act, 1956 (hereinafter called as “Act of 1956”) having its registered office at Mumbai. Respondent No.1 M/s Bharat Electronics Limited (for short “BEL”) is a Public Sector Undertaking under the control of Ministry of Defence, Government of India, having its registered office at Bengaluru. 4. The respondent/BEL on 11.7.2006 invited tender for construction of underground specialized RCC integrated structures at Air Force Station, at eight (8) different places. The applicant Company submitted its bid for “Package two” consisting of three locations i.e. Ambala (ZB), Shillong (ZF) and Port Blair (ZH1). The tender of the applicant was accepted and letter of acceptance was issued for the three locations on 16.9.2016. On 03.10.2016 a contract was executed between the applicant and BEL for “Package two” comprising of Letter of Acceptance (LOA), price scheduled (bill) of quantities, notice inviting tender and instruction to tenders, special conditions of contract, schedules A to F, technical specifications, drawings, General Conditions of Contract (GCC), corrigendum to transfer document etc. 5. The contract was to be completed within thirty months and the construction commenced from 01.11.2016. On 23.10.2017, 23.4.2020, 28.11.2020 and 03.6.2021 extension of time was sought by the applicant. On 10.09.2021, the applicant submitted claims to Engineer for payment of additional cost on account of extended stay/ prolongation of contract period. 6. On 28.9.2021, the Engineer rejected the claim of applicant on the ground that project, which was scheduled to be completed within a period of thirty months, was going to surpass more than double the period of contract i.e. sixty months. Dissatisfied with the decision of the Engineer, the applicant submitted his claim on 11.10.2021 before Engineer-in-Charge (EIC). On 09.12.2021, EIC required certain documents from the applicant. On 07.01.2022, the applicant filed an appeal before the Appellate Authority in terms of Clause 25.1 of GCC. Respondent/BEL on 27.01.2022 sent a communication through e-mail to the applicant for scheduling a meeting on 07.02.2022 or 08.02.2022. On 09.12.2021, EIC required certain documents from the applicant. On 07.01.2022, the applicant filed an appeal before the Appellate Authority in terms of Clause 25.1 of GCC. Respondent/BEL on 27.01.2022 sent a communication through e-mail to the applicant for scheduling a meeting on 07.02.2022 or 08.02.2022. On 01.02.2022 the applicant confirmed 08.02.2022 as the meeting date. 7. The respondent /BEL on 03.02.2022 requested the applicant for confirming meeting on 07.02.2022. However, on 03.02.2022 respondent through e-mail informed the applicant that 07.02.2022 was not feasible due to non-availability of CMD. 8. On 04.02.2022 request for completing the process before 09.02.2022 was made as timeline of thirty days for decision by Appellate Authority was going to expire. In the correspondence made by the respondent on 05.02.2022 they did not commit for any meeting on or before 09.02.2022 rather it was stated that mutually agreed date will not be a bar on the provision of the contract. The applicant yet again on 06.02.2022 requested for completing the proceedings before 09.02.022. 9. The respondent/BEL on 07.02.2022 stated that appeal filed by appellant was delayed. Another correspondence was made by the respondent on 08.02.2022 informing the applicant that there was delay in filing the appeal before the Appellate Authority within 15 days of the receipt of decision of Engineer-in-Charge. When there was no response by the Appointing Authority, the applicant on 12.02.2022 gave a notice requesting the Appellate Authority for appointment of an Arbitrator, mutually acceptable to the parties. 10. After receipt of the notice, respondent/BEL on 07.03.2022 again requested the applicant to intimate suitable date for meeting/appeal as an opportunity to the applicant to be heard. Hence these applications. 11. Sri Sameer Sharma, learned Senior Advocate appearing for the applicant submitted that Clause 25 of the contract provides for settlement of disputes and arbitration. Clause 25.1 provides that in case Contractor considers any work demanded to him outside the requirements of the Contract, or there is any dispute or decision given in writing by the Engineer in connection with any matter arising out of Contract, he shall promptly within 15 days request the Engineer-in-Charge in wringing for written instruction or decision. Thereupon, the Engineer-in-Charge shall give his written instructions or decision within a period of one month from the receipt of the Contractor’s letter. Thereupon, the Engineer-in-Charge shall give his written instructions or decision within a period of one month from the receipt of the Contractor’s letter. In case, Engineer-in-Charge fails to give his instructions or decision in writing within the period provided, or in case Contractor is dissatisfied with the decision, he may within 15 days of the receipt of Engineer-in-Charge’s decision, appeal to the Appellate Authority. 12. In the present case, the applicant being dissatisfied with the decision of Engineer, on 11.10.2021 moved claim before Engineer-in-Chief, who did not take any decision in the matter within one month due to which an appeal was preferred before the Appellate Authority on 07.01.2022 and the Appellate Authority having failed to decide the appeal, who was required to decide the same within 30 days as provided in Clause 25.1, the applicant was left with no other option but to file the present applications for appointment of Arbitrator. 13. Counsel for the petitioner then contended that the applicant exhausted entire pre-arbitral procedure, as provided under Clause 25.1 of GCC before approaching this Court for appointment of Arbitrator. According to learned counsel, in case a Contractor is dissatisfied with the decision of Appellate Authority, he has remedy of approaching the Appointing Authority within thirty days for appointment of Arbitrator. Neither the appeal has been decided nor the notice given to the Appointing Authority for appointing Arbitrator on 12.02.2022 has been complied with as per Clause 25.1 read with Clause 25.2 hence the applicant was left with no other option but to prefer the present applications before this Court. 14. Sri Anurag Khanna, learned Senior Advocate appearing for respondent/BEL invited the attention of the Court to para 5 of counter affidavit wherein reliance has been placed upon the communication made between the parties during pendency of the appeal. According to him, the respondent/BEL on 27.01.2022 had taken steps for scheduling meeting on 7th or 8th of February, 2022. Regular correspondence were being made for fixing some mutually agreeable date and the parties were in constant touch with each other, as can be seen from e-mail made between the parties between 27.01.2022 to 08.02.222. He then contended that as CMD was not available on 7th February, 2022, the meeting was shifted to 8th February, 2022 but on that day also the meeting could not be scheduled. The respondents were eager to hold the meeting and resolve the dispute. He then contended that as CMD was not available on 7th February, 2022, the meeting was shifted to 8th February, 2022 but on that day also the meeting could not be scheduled. The respondents were eager to hold the meeting and resolve the dispute. He then invited the attention of the Court to Annexure-10 (page 263 of the paper book filed by the applicant) wherein correspondence was made by BEL on 7th March, 2022 requiring the applicant to intimate the date so that a meeting could be held and appeal may be decided. Reliance has been placed upon judgment of Apex Court in Iron & Steel Co. Ltd. vs. Tiwari Road Lines (2007) 5 SCC 703 ; judgment of Delhi High Court in Sanjay Iron and Steel Limited vs. Steel Authority of India 2021 SCC OnLine Del 4566; judgment of Madhya Pradesh at Indore in Misc. Civil Case No.1043 of 2003 (Dharamdas Tirathdas Constructions Pvt. Ltd. vs. Government of India through the Chief Engineer Central Public Works Department, Central Zone and others) decided on 7th May, 2022; and, judgment of Kerala High Court in Nirman Sindia vs. Indal Electromelts Ltd., Coimbatore and others AIR 1999 Ker 440 . 15. Sri Khanna lastly contended that the applicant has not exhausted pre-arbitral procedure, as envisaged under Clause 25 before approaching this Court. Once the appeal was pending and applicant was required to place documents, which it failed, the pre-arbitral procedure has not come to an end and the present arbitration proceedings launched at the behest of the applicant is premature. 16. I have heard the respective counsel for the parties and perused the material on record. 17. Clause 25 of the General Condition of Contract (GCC), entered into between the parties, provides for settlement of dispute and arbitration. Relevant Clause 25.1 and 25.2 are extracted hereasunder : “CLAUSE 25 Settlement of Disputes & Arbitration (1) If the Contractor considers any work demanded of him to be outside the requirements of the Contract, or disputes any drawings, record or decision given in wringing by the Engineer or any matter in connection with or arising out of the Contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the Engineer-in-Charge in wringing for written instruction or decision. Thereupon, the Engineer-in-Charge shall give his written instructions or decision within a period of one month from the receipt of the Contractor’s letter. If the Engineer-in-Charge fails to give his instructions or decision in writing within the aforesaid period or if the Contractor is dissatisfied with the instructions or decision of the Engineer-in-Charge, the Contractor may, within 15 days of the receipt of the Engineer-in-Charge decision, appeal to the Appellate Authority specified in Schedule ‘F’ who shall afford an opportunity to the Contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The Appellate Authority shall give his decision within 30 days of receipt of Contractor’s appeal. If the Contractor is dissatisfied with this decision, the Contractor shall within a period of 30 days from receipt of the decision, give notice to the Appointing Authority specified in Schedule ‘F’ for appointment of arbitrator failing which the said decision shall be final binding and conclusive and not referable to adjudication by the arbitrator. (2) Excepts where the decision has become final, binding and conclusive in terms of Sub Para (1) above, disputes or difference shall be refered for adjudication through arbitration by a sole arbitrator appointed by the Appointing Authority. The selection of Arbitrator by the Appointing Authority will be governed by the fact whether the dispute is (I) between two Public Sector Enterprises or (ii) between a Public Sector Enterprise and a Government Department or (iii) Otherwise. In case the dispute does not fall under item (i) or (ii) of this Para the Appointing Authority, shall appoint the sole Arbitrator. Within 30 days of receipt of notice from the Contractor to refer the dispute for Arbitration, the Appointing Authority stipulated in Schedule ‘F’ shall send to the Contractor a list of three serving officers of Employer of appropriate status depending on the total value of claim, who have not been connected with the work under the Contract. The Contractor shall, within 15 days of receipt of this list select and communicate to the Appointing Authority, the name of one officer from the list who shall then be appointed as the Sole Arbitrator. If the Contractor fails to communicate his selection of name within the stipulated period, the Appointing Authority shall without delay, select one officer from the list and appoint him as the Sole Arbitrator.” 18. If the Contractor fails to communicate his selection of name within the stipulated period, the Appointing Authority shall without delay, select one officer from the list and appoint him as the Sole Arbitrator.” 18. From the reading of Clause 25.1 and 25.2, it culls out that the parties to the agreement had provided for pre-arbitral procedure for settlement of their dispute. According to Clause 25.1, the Contractor may raise any dispute with Engineer on any matter in connection with or arising out of the work. The decision made by the Engineer can be questioned before the Engineer-in-Charge within 15 days. Thereupon the Engineer-in-Charge has to given his written instructions or decision within one month from the date of receipt of Contractor’s letter. In case of failure on the part of Engineer-in-Charge to give instructions or decision, or in case the Contractor is dissatisfied with the decision or instructions of the Engineer-in-Charge, he may within fifteen days of the receipt of Engineer-in-Charge decision, appeal to the Appellate Authority. The Appellate Authority has to decide the appeal of the Contractor within thirty days. 19. The word ‘shall’ occurring in Clause 25.1 is of great relevance. It has been used for the Appellate Authority who has to decide the appeal of the Contractor within thirty days of its receipt. It is mandatory on the part of the Appellate Authority to take decision on the appeal and not to linger on or postpone the same. 20. In the commercial world, time is the essence of contract. Once the parties has prescribed certain period for taking any decision, it has to be adhered to by the authority. Clause 25.1 provides for pre-arbitral procedure, which cuts down the arbitration proceedings and leads for settlement of disputes between the contracting parties without investing any money and approaching arbitral forum. It is only in case of failure of pre-arbitral procedure, recourse to arbitration is taken by the parties. 21. In the instant case, at each step, the contract provided for time which has to be mandatorily adhered to by the authority. The Engineer-in-Charge is bound to decide the claim of the Contractor within thirty days. In case of non compliance, the Contractor has a remedy of filing an appeal before Appellate Authority. However, in case a decision is taken by Engineer-in-Charge then he has a remedy of filing appeal in case of dissatisfaction, within 15 days. 22. The Engineer-in-Charge is bound to decide the claim of the Contractor within thirty days. In case of non compliance, the Contractor has a remedy of filing an appeal before Appellate Authority. However, in case a decision is taken by Engineer-in-Charge then he has a remedy of filing appeal in case of dissatisfaction, within 15 days. 22. Similarly, the Appellate Authority is bound to decide the appeal within 30 days. As the Engineer-in-Charge failed to decide the claim, which was moved before it, the applicant-Contractor filed an appeal on 07.01.2022, which remained pending and was not decided within the timeline fixed. Moreover, looking to the conduct of respondent-BEL, it is clear that for the first time it took initiative for arranging the meeting on 27.01.2022 i.e. after 20 days of filing of appeal. Despite the regular correspondence made between the parties, the respondent itself was not agreeing to any date prior to the statutory period expiring in the 1st week of February, 2022. 23. The applicant, after expiry of statutory period of appeal, proceeded to give notice to the Appointing Authority for appointment of Arbitrator, which also remained pending and till date neither the appeal has been decided nor any Arbitrator has been appointed by the respondent-BEL in terms of Clause 25. 24. The pre-arbitral procedure, which finds place in the contract executed between the parties, was only to shorten the litigation between the parties providing for an opportunity to shorten the dispute and settle it amicably amongst themselves. Reliance placed upon decision of Apex Court in Iron & Steel Co. Ltd. (supra) is of no help to the respondent as the Apex Court had held that in the matter of settlement of dispute by arbitration, the agreement executed between the parties has to be given great importance and agreed procedure for appointing Arbitrator has been placed at high pedestal and has to be given preference to any other mode for securing appointment of an Arbitrator. 25. In the present case, the pre-arbitral procedure was initiated by the applicant which was miserably derailed by the respondent-BEL by not responding either at the stage of Engineer-in-Charge or by the Appellate Authority or by the Appointing Authority for appointment of Arbitrator, hence these applications have been moved. 26. In Sanjay Iron and Steel Limited (supra) the Delhi High Court held as under : “20. 26. In Sanjay Iron and Steel Limited (supra) the Delhi High Court held as under : “20. A bare perusal of aforesaid Clause makes it manifestly clear that parties have agreed to a specific mechanism to be adopted for resolution of disputes. However, by approaching this Court seeking appointment of Arbitrator, petitioner is eventually trying to bye-pass or skip the preceding condition of adopting recourse to conciliation, thereby making an attempt to dodge Clause-10.1 of the Agreement. It is not the only case of petitioner that it is unable to pay the gigantic amount of fee quoted for Conciliator before the SCOPE but also that the Agreement in question also stands vitiated on many counts. Similarly, respondent has disputed the various claims put-forth by the petitioner. Nevertheless, the disputes so raised by both the sides can be adjudicated upon either in conciliation or in arbitration proceedings and this Court is not required to go into the details thereof. ….. 26. In the case in hand, Clause-10 of the Agreement in question makes it manifestly clear that at the first instance parties shall endeavour to resolve such dispute through the SCOPE Forum of Conciliation & Arbitration and if the dispute is not settled by conciliation within 30 days of the conciliation, then the aggrieved party may refer to arbitration, which again shall be governed in accordance with the Rules of Arbitration of the “SCOPE”. In fact, respondent vide its letter dated 08.12.2020 also tendered its consent to invocation of conciliation proceedings through SCOPE. However, despite invocation of conciliation, the proceedings before the Conciliator did not commence due to non-payment of fees. ….. 28. In view of afore-noted narration, this Court is of the opinion that the very purpose of keeping a conciliation clause in any Agreement is to shorten the path for settlement of disputes between the parties. Therefore, parties in the present petition are directed to first explore possibility of resolution of disputes through Conciliation in terms spelt out in Clause-10 of the Agreement. Further directed that parties shall strictly adhere to the time line and shall conclude the conciliation proceedings within 30 days of initiation of conciliation proceedings, as agreed in Clause 10.1 of the Agreement and thereafter only disputes, if any, shall be referred to arbitration.” 27. In Nirman Sindia (supra), Kerala High Court held has under : “7. Further directed that parties shall strictly adhere to the time line and shall conclude the conciliation proceedings within 30 days of initiation of conciliation proceedings, as agreed in Clause 10.1 of the Agreement and thereafter only disputes, if any, shall be referred to arbitration.” 27. In Nirman Sindia (supra), Kerala High Court held has under : “7. It has to be noted that if there is any dispute between the applicant and the 1st respondent with regard to the execution of the work, payments to be made etc. as per the terms of the contract, the same should have been referred to the engineer for his decision and if dissatisfied with the decision of the Engineer, should have been referred to the adjudicator named in the agreement. In this case the applicant has not only not referred the disputes to the decision of the Engineer and then to the adjudicator, but they have prevented the adjudicator from proceeding with the adjudication, questioning the very authority of the adjudicator. Therefore, it is clear that the applicant did not refer the dispute for decision by the Engineer and prevented the adjudicator from adjudicating the disputes as per the terms of the agreement. The applicant has no case that the 1st respondent has waived the steps provided in the agreement preceding the coming into operation of the arbitration clause in the agreement. On the other hand, the contentions raised by the applicant and the 1st respondent establish that the 1st respondent has been asserting that the applicant should follow the preceding steps before enforcing the clause regarding arbitration incorporated in the agreement. 8. Therefore, it is clear that the applicant either refused to comply or prevented compliance of the procedure laid down or the preceding steps to enforce the arbitration clause in the agreement. The applicant who has been responsible for preventing or frustrating the operation of the earlier or preceding steps for enforcing the arbitration clause in the agreement, cannot seek arbitration by contending that the 1st respondent has not complied with the request for appointment of arbitrator as provided in the agreement. A scrutiny of the clauses 24 and 25 of Ext. The applicant who has been responsible for preventing or frustrating the operation of the earlier or preceding steps for enforcing the arbitration clause in the agreement, cannot seek arbitration by contending that the 1st respondent has not complied with the request for appointment of arbitrator as provided in the agreement. A scrutiny of the clauses 24 and 25 of Ext. P4 agreement clearly establishes that the applicant and the 1st respondent agreed to settle the disputes through arbitration and such reference to arbitration should be preceded by a decision by the Engineer and a challenge to that decision before the adjudicator by the aggrieved party within the time prescribed under those clauses. Without resorting to those essential or preceding steps for arbitration, or the parties to the contract waiving those steps, the provisions of Ext. P4 agreement prohibits either party from enforcing the arbitration clause.” 28. From the reading of above decisions, it is clear that the parties have to first comply the procedure, as provided under the agreement for appointment of Arbitrator and then only can approach the other Forum for securing the appointment of Arbitrator. In the instant case, the applicant had exhausted all the remedy provided under Clause 25.1 in regard to pre-arbitral procedure before approaching this Curt under Section 11 of the Act of 1996. It was on the failure on the part of respondent-BEL, firstly, at the stage of Engineer-in-Charge not taking any decision on the claim of the contractor; Secondly, the Appellate Authority sitting tight over the appeal despite the statutory period having expired and no decision having been taken; and thirdly, after the notice given to the Appointing Authority for appointment of Arbitrator, no arbitrator till date has been appointed. 29. During the hearing of these applications, a constant endeavour was made by respondent’s counsel for referring the matter back to the Appellate Authority for exhausting the pre-arbitral procedure. This Court finds that no serious effort for almost one year has been made by the respondent for getting the dispute resolved in view of Clause 25.1 and 25.2. 30. In today’s commercial world, business cannot thrive if the authorities, who are entrusted to take decision in commercial matters are busy in derailing the issue on technicalities. After all, both the parties had entered into a contract and are bound by the terms of agreement executed between them. 30. In today’s commercial world, business cannot thrive if the authorities, who are entrusted to take decision in commercial matters are busy in derailing the issue on technicalities. After all, both the parties had entered into a contract and are bound by the terms of agreement executed between them. It is only on the failure of one of the parties to the contract to comply with the terms and conditions as laid down, that the role of the Court steps in. The argument raised by the respondent counsel cannot be accepted and the applicant in such circumstances cannot be left remediless. 31. In view of the aforesaid, all the three applications for appointment of Arbitrator are allowed. 32. Let Hon’ble Mr. Justice Dilip B.Bhosale, Former Chief Justice of this Court, resident of A-1903, 19th Floor, Zeon, A-Wing, Ajmera I-Land, Bhakti Park, Near Imax, Wadala (East) Mumbai-400037, Office Address: 6, Bhagyodaya Building 79, Nagindas Master Road Fort, Mumbai 400001; Mobile Nos.9494940122 and 9833300555, e-mail Id: dbbarbitration@gmail.com, be appointed as an Arbitrator to resolve the dispute in all the three arbitration applications subject to his consent in terms of Section 11(8) of the Arbitration and Conciliation Act, 1996. 33. Registry is directed to obtain consent of proposed arbitrator in terms of Section 11(8) of the Act within three weeks. 34. List thereafter.