ORDER : 1. The present application under Section 11(6) of the Arbitration and Concilliation Act 1996, (hereinafter referred to as the ‘Act of 1996’) has been preferred for appointment of an independent and impartial arbitrator. 2. The facts of the case are that an agreement was entered into between the parties for the work of “Execution of construction of various buildings for permanent campus IIT Jodhpur (Phase-2) at Karwar, NH-65, Jodhpur, Rajasthan”. In terms of the agreement, the work was to be completed within a period of 21 months from the date of the integrity agreement and for the purpose, Letter of Acceptance dated 29.09.2017 was issued by the respondent department. However, the work in question could not be completed within the time stipulated i.e. by 12.07.2019, hence, the application for extension of time was preferred by the applicant company and the time was hence extended up to 31.07.2021. Ultimately, the work was completed and the completion certificate dated 27.08.2021 was issued by the respondent department. 3. As per the applicant firm, the reasons for the delay caused in completion of the work were not attributable to it and hence it was entitled for the compensation/ damages/ extra cost incurred towards completion of the delayed work. Vide letter dated 18.12.2021, a demand for the payment of the said additional costs was made and a claim of Rs.71.60 crores qua the same was raised by the firm. However, the said claims were rejected by the respondent authority vide letter dated 13.01.2022. 4. Hence, in terms of Clause 25 of the agreement in question, a request to the Superintending Engineer for deciding the dispute pertaining to the payment of the additional costs of Rs.71.60 crores was made. However, the Superintending Engineer failed to decide the dispute within the time stipulated as per Clause 25 and hence, an appeal to the Chief Engineer was preferred on 19.04.2022 but the same was also not decided within the stipulated period of 30 days. 5. Consequently, vide letter dated 31.05.2022, the Chief Engineer was requested to constitute a Dispute Redressal Commission (hereinafter referred to as ‘DRC’) for resolution of the dispute but the same was not constituted within the time frame as prescribed under Clause 25 and therefore, notice dated 16.11.2022 was served on the competent authority for reference of the dispute to Arbitration. 5. Consequently, vide letter dated 31.05.2022, the Chief Engineer was requested to constitute a Dispute Redressal Commission (hereinafter referred to as ‘DRC’) for resolution of the dispute but the same was not constituted within the time frame as prescribed under Clause 25 and therefore, notice dated 16.11.2022 was served on the competent authority for reference of the dispute to Arbitration. Vide the said notice, Clause 25 of the General Conditions of the Contract, as entered into between the parties, was invoked by the applicant company. Vide the said notice, three names of the proposed arbitrators were also suggested and respondent department was called upon to agree to any one of the said names or to suggest three names on their behalf so that a sole arbitrator could be appointed. However, instead of responding to the said notice, letter dated 05.01.2023 was issued by the respondent department informing that a DRC has been constituted. But, the applicant firm, at that stage, refused to participate in the proceedings of the said Committee on the premise that the same was not constituted within the stipulated period. The applicant firm also denied participation in proceedings of the said Committee for the reason that it had already invoked the Arbitration Clause. 6. As the notice invoking Arbitration Clause was served on the respondent department and the same was not responded to within a period of 30 days of the service, the present application for appointment of a sole arbitrator has been preferred on behalf of the applicant firm. 7. Learned counsel for the applicant firm submitted that the firm adopted the complete procedure as provided under Clause 25 of the agreement but as the same was not adhered to by the respondent department, an independent arbitrator now deserves to be appointed by this Court. 8. Per contra, learned counsel for the respondent submitted that acting upon the notice of the applicant company, a DRC was very well constituted by the department and hence, the present application being premature, deserves rejection. Counsel submits that in terms of Clause 25, each party invoking Arbitration, is under a mandate to first exhaust the mechanism of settlement of claims/disputes as provided therein. Therefore, the applicant company is first required to prefer its claim/appeal before the Committee and it is only after the rejection/ non decision of the Committee that the arbitration clause can be invoked. Therefore, the applicant company is first required to prefer its claim/appeal before the Committee and it is only after the rejection/ non decision of the Committee that the arbitration clause can be invoked. Counsel submits that acting upon the notices of the applicant company, vide communication dated 29.03.2023, even list of the proposed arbitrators was forwarded to it and it was called upon to choose one name from the said list. The firm failed to respond to the same and hence, the appropriate action in terms of Clause 25 having already been taken by the respondent department, the present application for appointment of an arbitrator cannot be laid by the applicant before this Court. 9. Counsel further submitted that when the notice dated 29.03.2023 was not responded to by the applicant firm, Shri V.K. Jayaswal was even appointed as a sole arbitrator by the respondent department and hence, the present application has rendered infructuous. 10. Heard learned counsel for the parties and perused the material available on record. 11. So far as the ground raised by learned counsel for the respondent that the present application has rendered infructuous because of an arbitrator having been appointed by the department vide communication dated 06.06.2023 is concerned, the same is not tenable. It is clear on record that the notice for arbitration was served on 16.11.2022 and the receipt of the same is also not denied. Admittedly, the arbitrator was appointed vide communication dated 06.06.2023 whereas, the present application under Section 11(6) of the Act 1996 has been filed on 01.02.2023. Meaning thereby, the arbitrator, if any, has been appointed after the date of presentation of the present application before this Court. As is the settled position of law and as held by the Hon’ble Supreme Court in the case of Deep Trading Company v/s Indian Oil Corporation & Ors. (2013) 4 SCC 35 , if the arbitration clause is invoked by one of the parties vide a notice and despite service of the same, no arbitrator in pursuance to the same is appointed by the respondent department/authority, the right to appoint the same continues only till the date an application under Section 11 of the Act of 1996 is preferred by the applicant before the Court. But once an application is preferred before the Court in terms of Section 11 of the Act of 1996, the right of the opposite party to appoint the arbitrator, ceases. Further, the arbitrator appointed subsequent to the filing of the application under Section 11 of the Act of 1996, would be of no consequence and even if an award is passed by the said arbitrator, the same would be null and void. In the case of Deep Trading Co. (supra), the Hon’ble Supreme Court has held as under:- “In Datar Switchgears Ltd. v. Tata Finance Ltd. and Anr., (2000) 8 SCC 151 , a two -Judge Bench of this Court considered the scheme of Section 11, noted the distinguishing features between Section 11(5) and Section 11(6) and then considered the question whether in a case falling under Section 11(6), the opposite party cannot appoint an arbitrator after the expiry of thirty days from the date of demand. This Court held that in cases arising under Section 11(6), if the opposite party has not made an appointment within thirty days of the demand, the right to make appointment is not forfeited but continues, but such an appointment has to be made before the first party makes application under Section 11 seeking appointment of an arbitrator. If no appointment has been made by the opposite party till application under Section 11(6) has been made, the right of the opposite party to make appointment ceases and is forfeited. If we apply the legal position exposited by this Court in Datar Switchgears Ltd. v. Tata Finance Ltd. and Anr., (2000) 8 SCC 151 to the admitted facts, it will be seen that the Corporation has forfeited its right to appoint the arbitrator. It is so for the reason that on 09.08.2004, the dealer called upon the Corporation to appoint the arbitrator in accordance with terms of Clause 29 of the agreement but that was not done till the dealer had made application under Section 11(6) to the Chief Justice of the Allahabad High Court for appointment of the arbitrator. The appointment was made by the Corporation only during the pendency of the proceedings under Section 11(6). Such appointment by the Corporation after forfeiture of its right is of no consequence and has not disentitled the dealer to seek appointment of the arbitrator by the Chief Justice under Section 11(6). The appointment was made by the Corporation only during the pendency of the proceedings under Section 11(6). Such appointment by the Corporation after forfeiture of its right is of no consequence and has not disentitled the dealer to seek appointment of the arbitrator by the Chief Justice under Section 11(6). We answer the above questions accordingly." Hence, in view of the above settled position of law, the ground as raised by learned counsel for the respondent is not plausible. 12. Coming on to the facts of the present matter, the work in question having been completed within the time extended, is not in dispute. Further, the fact of the dispute having arisen between the parties regarding extra costs incurred by the company in completion of the work is also not in dispute. The service of the notice invoking arbitration clause is also not in dispute. 13. Clause 25 of the agreement reads as under : "Settlement of Disputes & Arbitration:- Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, design, drawings and instructions here-in before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter. i. 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 writing by the Engineer-in-Charge on 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 Superintending Engineer in writing for written instruction or decision. Thereupon, the Superintending Engineer shall give his written instructions or decision within a period of one month from the receipt of the contractor's letter. Thereupon, the Superintending Engineer shall give his written instructions or decision within a period of one month from the receipt of the contractor's letter. If the Superintending Engineer 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 Superintending Engineer, the contractor may, within 15 days of the receipt of Superintending Engineer's decision, appeal to the Chief Engineer 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 Chief Engineer shall give his decision within 30 days of receipt of contractor's appeal. If the contractor is dissatisfied with the decision of the Chief Engineer, the contractor may within 30 days from the receipt of the Chief Engineer decision, appeal before the Dispute Redressal Committee (DRC) along with a list of disputes with amounts claimed in respect of each such dispute and giving reference to the rejection of his disputes by the Chief Engineer. The Dispute Redressal Committee (DRC) shall give his decision within a period of 90 days from the receipt of Contractor's appeal. The constitution of Dispute Redressal Committee (DRC) shall be as indicated in Schedule 'F'. If the Dispute Redressal Committee (DRC) fails to give his decision within the aforesaid period or any party is dissatisfied with the decision of Dispute Redressal Committee (DRC), then either party may within a period of 30 days from the receipt of the decision of Dispute Redressal Committee (DRC), give notice to the Chief Engineer for appointment of arbitrator on prescribed proforma as per Appendix XV, failing which the said decision shall be final binding and conclusive and not referable to adjudication by the arbitrator. It is a term of contract that each party invoking arbitration must exhaust the aforesaid mechanism of settlement of claims/disputes prior to invoking arbitration. ii. Except where the decision has become final, binding and conclusive in terms of Sub Para (i) above, disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, CPWD, in charge of the work or if there be no Chief Engineer, the Additional Director General of the concerned region of CPWD or if there be no Additional Director General, the Director General, CPWD. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another sole arbitrator shall be appointed in the manner aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed in respect of each such dispute along with the notice for appointment of arbitrator and giving reference to the rejection by the Chief Engineer of the appeal. It is also a term of this contract that no person, other than a person appointed by such Chief Engineer CPWD or Additional Director General or Director General, CPWD, as aforesaid, should act as arbitrator and if for any reason that is not possible, the matter shall not be referred to arbitration at all. It is also a term of this contract that if the contractor does not make any demand for appointment of arbitrator in respect of any claims in writing as aforesaid within 120 days of receiving the intimation from the Engineer-in-charge that the final bill is ready for payment, the claim of the contractor shall be deemed to have been waived and absolutely barred and the Government shall be discharged and released of all liabilities under the contract in respect of these claims. The arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) or any statutory modifications or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause. It is also a term of this contract that the arbitrator shall adjudicate on only such disputes as are referred to him by the appointing authority and give separate award against each dispute and claim referred to him and in all cases where the total amount of the claims by any party exceeds Rs.1,00,000/-, the arbitrator shall give reasons for the award. It is also a term of the contract that if any fees are payable to the arbitrator, these shall be paid equally by both the parties. It is also a term of the contract that if any fees are payable to the arbitrator, these shall be paid equally by both the parties. It is also a term of the contract that the arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties calling them to submit their statement of claims and counter statement of claims. The venue of the arbitration shall be such place as may be fixed by the arbitrator in his sole discretion. The fees, if any, of the arbitrator shall, if required to be paid before the award is made and published, be paid half and half by each of the parties. The cost of the reference and of the award (including the fees, if any, of the arbitrator) shall be in the discretion of the arbitrator who may direct to any by whom and in what manner, such costs or any part thereof shall be paid and fix or settle the amount of costs to be so paid." 14. In view of the fact that a dispute has arisen between the parties and Clause 25 of the agreement provides for resolution of the said dispute through arbitration and also the fact that the parties have not agreed for appointment of an arbitrator in terms of Clause 25 of the agreement, an impartial and independent arbitrator needs to be appointed by this Court for resolution of the disputes as raised vide notice dated 16.11.2022. 15. Both the counsel unanimously suggested the name of Hon'ble Justice Sangeet R. Lodha, a former Judge of this Court, to be appointed as an arbitrator in the present matter. 16. In view of the above analysis and the overall facts, the application under Section 11(6) of the Act of 1996 is allowed. Justice Sangeet R. Lodha (Retd.), a former Judge of this Court, is appointed as the Sole Arbitrator to adjudicate upon the disputes as raised vide communication/notice dated 16.11.2022(Annex.20). 17. The arbitration fee and the costs shall be in accordance with the Fourth Schedule of the Act of 1996. The above appointment shall be subject to the necessary disclosure being made in terms of Section 12 of the Act of 1996. 18. 17. The arbitration fee and the costs shall be in accordance with the Fourth Schedule of the Act of 1996. The above appointment shall be subject to the necessary disclosure being made in terms of Section 12 of the Act of 1996. 18. The intimation of the appointment as aforesaid be given by the Registry to Justice Sangeet R. Lodha (Retd.) R/o C-41, First Floor, C-Block, Greater Kailash-1, South Delhi, 110048 (Mobile No.9414130220). The parties would also be at liberty to intimate Justice Lodha of the present appointment and seek further directions.