Arb.P. 2/2009 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B LOKUR JUDGMENT AND ORDER (ORAL This petition is filed under Section 11(6) of the Arbitration an d Conciliation Act, 1996 for the appointment of an arbitrator. 2. Notice has been served upon all the respondents but despite this , there is no appearance on their behalf. Even on the last date of hearing, that is, 19th November, 2010 there was no appearance on behalf of any of the respond ents. Even today, the matter was called out twice but there is no appearance on behalf of any of the respondents. No reply has been filed opposing this petition . 3. At this stage, it may be noted that the petitioner is pressing t his petition only in so far respondent Nos. 1 and 2 are concerned. 4. The petitioner and respondent Nos. 3 to 8 are brothers. They had entered into an agreement on 16th July, 2007 with respondent Nos. 1 and 2 for t he construction of a multi-storied building on a plot of land belonging to the p etitioner and his brothers. The building was to have shops and residential accom modation. In so far as the petitioner is concerned, his share in the building wa s some shops and a residential flat No. G (Front side) sixth Floor-1787 sq. ft. 5. In terms of Clause 12 of the agreement, the building was to be c onstructed within a period of 24 (twenty four) months. Accordingly, the petition er and his brothers handed over possession of the land to respondent Nos. 1 and 2 sometime in August 2004. Consequently, the building ought to have been constru cted and completed by respondent Nos. 1 and 2 within 24 months, that is, sometim e in August 2006. Clause 12 of the agreement reads as follows :- That the building shall be constructed as per permission granted by the G.M.C. and in accordance with the provisions contained in G.M.C. Act and its bye laws a nd for any deviation in the construction, the second party should be responsible . The building shall be constructed and completed within a period of 24 months f rom the day of delivery of the possession of the land by the First Party. 6. It is averred that the building was not completed by respondent Nos. 1 and 2 within the specified time. In fact, learned counsel for the petitio ner has gone to the extent of saying that even today the building is not complet e. Since respondent Nos. 1 and 2 had failed to complete construction of the resi dential flat of the petitioner, and this seriously inconvenienced him, he invest ed his own savings and completed the construction so that he could occupy the fl at. 7. The petitioner took up the issue of the failure by respondent No s. 1 and 2 to construct the building in time including his own flat and, therefo re, required them to refer the dispute to arbitration and to appear before an Ar bitrator. A written notice dated 17th October, 2008 was sent by the petitioner t o respondent Nos. 1 and 2 by registered post A/D in which the petitioner categor ically stated that the building was not ready and the dispute between the partie s be settled by an Arbitrator and Sri Ram Lal Yadav, Advocate was appointed as a n Arbitrator by the petitioner. 8. At this stage, it is necessary to refer to the arbitration Clau se No. 28 in the agreement between the parties. This reads as follows: - That in case any dispute or differences arise between the parties hereto regard ing the meaning or context or affect of any clause or terms of this agreement th e same shall be settled by arbitration. 9. It is quite clear from the facts narrated above that a dispute h as arisen between the petitioner and respondent Nos. 1 and 2 with regard not onl y to the delay in construction but also to the failure of respondent Nos. 1 and 2 to hand over possession of a ready and complete flat to the petitioner. 10. Learned counsel for the petitioner says that there are some othe r disputes between the parties but I am not detailing them here. Suffice it to s ay that the immediate grievance is that despite a notice sent by the petitioner to respondent Nos. 1 and 2 on 17th October, 2008 to have the matter adjudicated by an arbitrator, there had been no response from them. Faced with the situation the petitioner has moved this petition under Section 11(6) of the Act. 11. As mentioned above, notice has been served upon respondent Nos. 1 and 2 but despite service these respondents have not appeared, nor have they f iled any opposition. 12. On the basis of the averments made by the petitioner, and which are supported by an affidavit, it is appears, prima facie, that respondent Nos. 1 and 2 have failed to discharge their duties as required under the agreement da ted 16th July, 2004 entered into with the petitioner and his brothers. Since the se respondents have not denied the allegations made, it must be assumed that the y have no objection if the disputes are referred to arbitration. 13. The petitioner has already named an Arbitrator in terms of Claus e 28 of the agreement between the parties. There does not seem to be any opposit ion to his conducting the proceedings. Accordingly, it is directed that the Arbi trator named by the petitioner namely, Sri Ram Lal Yadav, an Advocate practicing in this Court shall enter upon reference to decide the disputes between the pet itioner and respondent Nos. 1 and 2. 14. The parties should appear before the Arbitrator for further proc eedings on 22nd December, 2010. 15. The other grievances of the petitioner have not been referred to only because respondent Nos. 1 and 2 have not appeared in the matter or contest ed it. However, it is put on record that the petitioner has some other grievance s which may also be adjudicated by the Arbitrator. 16. The arbitration petition is disposed of in terms of the above di rections.