FAO No. 343 of 2008 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on March 04,2010. State of Haryana through the Executive EngineerR.L.I,W/S Division, Jhajjar Appellant vs. M/S/Shivji Singla & Sons and another -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Anjum Ahmed,Addl.A.G.Haryana, for the appellant Mr.Sachin Mittal,Advocate,for the respondents Rakesh Kumar Jain, J, This appeal is directed against order of Addl.District Judge- I,Jhajjar dated 20.9.2007, whereby a petition filed under Section 34 (2) of Arbitration & Conciliation Act,1996 (for short,'the Act') by the appellant has been dismissed. The appellant invited tender for execution of the earth work and single layer brick lining of Daulatabad minor from K.M. 3.018 to 10.638 including structures. Respondent No1/contractor submitted tender on17.12.2002 which was accepted for execution of work for Rs. 53,54,159/-. Respondent No.1. was instructed to furnish the performance security for a sum of Rs. 2,68,000/- within fifteen days of the receipt of the letter dated 17.1.2003, which was, accordingly, furnished and an agreement containing terms and condition for the execution of work was executed between the parties which contained an arbitration clause. The allotted FAO No. 343 of 2008 (O&M) 2 work could not be executed within prescribed period for one reason or the other for which the appellant blamed the contractor and besides rescinding the contract, forfeited the security furnished by him. Respondent No.1 invoked the arbitration clause but the appellant did not appoint the arbitrator. Consequently, respondent No.1. filed an application under Section 11 of the Act on 18.3.2004 to the learned District Judge, for appointment of arbitrator, who vide his order dated 17.8.2004 appointed respondent No.2. as the sole arbitrator to adjudicate upon the dispute. Both the parties filed their claim and counter claim before the arbitrator, who vide his award dated 05.5.2005, gave a decision in favour of respondent No.1. which has been challenged by the appellant before learned Civil Court by way of objection filed under Section 34 (2) of the Act in which three points were raised. Firstly, appointment of arbitrator was against terms of the agreement. Secondly, arbitrator passed the award without application of mind and thirdly, arbitrator had awarded interest on the claimed amount on a higher side. In respect of first ground, learned Civil Court had held that objection against appointment of arbitrator cannot be taken at this stage as the appellant was at liberty to take this plea when the application under Section 11 of the Act was allowed , but no such objection was raised at that time. Therefore, it does not behove for the appellant to challenge the appointment of arbitrator. On the second ground, it was held that the Civil Court could not sit in appeal against the award and touch the findings arrived at by the arbitrator. In so far interest is concerned, it was held that it was within the competence of the arbitrator, who had awarded interest @ 6% per annum. In totality, objections were found to be without any merits FAO No. 343 of 2008 (O&M) 3 and the same were dismissed. In the present appeal, the grounds taken before the Court below have been repeated, but precisely the argument has been raised that the arbitrator had no jurisdiction to decide the matter as he has not been appointed as per terms of the agreement. In this regard, learned counsel for the respondents has vehemently argued that jurisdiction of the arbitrator could be challenged at the time of submission of statement of defence in view of Section 16(2) of the Act, and a party could raise this plea despite the fact the arbitrator has been wrongly appointed or they had participated in the appointment of the arbitrator. It is also submitted that it may not be necessary that at the time when arbitrator was appointed by the Civil Court under Section 11 of the Act, the plea could not be raised, but at the most, it could be raised not later than submission of statement of defence. Therefore, it is submitted that in view of Section 4 of the Act, the appellant is deemed to have waived off his right of objection. I am in full agreement with the arguments raised by learned counsel for the respondents and hold that the appellant does not have any legal right to challenge the order of Addl.District Judge-I,Jhajjar, whereby their objection against appointment of arbitrator has been dismissed. Hence, the present appeal is found to be without any merit and the same is hereby dismissed. March 04,2010 (Rakesh Kumar Jain) RR Judge FAO No. 343 of 2008 (O&M) 4