Arb.P. 1/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR The respondents floated a tender for the performance of work at Rangapani of sid ing for Numaligarh Refinery Ltd, Assam staff quarter Type-II 20 units and Type-I II 4 units. The petitioners submitted their bid, which was accepted by the respondents by a letter dated 31-3-2000. It appears that subsequently some dispute arose between the parties and in terms of Clause 64 of the agreement between them, the petitio ners made a demand for arbitration by a letter dated 11-11-09. Since the respondents did not respond to the letter nor did they appoint any arb itrator, the petitioners have approached this Court for the appointment of an ar bitrator in accordance with Section 11 of the Arbitration and Conciliation Act, 1996. The respondents have appeared in the matter after a notice was served on them. I t is submitted by learned counsel for the respondents that the letter dated 11-1 1-2009 was misplaced in the office of the respondents and as such the matter cou ld not be processed for the appointment of an arbitrator. He says that after rec eipt of the notice issued by this court, the respondents have taken steps by ask ing the petitioners to nominate their arbitrator since the amount in dispute is more than Rs.10 lacs and an arbitral Tribunal of three Arbitrators needs to be a ppointed. On this basis it is submitted that this petition need not be proceeded with and the petitioners may be directed to nominate their Arbitrator in accord ance with the procedure laid down in Clause 64 of the agreement between the part ies. In my opinion, the respondents have taken a considerably long time in reacting t o the letter dated 11-11-2009 and their right to appoint an Arbitrator in terms of Clause 64 has been waived if not extinguished. The respondents have responded only after a notice was served by this court in a petition filed by the petitio ners under Section 11 of the Arbitration and Conciliation Act, 1996. Under the circumstances it is not open to the respondents to say that the terms of the arbitration clause should be strictly adhered to. It is important to note that in principle, the respondents do not have any objec tion in appointing an Arbitrator but insist that the procedure laid down in Clau se 64 of the agreement is to be followed. I am of the view that by their inaction the respondents have given up their righ t to insist upon the petitioners following the procedure in Clause 64 of the agr eement between the parties. The petitioners are fully entitled, in view of the c onduct of the respondents, to approach this Court for the appointment of an Arbi trator under Section 11 of the Arbitration and Conciliation Act, 1996. In view of the fact that in principle there is no objection shown by the respond ent for the appointment of an Arbitrator, it will be appropriate if the matter i s referred to arbitration by an independent person. Accordingly, it is directed that the matter be referred to the arbitration of Ju stice P.G. Agarwal (a retired Judge of this Court) who will decide the disputes between the parties within a reasonable period of time. The Registry will communicate this order to Justice P.G. Agarwal (Retd) as soon as possible and he may take up the matter for adjudication by arbitration. The petition is disposed of.