IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Arbitration Case No.27 of 2007 Date of decision: 11.9.2009 M/s Mandwal Enterprises. -----Applicant/Claimant Vs. Executive Engineer and another. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL Present:- Mr. Satya Pal Jain, Sr. Advocate with Mr. Dheeraj Jain, Advocate for the applicant. Mr. Ashish Rawal, Advocate for the respondents. --- ORDER: 1. This application has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short, “the Act”) for appointment of an arbitrator for adjudicating upon the dispute between the parties. 2. The applicant was allotted work which was to commence from 20.6.2005. However, before the work could commence, vide letter dated 22.7.2005 the same was revoked and earnest money was forfeited. The applicant vide its claim statement dated 5.7.2006 made request to the respondents to appoint an arbitrator but the arbitrator was not appointed. Arbitration Case No.27 of 2007 Thereafter, the present application was filed on 9.3.2007. Notice was issued on 9.7.2007. 3. In the reply filed on behalf of the respondents, it is stated that on 2.11.2006, arbitrator in terms of the agreement was appointed and intimation was sent vide letter dated 1.12.2006 prior to the filing of the application. The arbitrator vide his letter dated 13.12.2007 called upon the parties to appear. Letter dated 1.12.2006, conveying appointment of arbitrator, was sent by post but was received back undelivered and a special messenger was also sent but he was also unable to deliver the same at the given address. Thereafter, the letter was delivered on 6.8.2007. 4. Learned counsel for the applicant submits that appointment made, as stated in the reply, cannot be taken into account, as the relevant date is the date of intimation i.e. 6.8.2007 while the application had already been filed in this Court before the said date and notice had also been issued before the said date. In these circumstances, application was maintainable as held by Delhi High Court in M/s R.S. Avtar Singh & Co. v. India Tourism Development Corpn. Limited AIR 2003 Delhi 249 distinguishing the judgment of the Hon’ble Supreme Court in Datar Switchgears Ltd. v. Tata Finance Ltd. (2000) 8 SCC 151. 5. Neither the above facts are in dispute nor any contra judgment has been cited by learned counsel for the respondents. 2 Arbitration Case No.27 of 2007 6. Admittedly, there is dispute between the parties and there is arbitration clause and default in appointment of the arbitrator. 7. Accordingly, this application is allowed and there being no objection to the names suggested in the application, Shri Krishan Gopal Goswami, Retd. Chief Engineer and Ex- Member, Chandigarh Housing Board, H.No.70, Sector 27-A, Chandigarh (U.T.) is appointed as arbitrator to adjudicate upon the dispute between the parties in accordance with law. He will be entitled to fee @ Rs.5,000/- per hearing subject to maximum of 50,000/-, as suggested by learned counsel for the parties. This will be subject to the arbitrator accepting the appointment and the said fee. 8. The application is disposed of. September 11, 2009 (ADARSH KUMAR GOEL) ashwani JUDGE 3