Arb.P. 1/2005 BEFORE HON’BLE THE CHIEF JUSTICE MR. R.S. GARG Judgement and Order (ORAL) Heard Mr. P.C. Deka, the learned counsel for the petitioner and Mr. I. Choudhury, the learned counsel for the respondents. 2. The petitioner has come to this Court under Section 11 of the Ar bitration and Conciliation Act, 1996 with a prayer that in accordance with the A rbitration Clause-104 under Section 3 of the General Conditions of Contract cont ained in the formal agreement, an arbitrator is required to be appointed and the matter may be referred to him. 3. Without entering into the unnecessary details, it would be necessary to note the arbitration clause on which both the parties are relyin g upon as under:- 104.0 Disputes/Arbitration: 104.1 Any dispute or difference whatsoever which shall at any time arise betwe en the parties hereto touching or concerning the works or execution or maintenan ce thereof of this contract the rights touching or concerning the works of the e xecution effect thereof or the construction, meaning, operation or effect thereo f or to the rights or liabilities of the parties or arising out of or in relatio n thereto whether during or after completion of the contract or whether before o r after termination, fore closure of breach of the contract (other than those in respect of which the decision of any person is by the contract express to be fi nal and binding) shall be endeavour to be amicably settled by the parties in the following matter: a) At the first instance, by the Engineer-in-Charge. b) Then Additional Chief Engineer, P.W.D. (Building), P.C.C. Project Comple x, Assam on being referred within 10 (ten) days of the notification of Engineer- in-Charge decision. The Additional Chief Engineer, P.W.D. (Building), P.C.C. Pr oject Complex, Assam shall give a decision on the matter in a period of 10 (ten) days after receipt of notice given by the Contractor which shall be binding & F inal for both the parties. c) In case, Contractor is not satisfied, matter shall be referred to Arbitr ation by the contractor within 30 (thirty) days of the notification of the decis ion of Additional Chief Engineer, P.W.D. (Building), P.C.C. Project Complex, Ass am, indicating in writing their intention to refer the dispute to Arbitration fa iling which the said decision shall be binding & final and conclusive on both th e parties and not referable to adjudication by the Arbitrator. c) (i) If the matter of dispute is referred to the Arbitration 3 (three) no s. Arbitrators shall be appointed, one of which is to be appointed by each party and the third to be appointed by the two arbitrators. The decision of the majo rity of the arbitrators shall be final and binding on both the parties. The Arb itration Act 1940 and the Rules thereunder and statutory modification thereof sh all apply to such Arbitration. It is hereby provided that the Arbitrator so appo inted shall make their award within four months from the date of Arbitrators ent ering on the reference. It is also a term of the contract that if any fees paya ble to the Arbitrators these shall be paid equally by both the parties. 4. Undisputedly after the period for completion of the contract exp ired, the petitioner made an application for extension of time, which was reject ed, the petitioner came to the High Court in a writ petition, the High Court ext ended the time for making a representation but, however, appropriate representat ion was not made, therefore, a miscellaneous application was filed. On first oc casion, the High Court grated yet another opportunity to the petitioner but when the petitioner failed, another opportunity was refused by the High Court. It a ppears that thereafter, the contract was cancelled, therefore, the petitioner vi de Annexure-5 issued a notice dated 18-10-2004 to the Engineer-in-Charge/Executi ve Engineer, PWD to decide the matter amicably. It appears that nothing was don e in the matter, therefore, the petitioner approached the Additional Chief Engin eer, PWD (Building) and requested him to appoint an Arbitrator under Clause 104. 1 (c) of the agreement. As the prayer for appointment of the arbitrator was not considered, the petitioner has filed this petition under Section 11 of the Arbi tration and Conciliation Act, 1996 praying for indulgence of the High Court for appointment of an arbitrator. 5. The learned counsel for the petitioner placing reliance upon the language of Clause -104 submitted that it shall be endeavor of the parties to a micably settle the dispute firstly by approaching the Engineer-in-Charge and if the Engineer-in-Charge records finding against the interest of the contractor th en the contractor can approach the Additional Chief Engineer, PWD, (Building) wi thin 10 (ten) days of the notification of the decision of the Executive Engineer . His submission is that such Executive Engineer and the Chief Engineer did not look into the matter in accordance with law, therefore, the petitioner was cons trained to issue a notice on 29-11-2004 (Annexure-6) to the Additional Chief Eng ineer, PWD for appointment of an arbitrator. His submission in fact is that if the petitioner had exercised all his rights and has taken up all the steps as re quired under the law and the respondents have failed to take every steps, then t his Court should entertain this matter and appoint an arbitrator in accordance w ith the power conferred under Section 11 of the Arbitration and Conciliation Act , 1996. 6. The learned counsel for the respondents, on the other hand, has submitted that assuming the first letter dated 18-10-2004 (Annexure-5) was writt en by the petitioner to the Executive Engineer then the petitioner was required to approach the Additional Chief Engineer under Clause-104.1(b) of the agreement assuming the inaction or non-action or non-decision on the part of the Executiv e Engineer to be a decision against the petitioner. His further submission is th at unless the petitioner had approached the Additional Chief Engineer under Clau se-104.1(b), a cause of action for appointment of the arbitrator under Clause-10 4.1(c) would never arise. Referring to the language of Annexure-6 letter dated 29-11-2004 addressed to the Additional Chief Engineer, PWD (Building), it was su bmitted that the petitioner did not approach the concerned Additional Chief Engi neer under Clause-104.1(b) but had directly jumped to exercise his power under C lause-104.1(c) and, therefore, in absence of a cause of action for appointment o f an arbitrator, the present petition cannot be maintained. 7. The learned counsel for the petitioner in reply, however, has su bmitted that because of the wrong understanding of the petitioner, the law shoul d not curtail his rights and the technicalities should not come in his way. It is also submitted that the letter dated 29-11-2004 (Annexure-6) could be taken t o be a letter under Clause-104.1(b) of the agreement and under such circumstance s the Additional Chief Engineer should have taken up and decided the matter. 8. I have heard the learned counsel for the parties at length, I ha ve also gone through the documents appended to the petition and Clause-104. 9. Clause 104.1 entitles as disputes/arbitrator. It says that ende avour of the parties should be to amicably settle the disputes. Clause (a) says that at the first instance the matter will have to be resolved by the Engineer- in-Chief (Executive Engineer). If a party is aggrieved by the decision given by the Engineer-in-Chief then the said party has to approach the Additional Chief Engineer within 10 (ten) days of the notification of the decision of the Chief E ngineer. After such a representation is made to the Additional Chief Engineer, the Additional Chief Engineer shall be obliged to give his decision on the matte r in a period of 10 (ten) days after receipt of the notice given by the contract or. If a party is still not satisfied and continues to be aggrieved then at the instance of the said party or at the request of the contractor the matter will have to be referred to the arbitration by the contractor within 30 (thirty) days of the notification of the decision of the Additional Chief Engineer. 10. In the present matter, a perusal of Annexure-5 letter dated 18-1 0-2004 clearly shows that the present petitioner was referring the matter to the Executive Engineer (Engineer-in-Chief) for resolution of the dispute. If the p etitioner was dissatisfied with the decision of the Executive Engineer or was of the opinion that non-action on the part of the Executive Engineer would also a decision then he was required to approach the Additional Chief Engineer, under C lause-104.1(b). Had he approached the Additional Chief Engineer under Clause-104 .1(b) then the Additional Chief Engineer would have been obliged to decide the m atter within 10 (ten) days from the date of receipt of notice. Clause-104.1(b) in fact provided the inter-mediate step for approaching the arbitrator in case o f dissatisfaction. In the present matter against non-action or non-decision on the part of the Executive Engineer, the petitioner without approaching the Addit ional Chief Engineer under Clause-104.1(b) has straightway issued a notice to th e Additional Chief Engineer under Clause-104.1(c) for appointment of an arbitrat or. The language employed in Annexure-6 says that in their letter dated 18-10-2 004 (Annexure-5) indicating the various disputes and differences arising out of the aforementioned contract accompanied with the statement of claims, which the petitioner had submitted to the Additional Chief Engineer for proper adjudicatio n of the same within the stipulated time period of 10 (ten) days from the date o f receipt of the letter and as they had not received any communication from the side of the Additional Chief Engineer, they were requesting the Additional Chie f Engineer to appoint an arbitrator. The language employed in the letter dated 29-11-2004 that the matter was referred to the Additional Chief Engineer on 18-1 0-2004 in fact is absolutely wrong submission. From perusal of Annexure-5, it w ould clearly appear that the said letter dated 18-10-2004 was not addressed to t he Additional Chief Engineer but in fact was addressed to the Executive Engineer . It appears that the petitioner was trying to take advantage of the letter dat ed 18-10-2004 by observing that the said letter was addressed to the Additional Chief Engineer. If the letter dated 18-10-2004 was not addressed to the Additio nal Chief Engineer nor the indulgence of the Additional Chief Engineer was invit ed under Clause (b) then the petitioner, at this stage, cannot be allowed to say that there were some lapses and, therefore, the technicalities should not creat e problems in his way. 11. It would be trite to say that if a thing is required to be done in a particular manner then it has to be done in that manner only and not otherw ise. In the present matter, if the petitioner desired to refer the matter to th e arbitrator then he was required to approach the Executive Engineer and thereaf ter, to the Additional Chief Engineer for their respective decision. In the con sidered opinion of this Court, if Clause-104.1(b) has not been observed then it may not be possible for this Court to conceive to the request of the petitioner for appointment of an arbitrator because the petitioner would have no cause of a ction for appointment of an arbitrator. 12. Assuming that the petitioner was under some misconception or the re was some misunderstanding on his part then too in the interest of justice, th e petitioner would not be allowed to say that such misunderstanding should pave his path with flowers and he should be allowed to approach the Court for appoint ment of an arbitrator. 13. In the considered opinion of this Court, if the petitioner has n ot complied with Clause 104.1 (b) then he could not issue a notice for appointme nt of an arbitrator nor he can come to this Court under Section 11 of the Arbitr ation and Conciliation Act, 1996. 14. For the reasons aforesaid, I hold that the petitioner has misera bly failed in making out of a case for appointment of the arbitrator. 15. The petition is dismissed. No cost.