This application under Section 11 of Arbitration & Conciliation Act, 1996 has been filed by applicant for appointing independent arbitrator for resolving the dispute between the parties.

In nutshell the facts are that agreement was entered into between the applicant and respondents and in terms of the arbitration clause the applicant had earlier approached the Madhya Pradesh Madhyastham Adhikaran and the tribunal had passed award which was subject matter of challenge in civil revision No. 194/05 at the instance of present applicant. The said revision petition was disposed off by order dated 23/2/2010 by the Division Bench of this court in view of the judgment of the Supreme court in the matter of VA Tech Escher Wyass Flovel Ltd. Vs. M.P.S.E. Board and another by passing following order:

On account of passing of said order by the Division Bench the present application under Section 11 of Act has been filed.

Learned counsel for respondents has submitted that in view of the subsequent judgment of the Supreme court in the matter of Madhya Pradesh Rural Road Development Authority and another Vs. L.G. Chaudhary Engineers and Contractors reported in (2012) 3 SCC 495 the dispute is maintainable before the tribunal constituted under the MP Madhyastham Adhikaran Adhiniyam. He further submits that similar issue has been examined by the Supreme court vide order dated 6/9/2016 passed in SLP (Civil) No. 11539/14 wherein the liberty has been granted for review of the order passed in revision petition.

I have heard the learned counsel for parties and perused the record.

Similar issue had come up before this court in AC No. 30 of 2010 in the matter of M/s Dhruve Constructions Vs. Madhya Pradesh Electricity Board and another and this court by order dated 4 th December 2013 had disposed of arbitration case by holding as under:-

Paragraph 51 of the judgment in MP Rural Road Development Authority (Supra) makes it clear that the above view is the view of the both the Hon'ble Judges of the Supreme court forming the Bench. The difference of opinion between the Hon'ble Judges in the matter of MP Rural Road Development Authority (supra) was only to the limited extent i.e.if the definition of "works contract" includes the dispute pertaining to the termination, cancellation or repudiation of works contract. Paragraph 58 of the judgment by Hon'ble Justice Gyan Sudha Misra 'J' quoted below makes it clear that difference of opinion was only in respect of those cases where the work contract itself is repudiated, hence not in existence at all by virtue of cancellation/termination:-

Paragraph 62 of the judgment also makes it clear that the request for constituting a Larger Bench has been made to resolve the divergence which is mentioned above.

12/ The present case does not relate to the repudiation, termination or cancellation of the work contract but it is a matter where the grievance of the applicant is against non payment of the final bill which was raised in execution of the works contract. Thus, in view of the judgment of the Supreme court in the matter of MP Rural Road Development Authority (supra) such a dispute is required to be resolved in terms of the provisions of State Act, 1983 . The Arbitrator cannot be appointed in such a case invoking the provisions of the Central Act, 1996.

13/ In the present matter, the applicant had earlier approached the MP Arbitration Tribunal under the Provisions of MP Act, 1983 in Reference Case No. 56/2003 which was dismissed by the tribunal as premature and not maintainable by award dated 30/6/2006 on the ground that the applicant had not approached the Executive Engineer (Civil) in-charge of the division executing the work in terms of the arbitration clause 67 of the agreement and the procedure prescribed in said clause was not followed. This judgment of the tribunal was challenged by the applicant in civil revision No. 244/06 under Section 19 of the MP Act 1983 but taking note of the judgment in the matter of VA. Tech Escher Wyass Flovel Ltd. (supra) the Division Bench of this Court by order dated 23/4/2010 had declared the award of the tribunal as infructuous and disposed of the revision giving liberty to the parties to seek remedy under the Central Act of 1996 in accordance with law. Since the judgment of the Supreme court in the mater of VA. Tech Escher Wyass Flovel Ltd. (supra) has subsequently been held to be per incurium and in view of the judgment of the Supreme court in the matter of M.P. Rural Road Development Authority (supra),the remedy to the applicant lies under the MP Act of 1983 therefore, it is open to the applicant to approach the Division Bench seeking review of the order dated passed in CR No. 244/06 or challenge the same before the Hon'ble Supreme Court in accordance with law, if so advised."

The aforesaid order of this court was subject matter of challenge before the Supreme court in SLP (Civil) No. 11539/14 in the matter of M/s Dhruve Constructions Vs. Madhya Pradesh Electricity Board and another and the Supreme -5- court by order dated 6/9/16 by disposing off the SLP has held as under: