This writ petition is filed against the order dated 14.9.2001 passed in C.M.P No. 79/2001 and for a direction to appoint an Arbitrator in terms of Section 11 of the Arbitration and Conciliation Act, 1996.
2. It is alleged that the petitioner is a Class/special class contractor and as per the contract agreement No. 5/96-97 dated 8.5.1996, he was entrusted, the work of construction of bridge between Yethabadi-Buyyanadoddi across Shimsha river in Malavalli, Petitioner could not complete the work within the stipulated time on account of several lapses on part of respondent no. 2, Therefore by letter dated 6.6.2000 the petitioner asked for settlement of claims, but the same was not settled even after 30 days of receipt of the letter. In view of clause 29 of the Conditions of contract dated 8.5.1996, he is entitled for arbitration and hence filed C.M.P 79/2001 seeking for appointment of Arbitrator invoking Sec. 11(6) & (8) of the Arbitration Act. But the leaded single Judge holding that existence of an arbitration agreement is a condition precedent for maintaining a petition u/s. 11 of the Act, dismissed the petition as not maintainable. The same is challenged by filing this writ.
3. The learned counsel for the petitioner submits that the petitioner is entitled for appointment of an arbitrator as per clause 29 of the Conditions of Contract. He also submits that in an identical situation, this Court in W.P No. 33486/2000 filed against CM.P 1/2000, by order dated 7.4.2000 directed to appoint an arbitrator. Therefore the learned single Judge has erred in considering the decision in MYSORE CONSTRUCTION COMPANY v. KARNATAKA POWER CORPORATION LTD. (I.L.R 2000 KAR. 4953).
4. Heard the learned counsel for the petitioner and perused the materials placed on record.
5. No doubt, the Chief Justice or the designated Judge can appoint an Arbitrator invoking Sec, 11(6) as per the terms of the agreement and while appointing an Arbitrator, it is to be seen that the Arbitrator so appointed is competent, impartial and independent person and if there is any dispute or difference as contemplated in the clause, the same can be considered by the Arbitrator himself. But, at the same time it is necessary that there should be an arbitration clause in the agreement. In the instant case, the argument that clause 29 of the Conditions of Contract forms part of the contract agreement between the parties, the same cannot be construed as an arbitration agreement or that there is an arbitration clause to settle the dispute. The learned single Judge on overall consideration and considering the MYSORE, CONSTRUCTION COMPANY's case (supra) has not interfered, This Court has also in another identical case in W.A No. 975/2002, has not considered the issue in absence of arbitration clause. Hence the petitioner cannot take advantage of W.P No. 33486/2000 as in that case parties agreed to raise the dispute before the arbitrator and had no objections to consider the case. Therefore this case is not helpful. No interference is called for. The writ petition is dismissed. However, dismissal of this petition will not preclude the petitioner to approach the Civil Court for getting his grievance redressed in accordance with law.