P.K. Bahri, J.
(1) This is a petition under Section 20 of the Arbitration Act requiring the filing of the agreement in Court and for appointment of arbitrator inaccordance with the terms of the arbitration clause and for reference of disputes raised in the petition to the Arbitrator for deciding the same in accordance withlaw.
(2) There has been a contract between the parties which contains an arbitration clause to the following effect.
"ALL disputes and differences of any kind whatever arising out of or in connection with the conduct of the carrying out of the works (whether during the progress of the works or after their completion, and whether before or after the determination, abandonment or breach of the contract) shall be referred to and settled by the architects who shall state their decision inwriting. Such decision may be in the form of a final certificate or otherwise.The decision of the Architect with respect to any of the excepted matters shall be final and without Appeal as stated in Clause No. 33. But if either the Employer or the Contractor be dissatisfied with the decision of the Architect or any matter, question or the dispute of any kind (except any of the exceptedmatters) or as to the withholding by the Architect of any certificate to which the contractors may claim to be entitled, then and in any such case either party(the Employer or the Contractors) may within 28 days after receiving notice to such decision give a written notice to the other party through the Architects requiring that such matters in dispute be arbitrated upon. Such written notice shall specify the matters which are in dispute and such dispute or difference of which such written notice has been given and no other shall be and is hereby referred to the arbitration and final decision of a single arbitrator being a Fellow of the Indian Institute of Architects to be agreed upon and appointed by both the parties or in case of disagreement to the appointment of a singlearbitrator, to the arbitration of two Arbitrators being both Fellow of the Indian Institute of Engineers of equivalent one to be appointed by each party, which arbitrators shall before taking themselves the burden of reference appoint an Umpire."
(3) This petition is contested by the respondent on the sole ground that the petitioner has not invoked the arbitration clause in accordance with the terms of the said clause and thus the petition is not maintainable. It is pointed out that the arbitration clause contemplates that petitioner has to give a notice in writing in which the disputes sought to be raised for arbitration were to be detailed out and such a notice was to be given through the architect to the respondent and this step has not been taken by the petitioner, thus the arbitration clause cannot be invoked by filing a petition under Section
(4) Similar arbitration clause came up for consideration before this Court in the case of Mis. Sikand Construction Co. v. State Bank of India, 2nd (1979) I Delhi364. The Court held that writing a letter to the architect is directory provision in an arbitration clause and in the said case despite no such letter being written by the party for invoking the arbitration clause in the manner contemplated in the arbitration clause, still the Court held that in view of the provisions of Section 20 of the Arbitration Act what the Court has to consider is whether the parties have entered into an arbitration agreement and if so, whether there is any sufficient ground for not referring the matter for arbitration and if it is proved that there is an agreement for arbitration then the Court has to direct the filing of the arbitration agreement and appoint the arbitrator in accordance with the arbitrationclause.
(5) In that case also the directions were given to the parties to appoint an arbitrator in consonance with the arbitration clause. In the present case, admittedly,the contract out of which the disputes arise contains the arbitration clause and thus I hold that the matter is liable for reference in accordance with the arbitrationclause. In the present case, the petitioner had on his own appointed his arbitrator and had sent a communication to the respondent to appoint his arbitrator. the arbitration clause did not contemplate that in the very first instance, the petitioner could appoint his own arbitrator. As was required by the arbitration clause that parties have to agree for appointment of a single arbitrator who is Fellow of the Indian Institute of Architects failing which each party was to nominate its arbitrator who was also to be a Fellow of the Indian Institute of Architects and those two arbitrators were then to appoint an Umpire.
(6) So, I allow this petition and direct that the agreement be filed in Court and require the parties to agree and appoint a single arbitrator who is a Fellow of the Indian Institute of Architects within one month from today failing which each party shall appoint its own arbitrator within two months thereafter and the said twoarbitrators, before entering upon reference, shall appoint an Umpire and on sucharbitrator/arbitrators/arbitrator-cum-Umpire being appointed, the disputes mentioned in the petition shall stand referred for arbitration.
(7) I make it clear that in case the parties fail to agree for appointment of a particular common arbitrator and petitioner gives a notice appointing his arbitrator, the respondent, if fails to appoint an arbitrator within one month of receiving of such notice, then the arbitrator appointed by the petitioner shall act as sole arbitrator.