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Suit No.110 of 1986, decided on 22nd October, 1986.

----Ss.12 & 20--Appountment of sole arbitrator Contract between parties clearly embodying arbitration clause according to which in event of any dispute between parties, matter would be referred to decision of sole arbitrator--High Court thus, accepting application under Ss. 12 & 20 directed appointment of sole arbitrator.

Sheikh Muhammad Usman for Plaintiff.

Date of hearing: 22nd October, 1986.

This is an application for appointment of arbitrator under section 12 read with section 20 of the Arbitration Act, 1940.

2. The case has a chequered history. The plaintiff had submitted his tender for the work of carrying out the maintenance of Civil Hospital for the year 1972-73 which was accepted by respondent No. 2 on behalf of respondent No.1 by letter dated 23-9-1972. In pursuance of tile said acceptance, the applicant signed the relevant tender documents and an agreement which contained a clause for referring the dispute to an arbitration. Respondent No.3 by letter dated 30-11-1972 asked the applicant to carry out additional work assuring him that extra payment would be made to him. The applicant as alleged, carried out the entire work in the contract including the said additional work. A final bill for Rs.44,902 was submitted by the applicant to the respondents which remained unpaid to the plaintiff. A further claim of Rs.5,00,000 for damages was also lodged by the applicant with the respondents.-Having received no payment, the applicant on 20-2-1975, invoking the' Arbitration Clause, requested respondent No.4 for appointment of an Arbitrator. After a long correspondence, respondent No.4 by his letter dated 11-11-1979 appointed the Superintending Engineer, Provincial Building Circle, Karachi as Sole Arbitrator, but the Arbitrator did not make any Award despite several reminders and notices sent by the applicant. In fact, he did not even issue any notice to the parties to appear before him. In these circumstances, the applicant filed Judicial Miscellaneous Application No.18 of 1981 against the respondents in this Court praying therein that the Arbitration Agreement be filed in Court and dispute be referred to another Arbitrator after removal of the said Arbitrator. The respondents were served' with the notice but none appeared on the date of hearing. Thus, the said application was granted ex parte it was ordered that the Sole Arbitrator be removed. The Court further directed the respondents to file Arbitration Agreement in the Court and the appointing authority should nominate another Arbitrator in terms of the Arbitration Clause within one month. It was further observed that in case no Arbitrator is appointed, as directed within the specific period, it will be open to the applicant to make an application to the Court for appointment of the Arbitrator. The respondents, however, filed a High Court Appeal bearing No.121 of 1981 against the said judgment but the same was dismissed for non-prosecution by order dated 22-11-1983. After dismissal of the aforesaid appeal, tile applicant again approached respondent No.4 requesting him to appoint some Arbitrator in compliance of this Court's order dated 30-9-1981 but the said respondent failed and neglected to appoint the Arbitrator or file tile Arbitration Agreement as directed by this Court. Being compelled with the sheer force of circumstance, the applicant has now filed the above application on 12-12-1985.The respondent alongwith counter-affidavit of the Executive Engineer have filed a photostat of the copy of Contract/ Agreement on Form by Public Works Department, embodying the condition of contract wherein there appears an Arbitration Clause that in the event of any dispute, the same shall be referred to the decision of the Sole Arbitrator to be appointed by the Chief Engineer/ Incharge of the works from the officer of the department, not below the rank of Superintendent Engineer, whose decision shall be final and binding on the parties.

3. In the circumstances, as aforesaid, Mr. Justice (Retired) Agha Imdad Ali is now appointed as Sole Arbitrator. The fee will, be determined by the learned Arbitrator himself.

4. On my enquiry about the original Contract /Agreement, Mr. Muhammad Zakir Khan submitted that the original contract was sent to the Advocate-General's office in connection with the earlier case, Judicial Miscellaneous Application No.18 of 1981. The respondents are further directed to file the original contract within 15 days, failing which the photostat copy of the contract already filed by them is to be acted upon as substitute thereof.

5. The award be made within four months.

6. The suit is disposed of accordingly.

H.B.T./Z-6/K Application allowed.

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