# M/S Progressive Construction Company v. Engineer-In-Chief & H.O.D., Pwd & Ors - **Citation:** (2026) 2 ILRA 203 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2026-02-11 - **Case number:** Civil Misc. Arbitration Application No. 19 of 2025 - **Bench:** Subhash Vidyarthi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-progressive-construction-company-v-engineer-in-chief-h-o-d-pwd-ors-54235 - **Pages:** 5 ## Text 2 All. M/S Progressive Construction Company Vs. Engineer-In-Chief & H.O.D., Pwd & Ors. 203 delays also run counter to the essence of the right to speedy trial under Article 21 of the Constitution of India, 1950. 21. In view of the above discussion, this Court finds no illegality or irregularity in the impugned order as more than sufficient opportunities of defence were provided by the trial court. Therefore, the prayer for quashing the impugned judgment and order dated 16.10.2025, as well as to quash the entire proceeding is refused. This Court is of the considered view that such matters which are affected by unnecessary delay at the ends of the parties should be expedited, and an endeavour should be made to dispose of them within the statutory period unless there are orders of the higher courts staying the proceeding. This judgment be placed before the learned District and Sessions Judge concerned. The office to do needful. 22. With the above observation and directions, the application is finally disposed of. --------- (2026) 2 ILRA 203 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 11.02.2026 BEFORE THE HON'BLE SUBHASH VIDYARTHI, J. Civil Misc. Arbitration Application No. 19 of 2025 M/S Progressive Construction Company ...Appellant Versus Engineer-In-Chief & H.O.D., Pwd & Ors. ...Respondents Issue for Consideration Issue pertains to whether, in exercise of jurisdiction u/s 11(6) of Arbitration and Conciliation Act, 1996, the High Court can appoint a sole arbitrator for adjudication of disputes between the parties, notwithstanding the arbitration agreement providing for a panel of three arbitrators, in a situation where the parties have failed to constitute the arbitral tribunal in terms of the agreed procedure and the applicant seeks such modification to reduce costs. Headnotes Arbitration and Conciliation Act, 1996 - s. 11(6) - Appointment of Arbitrator - Arbitration Clause - Deviation from agreed procedure - Failure of parties to appoint arbitrators - Power of Court - The applicant, entered into a contract dated 06.11.2015 with the opposite parties, namely the Engineer-in-Chief and others of the Public Works Department, which contained an arbitration clause (Clause 25.1.3) providing for resolution of disputes through arbitration - Upon arising of disputes, the applicant invoked the arbitration clause and requested the appointment of an arbitrator in terms of agreement - The Executive Engineer, Construction Division-II, PWD, by letter dated 06.12.2024, recommended the appointment of an arbitrator to the competent authority, however, no arbitrator was appointed by respondents in accordance with the agreed procedure - Consequently, the applicant filed the instant application u/s 11(6) of Arbitration and Conciliation Act, 1996 before the High Court seeking appointment of an arbitrator, while the respondents did not dispute the existence of arbitration agreement, nor that the Executive 204 INDIAN LAW REPORTS ALLAHABAD SERIES Engineer, by letter dated 06.12.2024, had requested the Superintending Engineer to appoint an arbitrator. Held: Although the arbitration agreement contained provision for constituting a panel of three arbitrators - one arbitrator to be appointed by each of the parties and the third arbitrator or the umpire being appointed by the two arbitrators, the parties fail to appoint their arbitrators, an application u/s 11(6) of the Arbitration and Conciliation Act, 1996 is filed and a party requests that it is not willing to bear the high cost of arbitration to be conducted by a panel of three arbitrators and in order to reduce the costs, it requests appointment of a sole arbitrator, the Court can accede to the request - Accordingly, arbitrator appointed for adjudication of the disputes between the parties, thus, application allowed. [Para 12, 13] (E-13) Case Law Cited Union of India v. Singh Builders Syndicate: (2009) 4 SCC 523; 24 Secure Services Pvt. Ltd. v. Competent Automobile Ltd. 2024 SCC OnLine Delhi 4358; referred to Jhajharia Nirman Ltd. v. South Western Railways through Dy. Chief Engineer/IV Construction reported in 2024 SCC OnLine Del 7133 - followed List of Acts Arbitration and Conciliation Act, 1996 List of Keywords Arbitration application; s. 11(6) of Arbitration and Conciliation Act, 1996; Appointment of arbitrator; Adjudication of disputes; Contract dated 06.11.2015; Arbitration clause (Clause 25.1.3); Request for appointment; Recommendation by Executive Engineer; Failure to appoint arbitrator; Existence of arbitration agreement; Panel of three arbitrators; Agreed procedure; Failure of parties to constitute tribunal; Request for appointment of sole arbitrator; Reduction of cost of arbitration; Proposed name of arbitrator; Application allowed Case Arising From ORIGINAL JURISDICTION: (Civil Misc. Arbitration Application No. - 19 of 2025) From the Judgment and Order passed by the Superintending Engineer, Hamirpur Circle, Public Works Department, Hamirpur Appearances for Parties Adv. for the Applicant: Vipul Rai Adv. for the Opposite Party: C.S.C (Delivered by Hon'ble Subhash Vidyarthi, J.) 1. Heard Shri Abhishek Dwivedi, Advocate holding brief of Shri Vipul Rai, the learned counsel for the applicant and Shri S.K. Khare, the learned Standing Counsel for the State. 2. By means of the instant application filed under Section 11(6) of the Arbitration and Conciliation Act, the applicant is seeking appointment of an arbitrator for adjudication of the disputes between the parties arising out of a contract dated 06.11.2015. 2 All. M/S Progressive Construction Company Vs. Engineer-In-Chief & H.O.D., Pwd & Ors. 205 3. Clause 25.1.3 of the agreement contains an arbitration clause. The applicant had requested the opposite parties for appointment of arbitrator as per the aforesaid arbitration clause. 4. On 06.12.2024, the Executive Engineer, Construction Division-II, Public Works Department wrote a letter to the Superintending Engineer, Hamirpur Circle, Public Works Department, Hamirpur recommended appointment of an arbitrator as per the Clause 25.1.3 but when arbitrator was not appointed in spite of this recommendation, the applicant has filed this application. 5. The opposite parties have filed objections against the application which principally contains pleas of the opposite parties disputing the correctness of the claims of the applicant. However, while deciding an application under Section 11(6) of the Arbitration and Conciliation Act, this Court is not required to examine correctness of the claims of the applicant and that has to be done by the arbitrator. 6. The State has not disputed the existence of arbitration agreement and it has not disputed that through the aforesaid letter dated 06.12.2024, the Executive Engineer had himself requested the Superintending Engineer to appoint an arbitrator. 7. As arbitrator has not been appointed by the opposite parties, occasion has arose for this Court to appoint an arbitrator. 8. The learned counsel for the applicant has stated that although the arbitration clause contains a provision for arbitration by a panel of three arbitrators, the opposite party has not appointed the arbitrators in terms of the aforesaid clause. Now, that the Court has to appoint the arbitrator, the applicant requests that to reduce the cost of arbitration, a single arbitrator be appointed in place of a Tribunal consisting of three arbitrators. 9. In Union of India v. Singh Builders Syndicate: (2009) 4 SCC 523, the appellant had challenged an order of the Delhi High Court appointing a retired Judge of the High Court as sole arbitrator to decide the disputes arising in respect of a construction contract between the Northern Railways and the respondent, whereas arbitration clause in the contract between the parties required two serving gazetted railway officers of equal status being appointed as arbitrators, one by the contractor from a panel made available by the General Manager of the Northern Railways and the other by the Northern Railways, and the two arbitrators so appointed, in turn appointing an umpire. The High Court was of the view that the matter was pending since 1999 and that the cumbersome process of constituting an Arbitral Tribunal in terms of the arbitration agreement and the delays on the part of the Railways in complying with the provisions of the arbitration agreement, led to the arbitration becoming virtually a non-starter and no useful purpose would be served by reconstituting a three-Member Arbitral Tribunal. Therefore, the High Court allowed the petition and appointed a retired Judge of the Delhi High Court as the arbitrator. The said order was challenged by filing an appeal before the Hon'ble Supreme Court The question that arises for consideration by the Hon'ble Supreme Court was whether the appointment of a retired Judge of the High Court as sole arbitrator should be set aside and an Arbitral Tribunal should again be 206 INDIAN LAW REPORTS ALLAHABAD SERIES constituted in the manner provided in the arbitration agreement. Upholding the order of the High Court and dismissing the appeal, the Hon'ble Supreme Court held that:- "13. The position after the new Act came into force, is different, as explained by this Court in Northern Railway Admn., Ministry of Railway v. Patel Engg. Co. Ltd. [(2008) 10 SCC 240] This Court held that the appointment of arbitrator(s) named in the arbitration agreement is not mandatory or a must, but the emphasis should be on the terms of the arbitration agreement being adhered to and/or given effect, as closely as possible. 14. It was further held in Northern Railway case [(2008) 10 SCC 240] that the Chief Justice or his designate should first ensure that the remedies provided under the arbitration agreement are exhausted, but at the same time also ensure that the twin requirements of subsection (8) of Section 11 of the Act are kept in view. This would mean that invariably the court should first appoint the arbitrators in the manner provided for in the arbitration agreement. But where the independence and impartiality of the arbitrator(s) appointed/nominated in terms of the arbitration agreement is in doubt, or where the Arbitral Tribunal appointed in the manner provided in the arbitration agreement has not functioned and it becomes necessary to make fresh appointment, the Chief Justice or his designate is not powerless to make appropriate alternative arrangements to give effect to the provision for arbitration." 10. The aforesaid judgment has been followed by the Delhi High Court in the case of 24 Secure Services Pvt. Ltd. v. Competent Automobile Ltd.; 2024 SCC OnLine Delhi 4358, as per the Arbitration Clause, there had to be a panel of three Arbitrators but the parties could not appoint one arbitrator each and, therefore, an application was filed under Section 11(6) of the Act. The Delhi High Court held that: - "22. In Union of India (UOI) v. Singh Builders Syndicate, (2009) 4 SCC 523 the High Court rejected the contention on behalf of the Government that the Court was not vested with any powers to appoint a Sole Arbitrator in distinction to the Arbitration Agreement which provided for the Tribunal of three members. The Apex Court upheld the order of this Court appointing a Sole Arbitrator by observing that the appointment of the Sole Arbitrator was valid. 23. In view of the submissions made as well as Clause 7 of the Services Agreement dated 16.08.2021 which provides for arbitration and the petitioner has raised the arbitrable disputes and without prejudice to the rights and contentions of the parties, the present petition is allowed. Mr. Sidharth Sharma Adv. Mobile No. 7400111111, is hereby appointed as the Arbitrator to adjudicate the disputes between the parties." 11. This decision has been followed by Delhi High Court in the case of Jhajharia Nirman Ltd. v. South Western Railways through Dy. Chief Engineer/IV Construction reported in 2024 SCC OnLine Del 7133 wherein also, the arbitration clause contained a stipulation of appointment of an Arbitral Tribunal consisting of three arbitrators but the parties had failed to constitute the Tribunal by consent. 12. I find myself in agreement with the aforesaid decision taken by the Delhi High court in the aforesaid cases and I am also of the view that although the arbitration agreement contained provision for constituting a panel of three arbitrators ? one arbitrator to be appointed by each of the 2 All. M S Kalicharan Pandey & Company Vs. Union of India & Ors. 207 parties and the third arbitrator or the umpire being appointed by the two arbitrators, the parties fail to appoint their arbitrators, an application under Section 11(6) of the Act is filed and a party requests that it is not willing to bear the high cost of arbitration to be conducted by a panel of three arbitrators and in order to reduce the costs, it requests appointment of a sole arbitrator, this Court can accede to the request. 13. Accordingly, I propose the name of Hon'ble Mr. Justice V. K. Mathur (Retd.), a former Judge of this Court, resident of Flat No.- 203, Samiah Melrose Square, Vrindawan Colony, Sector 6C, Near C.N.G. Pump, Lucknow (U.P.) / 304, Radium Apartments, New Hyderabad, Lucknow, U.P., Mobile Nos. 8004928876, 9717779924 to act as an arbitrator for adjudication of the disputes between the parties. 14. Office is directed to communicate this order to Hon'ble Mr. Justice V. K. Mathur for obtaining his consent. 15. List after receipt of service. ---------- (2026) 2 ILRA 207 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 11.02.2026 BEFORE THE HON'BLE PIYUSH AGRAWAL, J. Arbitration And Conciliation Appl. U/S11(4) No. 33 of 2024 M S Kalicharan Pandey & Company ...Appellant Versus Union of India & Ors. ...Opposite Parties Issue for Consideration Issue pertains to whether, in exercise of powers u/s 11(6) of Arbitration and Conciliation Act, 1996, the High Court is required to appoint a sole Arbitrator upon prima facie satisfaction of the existence of a valid arbitration agreement between the parties and the failure of the parties to mutually agree upon such appointment, without delving into the merits of the underlying dispute. Headnotes Arbitration and Conciliation Act, 1996 - s. 11(6) - Appointment of Arbitrator - Arbitration Agreement - Arbitration Clause - Appointing Authority - Scope of - The applicant, invoked the arbitration clause contained in the agreement between the parties by issuing a notice dated 11.08.2023 to the respondents, namely the Union of India and others, seeking resolution of disputes through arbitration - The respondents, however, vide reply dated 10.10.2023, denied the invocation of arbitration - In view of existence of disputes between the parties and the failure to arrive at a consensual appointment of an arbitrator in terms of agreed procedure, the applicant instituted the instant application u/s 11(6) of Arbitration and Conciliation Act, 1996 before the High Court for appointment of a sole arbitrator.