A27 INFRASERVICES LTD. Vs. SOUTH EAST CENTRAL RAILWAY

JUDGEMENT

(1.) The applicant has preferred this application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short 'the Act, 1996') for appointment of Arbitrator in terms of agreement dated 5-6-2009 entered into between the applicant and non-applicant for adjudication of dispute arisen between them. That, the brief facts leading to filing of this application are as under:--

(2.) Mr. Ashish Shrivastava, learned counsel appearing for the applicant would submit that there is valid and enforceable arbitration agreement between the parties in shape of Clause 2.13 an agreement read with clause 63 and 64 of the General Conditions of the Contract, and arbitral dispute has arisen between the parties with respect to deduction of certain amount from the running bill of the applicant and which has not been considered even after repeated representations in terms of agreement and request made to the respondents for appointment of arbitrator as per Clause 63 and 64 of the General Conditions of the Contract under the agreed procedure of the appointment of the arbitrator. Since, the respondent/SECR has failed to propose the name of arbitrator/failed to appoint arbitrator in terms of Clause 63 and 64 General Conditions of Contract, the independent arbitrator be appointed in accordance with law to resolve the arbitral dispute.

(3.) Mr. Abhishek Sinha, learned counsel appearing for the respondent-SECR would submit that, the present application for appointment of the arbitrator is not maintainable as the respondent has failed to first refer the dispute to the respondent-SECR by way of representation which has to be decided within 120 days under the Clause 63, and if the said reference is not decided within 120 days of his presenting the final claim, then within 180 days, only a demand of arbitration in terms of Clause 63(1)(i) can be made. In alternative Mr. Sinha would submit that arbitration agreement as contained in Clause 63(3) (a) (ii), of general condition of contract applies to the present dispute, as the claim exceeds Rs. 10 lacs. He would submit that the above arbitration clause provides for qualification and composition of the Arbitral Tribunal. One of the members of the Tribunal has to be an officer of Selection Grade of the Accounts Department. The said condition and qualification of the Arbitrators has been agreed and accepted by the petitioner and this Court while considering the application for appointment of arbitrator shall have due regard to any qualification required for the Arbitrator as per the agreement of the parties.