ORISSA CONCRETE Vs. UNION OF INDIA

JUDGEMENT

(1.) Invoking the jurisdiction of this Court under Section 11 (6) of the Arbitration and Conciliation Act, 1996, read with the Scheme for Appointment of Arbitrators by the Chief Justice Chhattisgarh High Court, 2002, this application has been filed for appointment of arbitrator, by the applicant herein.

(2.) Brief facts essential to adjudicate the application are as under: - 2.1) The applicant is a company registered under the provisions of the Indian Companies Act, 1956. The non-applicant South East Central Railway (SECR) floated a tender for manufacture and supply of Prestressed Mono-Block Concrete Line Sleepers (Pre-Tensioned Type) for Broad Gauge (1673 mm) from existing RDSO Certified Concrete Sleeper Manufacturing Plants. It was processed in which the applicant also participated and purchase order was issued in favour of the applicant on 17-10-2013. Agreement was entered into on 19-12-2013. Supply was made by the applicant but, in between, dispose arose between the parties leading to invocation of arbitration clause by the applicant in terms of arbitration clause contained in clause 2900, by letter dated 14-10-2014 which was duly received by the non-applicant authorities and when arbitrator was not appointed, again the request was reiterated on 4-11-2014. When arbitrator was not appointed, this application was filed for appointment of impartial and independent arbitrator, before this Court. 2.2) On notice being issued, the non-applicant SECR has filed its reply stating inter alia that the application as framed and filed is not maintainable as it is premature having been filed on 13-11-2014 even before the expiry of 30 days. It has further been pleaded that they have appointed arbitrator on 21-11-2014 which is apparent from Annexure R-1 filed with the return which is a communication addressed by the Deputy General Manager (G), SECR to the arbitrator for adjudicating the arbitral dispute. It has also been pleaded that the arbitration clause, as agreed between the parties is a conditional arbitration clause, either the arbitration has to be by a person appointed by the authority i.e. the General Manager and has to be a Gazetted Railway Officer, and if for some reason if it is not possible, then the dispute would not be referred for arbitration at all. The arbitration clause would not survive and stand frustrated and then the applicant would be at liberty to avail the remedy under the regular civil law and will have to approach the jurisdictional court, as the remedy of arbitration in such situation would stand extinguished.

(3.) Rejoinder has been filed by the applicant stating inter alia that between the applicant and the non-applicants, identical dispute arose in Patna High Court and the Patna High Court in same facts situation has allowed the application for appointment of arbitrator and that will bind upon the non-applicants herein. In that case also, the application was filed within 30 days from the date of serving notice for appointment of arbitrator.