EXCEL ENGINEERING ENTERPRISES Vs. GENERAL MANAGER SOUTHERN RAILWAY

JUDGEMENT

(1.) These Original Petitions have been filed to appoint a sole Arbitrator to adjudicate on the disputes that have been arisen between the Petitioner and the Respondents in Agreement No.23 dated 25.04.2017 and Agreement No.MTMY/MTP/DY CE/05-16 dated 02.02.2017 respectively.

(2.) It is the case of the Petitioner in O.P.No.285 of 2019 that he was awarded the construction of road under bridge with RCC Box of internal dimension of 11.40m * 5.50m Square alignment in lieu of LC No.81 at Km197/36-198/8 near Vaniyambadi Yard by Box Pushing method. Agreement was executed on 25.04.2017 for the work value of Rs.6,92,10,176/- The period of completion of the work was fixed at ten months. During the currency of the contract, the site was not handed over to the petitioner. The work involved construction of subway in lieu of level crossing. The level crossing was closed only during September 2017, whereas the contract itself expired by 30.8.2017. Excavation work commenced on 18.1.2018; during the course of excavation, there was heavy seepage of water and the water had to be bailed out frequently. The Petitioner had addressed letter dated 26.06.2018 to the respondents but no reply was received. On 27.7.2018 joint inspection was conducted by the Collector of Vellore along with Municipal Engineer and Railway Engineer; even then no action was initiated for the diversion of the open drain. Hence the petitioner addressed letter dated 9.9.2018 to the Chief Engineer construction, to foreclose the agreement. Again by letter dated 23.10.2018 the petitioner requested for withdrawal of the 7 days notice issued to him. But no reply was ever received by the petitioner to the above communications. Finally, the Petitioner on 25.10.2018 addressed to the 1st Respondent sought appointment of arbitrator to resolve the dispute. The Respondents instead of appointing Arbitrator, through their letter dated 13.11.2018 sought for a declaration by the Petitioner to waive off applicability of Sections 12(5) and 31-A(5) of the amended Arbitration and Conciliation Act, 1996. The Petitioner expressed their unwillingness to waive the statutory protection by letter dated 21.11.2018. Therefore it is the contention that an independent Arbitrator has to be appointed.

(3.) It is the case of the Petitioner in O.P.No.516 of 2019 that he was the successful tenderer for the execution of the work viz., 'Chennai Beach ' Korukupet Section ' Laying of 3rd and 4th lines between Chennai Beach and Korukkupet Stations ' Earth work in cutting, Forming bank, Blanketing, Regarding Construction of Platforms, Transportation of Permanent way materials, Transportation of debtris, Construction of Service building, Platform shelter, compound wall, drain, dismantling of existing buildings and existing compound wall and other allied works. Letter of Acceptance was signed on 20.09.2016 for the work value of Rs.6,68,73,958/-. The period of completion of the work was fixed at nine months. As the clearance work spilled over into the Petitioner-s schedule and the Petitioner was not given the required site for execution of the tendered work, the Petitioner requested for extension of time to complete the work. Despite extention of time, the Respondents could not provide site for execution of the tendered work. As the dispute arose between the parties, the Petitioner by letter dated 29.01.2019 addressed to the 1st Respondent sought appointment of Arbitrator to resolve the disputes. The Respondents instead of appointing Arbitrator, through their letter dated 13.02.2019 sought for a declaration by the Petitioner to waive off applicability of Sections 12(5) and 31(5) of the amended Arbiration and Conciliation Act, 1996. The Petitioner expressed their unwillingness to waive the statutory protection by letter dated 26.06.2019. Therefore it is the contention that a independent Arbitrator has to be appointed.