T SRINIVASA RAO Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE two applications can be dealt with together and decided not merely because the parties to the dispute are the same, but because they arise out of common set of facts.

(2.) THE applicant in both the cases is the contractor while the respondents are the indian Railways and its officers. Two civil engineering works viz. , " (1) Proposed high level platform on down loop at Nellore (2) Proposed remodeling of Station building, additions and alterations to sub-way at nellore" have been awarded to the applicant. Consequently two separate agreements (1) Agreement No. 16/s/bza/89, dated 28. 3. 1989 and (2) Agreement No. 68/s/bza/ 88, dated 15. 6. 1988 respectively concerning the above two works have been executed by and between the parties. According to the applicant, for reasons wholly attributable to the respondents such as not finalizing and furnishing the drawings and the necessary technical details and specifications, the execution of the works were got delayed considerably. The applicant further asserts that the final bill has not been prepared promptly and paid for. Hence, he has invoked the provision available in the contract for the purpose of resolution of disputes by seeking a reference to arbitration. The dispute was referred to a sole arbitrator, sri B. Gopi Singh, Dy. CSTE/projects on 15. 3. 2000. But, however, on 3. 9. 2002, the chief General Engineer acting on behalf of the General Manager of the South Central railway has constituted an Arbitral Tribunal comprising of Sri Arun Malik, Chief Engineer/ c-ll/secunderabad as Presiding Officer, sri Y. T. Varma, Dy FA and CAO/hq/sc as joint Arbitrator and Sri B. Sambi Reddy, cste/projects/scs as a Joint Arbitrator and referred all the disputes arising out of the aforesaid two agreements for adjudication. On 16. 3. 2005, again the constitution of the arbitral Tribunal has been altered replacing sri Y. T. Varma with Smt. Malabika G. Mohan, sr. DFM/sc Division/secunderabad. This tribunal entered upon the reference and through their communication dated 17. 8. 2005 directed the Senior Divisional Engineer, south Central Railways, Vijayawada to submit the defence statement/counter claim statement immediately, to the statement of claim lodged by the applicant herein, without any further delay, else the case would be dealt with ex parte. It is stated that, subsequently, Sri B. Sambi Reddy has since resigned from the service of the Indian railways while Smt. Malabika G. Mohan has been posted as a Vigilance Officer and consequently preferred not to be a Member of the Arbitral Tribunal due to change of her duties and responsibilities brought about since then. The present application has, therefore been filed after putting the General manager, South Central Railway on notice dated 26. 3. 2008, since the General Manager has not reconstituted the Tribunal.

(3.) THE present arbitration application has been moved on 14. 7. 2008. Notice was ordered returnable in four weeks on the said application on 7. 8. 2008. The Railways have since filed their counter affidavit raising the following important objections: