VARANASI STEELS Vs. GENERAL MANAGER EAST CENTRAL RAILWAY

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE petitioner has come to this Court under Section 11 of the Arbitration and Conciliation Act, 1996. It is submitted by the petitioner that as a dispute has arisen between the parties the matter may be referred to an arbitrator to be appointed by the Court. Referring to paragraph 2900 learned counsel for the petitioner submits that despite service of notices upon the respondents they failed to act in the matter therefore the Court should appoint the arbitrator. On the other hand learned counsel for the respondents submits that the agreement entered into between the parties does not provide for any time limit therefore, the respondents can appoint the arbitrator at any point of time. According to them on 3.5.2004 the Deputy General Manager (G), for General Manager, Eastern Central Railway, Hajipur has appointed the arbitrator and under these circumstances the application deserves to be rejected.

(3.) AT this stage strong reliance is placed on Section 11(6) of the Act to contend that where under an appointment procedure agreed upon by the parties, a party fails to act as required under that procedure etc., a party may request the Chief Justice or any person or institution designated by him to Jake the necessary measures etc. Assuming provisions of subsection (6) apply then too the arbitrator will have to be appointed by the Chief Justice or any person designated by him because in the present case the party -respondent failed to act as required under the said procedure. It is also to be seen that notice dated 2.3.2003 (Annexure -3) was served upon the respondent in March, 2003 and they did not care to come out of their slumber nor did they appoint an arbitrator. It is only after the notices from the Court 'sside were served upon them the respondents entered in a reference and are now exercising their right to appoint the arbitrators. In the opinion of this Court, there are no bona fides in the action of the respondents. They cannot be allowed to play hot and cold at the same time; on one side they were not ready and willing to appoint the arbitrator and after service of the notice now are showing their eagerness. It is further to be seen that an arbitrator has to be appointed by the General Manager in the case of contracts entered into by the Zonal Railways and production units. In the present matter the order of appointment has not been issued by the General Manager. The order has been issued by the Deputy General Manager for General Manager. Clause 2900 does not authorise the General Manager to delegate his powers upon any person under the authority of the General Manager to appoint the arbitrator. The original letter wherein the General Manager had issued any directions has not been filed in the Court therefore, this Court will have to accept the letter dated 3.5.2004 and must observe that Mr. S.K. Sagar, Dy. General Manager (G), acting for and on behalf of the General Manager has nominated the arbitrator.