TRIBHUWAN ARORA Vs. GENERAL MANAGER, EAST CENTRAL RAILWAY

JUDGEMENT

(1.) The above request is made by the identical contractor with respect to two different works awarded under the same contract. In Arbitration Request Case No.124 of 2022 the work on which dispute arose is between 147.292 k.m. to 150.392 k.m. In Request Case No.125 of 2022, the work on which dispute arose is between 138 k.ms. to 147.292 k.ms. The agreement in Request Case No.124 of 2022 is numbered as Agreement No.ECR/CAO/Con/WT/452 and in Request Case No.125 of 2022 it is numbered as Agreement No.ECR/CAO/Con/WT/451 arising out of Tender No.150 of 2007-08 pertaining to the earth work in cutting filling, blanketing work, construction of minor bridge, protection works and other Miscellaneous Works (excluding tunnel portion) of Barkakana Ranchi Sec. in connection with Koderma-Ranchi New BG Rail Line Project.

(2.) It is alleged that due to failure of the Railways to comply with its part of the contract there was delay in execution of the work and the completion was extended time and again and lastly upto 31/3/2014. The contract was also terminated with effect from 31/3/2014 by a communication dtd. 9/4/2016. The Railway proceeded with an ex parte measurement of the work done and the petitioner filed writ petition against the termination which was disposed of directing invocation of the arbitration clause. The petitioner sent a notice of arbitration which was not responded to. The respondent Railways has filed a counter affidavit alleging that the ex parte measurement was carried out only as the petitioner failed to respond to the notice. The contention regarding failure of the Railways to comply with the terms of the contract is stoutly denied. It is pointed out that despite proffering four names for appointment of arbitrator, the petitioner has failed to nominate two persons from the aforesaid panel.

(3.) That the dispute is arbitrable is admitted by both parties. The specific arbitration clause is found as Clause-64(3)(b) in the General Conditions of Contract of 2014. The said Clause is extracted hereunder: