( 1 ) THE applicant is a Railway Contractor. He filed his Arbitration Application under section 11 (6) of the Arbitration and conciliation Act, 1996, for appointment of an Arbitrator for adjudication of the claims/ disputes, which arose between him and the respondents.

( 2 ) THE applicant was awarded a contract under an agreement dated 27-10-1998. The nature of the work is guntakal-Wadi section, replacement of bridge timbers with new steel channel sleepers for Br. No. 1017 at km 536/4-537/5 (36 x 19. 20 M "g"), between Mantralayam Road - Hanumapur (1092 sleepers of 2. 6m length) . The value of the work is Rs. 58,26,960. 00. The work was to be completed within six months. As the respondents did not supply the material required for executing the work, the applicant could not complete the work in time, and the currency of the contract was extended. The applicant completed the work on 26-9-2000. Though the applicant received some payments, he raised certain claims, and in that regard a lot of correspondence took place between the applicant and the respondents. The applicant though got issued a legal notice dated 18-12-2001 requesting the respondents to appoint an arbitrator for adjudication of the claims/ disputes, no action was taken thereon. Therefore, he filed the present Arbitration application.

( 3 ) ON behalf of the respondents, the senior Divisional Engineer, has filed counter denying the averments made by the applicant. It is stated that the applicant completed the work on 26-9-2000 and the final bill submitted by him was also paid. The applicant also gave a No-Claim certificate, as required under Clause 43 (2) of the General Conditions of Contract, stating that he has no claims against the respondents-Railways. Further, the No- claim Certificate given by the applicant in terms of Clause 43 (2) of the General conditions of Contract, falls under "excepted matters", which are excluded from the scope of arbitration as per clause 63 of the General Conditions of contract, and therefore, the applicant cannot be allowed to raise any claims. It is, however, stated that even assuming that there are disputes between the parties, the respondents-Railways should be given the option of appointing an Arbitrator.

( 4 ) HEARD the learned counsel for the applicant as well as the learned counsel for the respondents.

( 5 ) THE learned counsel for the applicant would submit that though the applicant completed the works under the agreement, the respondents have not paid him the full amounts, which he had incurred in respect of the claims now raised by him. He would further submit that though the applicant invoking the arbitration clause in Clause 63 of the General Conditions of Contract, got issued a notice to the respondents calling upon them to appoint an Arbitrator for adjudication of the claims raised by him, no action has been taken thereon, and therefore, the applicant seeks appropriate directions.

( 6 ) HE would further submit that since the claims raised by the applicant are arbitrable, the respondents have no other option but to appoint an Arbitrator when an application in that regard was made by the applicant and inasmuch as the respondents have failed to appoint an Arbitrator despite receiving the notice, they have waived their right to appoint an Arbitrator, and therefore, this court should appoint an Arbitrator as prayed for by the applicant, and in support of this submission, he placed reliance upon the judgment of the Supreme Court in m/s. Konkan Railway Corpn. Ltd. v. M/s. Rani constructions (P) Ltd.

( 7 ) ON the contrary, the learned counsel for the respondents-Railways would contend that the applicant while receiving the final bill gave a No-Claim Certificate to the respondents in terms of Clause 43 (2) of the General Conditions of Contract, stating that he has no claims against the Railways, and therefore, he is precluded from raising any fresh claims in respect of the same agreement. He would further conten