ORDER :

Heard Mr. Kshitij Sharma, learned counsel for the petitioner. Also heard Mr. H.S. Ahluwalia, learned counsel, appearing for the respondents.

2. By this application under Section 11(6) of the Arbitration and Conciliation Act, 1996, (for short’ ‘the Act of 1996’), the petitioner prays for appointment of an Arbitrator in connection with a Contract Agreement No.19/CEE/CON/SECR/BSP/2015, dated 07.12.2015, entered into by the petitioner and the respondent No. 3, for executing a contract of “Conversion of 33KV overhead line (of CSEB) to underground cable at PP Yard Bhilai in SEC Railway, Raipur Division”.

3. The Contract Agreement provides that the Indian Railways Standard General Conditions of Contract would be applicable to the Contract Agreement unless specifically mentioned otherwise. Clause 64. (3)(a)(ii) of the General Conditions of the Contract provides for appointment of an Arbitrator in respect of claims over Rs.25 lakhs.

4. There was a dispute relating to release of payment to the petitioner and in connection with a letter dated 10.05.2018, issued by the respondents informing the petitioner that the petitioner had failed to start the work and had also not applied for extension and further informing that in the event of petitioner not mobilizing men and machinery within a period of seven days, steps would be taken to terminate the Contract Agreement. By letter dated 15.05.2018, the petitioner prayed for release of payments and short close the contract. No action having been taken by the respondents, the petitioner by letter dated “22.04.2018” had demanded for appointment of an Arbitrator. Obviously, that date was wrongly recorded as under the heading “Ref”, reference was made to the letter dated 10.05.2018. From the postal receipt, it is seen that the letter was sent on 16.05.2018.

5. A letter dated 31.05.2018 was sent by Deputy General Manager (G) to the petitioner on the subject of modification to Clause 64 of General Conditions of Contract, 2014 for implementation of the Arbitration and Conciliation (Amendment) Act, 2015 and asking the petitioner to send option pursuant to introduction of section 12(5) of the Act of 1996 in the prescribed format so as to enable the respondents to take necessary steps in connection with appointment of an Arbitrator.

6. It will be appropriate to extract the relevant extract of the letter dated 31.05.2018:

“Reg: Modification to Clause 64 of General Conditions of Contract – 2014 for implementation of Arbitration and Conciliation (Amendment) Act 2015

Ref: 1. Your letter No.RGS/2018-19/SECR-CA-19-2016/326 dated 22.04.2018

2. Railway Board’s letter No. 2015/CE-I/CT/ARB/18 dated 11th November, 2016

In connection with your representation under reference 1, it is to state that in the light of Modification to Clause 64 of General Conditions of Contract -2014 some new sub clauses have been incorporated by the Railway Board, out of which two clauses i.e. Clause 64.(1)(ii) (b) and Clause 64.(3)(b) are re produced as under:

Clause 64.(1)(ii)(b):

“The parties may waive off the applicability of subsection 12(5) of Arbitration and Conciliation (Amendment) Act 2015, if they agree for such waiver, in writing after dispute having arisen between them, in the format given under Annexure XII of these conditions”.

Clause 64.(3)(b): Appointment of Arbitrator where applicability of Section 12(5) of A&C Act has not been waived off:

“The Arbitral Tribunal shall consist of a panel of retired Railway Officer, retired not below the rank of SAG Officer, as the arbitrators. For the purpose, the Railway will send a panel of at least (4) names of retired Railway Officer(s) empanelled to work as Railway Arbitrator duly indicating their retirement date to the contractor within 60 days when a written and valid demand for arbitration is received by the GM.

Contractor will be asked to suggest to General Manager at least 2 names out the panel for appointment as contractor’s nominee within 30 days form the date of dispatch