The widest amplitude of the arbitration clause and the examination of the existence, validity, scope, and applicability of the arbitration clause by the arbitrators.

MANMOHAN, J.

I.A. 24269/2015 in CS(OS) 1540/2015

1. Present application has been filed by the defendants No.1 to 5 under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “said Act”) for referring the disputes raised in the present plaint to arbitration. However, in the prayer clause in the application, it has been prayed that the plaintiff’s present suit be dismissed and the plaintiff be asked to request GM Northern Railway for appointment of an arbitrator.

2. It is pertinent to mention that the present suit has been filed by the plaintiff for recovery of Rs.2,00,32,356 along with interest.

3. In the application, it is averred that Clause 37(v) of the Agreement dated 09th September, 2010 provides that in the event of any question, dispute or difference arising under the said Agreement, the dispute shall be referred to Arbitration. According to learned counsel for the applicant-Railways, as there is a dispute between the parties, the matter needs to be referred to arbitration. The arbitration clause contained in the Agreement dated 09th September, 2010 is reproduced hereinbelow :-

"37. Miscellaneous

xxxx xxxx xxxx xxxx

(v) In the event of any question, dispute or difference arising under this agreement or in connection with this contract except as to any matters the decision of which is specially provided for by the terms and conditions for this agreement), the same shall be referred to the sole arbitration of the Gazetted Railway officer appointed to be the Arbitrator by the General Manager, Northern Railways. The Gazetted Railway officer to be appointed as Arbitrator however, will not be one of those who had an opportunity to deal with the matters to which the contract relates or who in the course of his duties as Railway servant has expressed views on all or any of the matters under dispute or difference subject to the provision of the Arbitration and Conciliation Act, 1996. The award of the Arbitration shall be final and binding on the parties to this contract."

4. Per contra, learned counsel for plaintiff stated that plaintiff had not raised any dispute which can be considered within the scope of Section 8 of the said Act. He stated that the sole purpose and scope of agreement dated 09th September, 2010 was payment of freight to defendants No.1 to 5 by electronic mode so that immediate payment could be received by them. He contended that Clause 37(v) of the Agreement dated 9th September, 2010 was applicable to any question, dispute or difference arising under or in connection with the said Agreement and in the present case there is no such question, dispute or difference between the parties as the parties are in fact ad idem on the illegal deduction and appropriation of Rs.1,48,93,945/- by the defendants No.1 to 5. According to learned counsel for the plaintiff, this was a fit case for decree on admission under Order 12 Rule 6 CPC. Learned counsel for the plaintiff placed reliance on order dated 10th April, 2013 passed by the Northern Railway itself wherein it held that the deduction of Rs. 1,48,93,945 made by it on 30th March, 2012 from the plaintiff’s e-payment account for payment of only rail haulage charges/freight was unauthorised and without any basis. He stated that the Northern Railway had specifically constituted a committee to examine the legality of this deduction which gave a report dated 19th February, 2013 stating that since the said siding is notified for charging of freight on through distance basis, the shunting charges raised against the plaintiff had been incorrectly levied. The order also recorded the findings that the commercial department of the railways had maintained all along that the said charges were inadmissible and that the said deduction was unauthorised and without any basis and was thus illegal. He stated that the illegal deduction was made in the Freight Operation Information System (FOIS) by making a handwritten addition by someone who remained unid