The main legal point established in the judgment is the interpretation of the arbitration agreement, the scope of interference at the referral stage, and the jurisdiction of the court under Section 11 of the Arbitration and Conciliation Act, 1996.

ORDER

Mukta Gupta, J. - By these two petitions, the petitioner seeks appointment of a Sole Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('Act' in short) to arbitrate the disputes between the parties.

2. According to the petitioner, the respondent No. 1 awarded the work of manufacturing of sleepers to the petitioner vide letter dated 17th October 2013. The original delivery period for completing the supply against the subject contract was two years and thirty days and the total number of sleepers to be supplied were 1,40,750 at the rate of ? 1589/- each. Thus, the total value of the contract was ? 22,36,51,750/-. According to the petitioner, the sleepers were manufactured as per the specifications prescribed by the respondents. Further before the sleepers were dispatched the same were duly approved by the officials of the respondents. The officials of CBI visited the manufacturing unit of the petitioner at Kapa on 10th October 2014 followed by the termination of the contract by the respondents vide their letter dated 18th November 2014. The petitioner thus invoked arbitration in respect of the illegal termination of the contract and claim in respect of the sleepers already supplied to the respondent. The petitioner also sought reliefs under Sections 9 and 11 of the Act, wherein, vide order dated 11th August 2017, a Sole Arbitrator was appointed and the award was published on 3rd February 2019 declaring the termination of the contract as illegal. Further, the CBI also filed a closure report in respect of its case RC1242015A0001/2015 which was duly accepted by the learned Trial Court.

3. The claim of the petitioner in these two petitions is regarding the manufactured sleepers delivery whereof was not taken by the respondent No. 1 claiming that the same will have to be retested. In this regard, contention of learned counsel for the petitioner is that despite the various communications, officers of the respondents failed to retest the sleepers at the factory of the petitioner and failed to pay the requisite amount for the manufacturing carried out by the petitioner, for the reason, the sleepers were manufactured as per the specifications of the respondents and could not used in any other activity.

4. Besides refuting the claim of the petitioner, the respondents have objected to the maintainability of the present petitions claiming that for the same contract, an Arbitrator had already been appointed who had already published an award dated 3rd February 2019 and thus, a fresh claim arising out of the same dispute cannot be entertained and therefore, the respondents rejected the request of the petitioner for appointment of an Arbitrator on 19th February 2020. Without prejudice, it is further stated that in any case, the claim now raised by the petitioner is time barred as also barred by the principle of res judicata and there being no subsisting contract between the parties as the contract in question was terminated on 18th November 2014, no Arbitrator can be appointed.

5. Learned counsel for the petitioner refuting the contentions of learned counsel for the respondents submits that in the earlier arbitration proceedings, the claim of the petitioner was to the illegal termination and amount unpaid for the sleepers' delivered by the petitioner to the respondents. As regards the sleepers manufactured and kept in the petitioner's premises are concerned, since the same was subject to retesting by the respondents, the cause of action to raise the claim for the said sleepers did not arise at that stage and hence, the present petitions seeking invocation of arbitration for the disputes now arising is maintainable. He further states that since the respondents failed to retest the sleepers lying in the premises of the petitioner, the claim of the petitioner cannot be held to be time barred.

6. Clause 2900 of the agreement between the parties which provides for arbitration reads as under: -

"Clause 2900 Arbitration-

(a)