1. Heard Mr. R. Hussain, learned counsel appearing for the petitioner. Also heard Mr. U. K. Nair, learned Senior Standing counsel, N.F. Railway, appearing for the respondents.

2. Pursuant to a Notice Inviting Tender issued by the N.F. Railway in which the petitioner had participated, the offer of the petitioner dated 20.11.2009 was accepted on negotiation and, accordingly, the work, namely, “At Manu Depot-supply of 50MM size machine crushed track ballast from private quarry as per Railway Board’s specification June/2004 including loading between Manu-Agartola section including development of ballast stacking area at depot under the jurisdiction of Assistant Divisional Engineer/II/Badarpurghat”, was awarded to the petitioner at a total cost of Rs.6,98,48,137.56. An Agreement of Works, being Contract Agreement No. SE/83 was also entered into by the petitioner and the Railways on 20.07.2010.

3. The contract was terminated by the Railway by a letter dated 03.06.2014 in terms of Clause 6.2 of the General Conditions of Contract. The said letter dated 03.06.2014 recited that the petitioner had taken no action to commence the work/show adequate progress of work and that a notice had been issued in that connection on 20.05.2014. Consequent upon termination of the contract, the petitioner had submitted the final claim vide letter dated 15.07.2014 amounting to Rs. 2,97,67,520.00 with damages @18% per annum from the date of final claim till payment. In response to the said letter dated 15.07.2014, the Divisional Engineer-II, for DRM (Works), issued a letter to the petitioner on 06.08.2014 stating therein that the Contract Agreement was entered into between N.F. Railway and M/s Shyamlal Tusnial and, therefore, correspondences ought to be made in the name of M/s Shyamlal Tusnial and not by SLT Infracon Private Ltd. as renaming of M/s Shyamlal Tusnial was not approved by competent authorities of the Railways. The claim made by the petitioner was also disputed. However, it was indicated that the petitioner may demand for arbitration to be conducted by the Railways for disputes, if any, and if the demand of the petitioner is accepted by the Railways, the claim shall be adjudicated by the arbitrators only.

4. After receipt of the said letter, the petitioner got a notice dated 02.09.2014, under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, ‘Act’), issued through a lawyer for appointment of arbitrator/arbitrators in relation to disputes arising out of the Contract Agreement No. SE/83. The nature of disputes in respect of the claim was also specified and appointment of arbitrator/arbitrators, as per the agreement read with General Conditions of Contract, was sought for within a period of thirty days from the date of receipt of the notice.

5. In response to the said notice of the petitioner’s lawyer, the Divisional Engineer-II, for DRM (Works), wrote back a letter dated 25.09.2014 to the lawyer who had issued the notice. In the said letter, dated 25.09.2014, response was given to the pleas taken in the notice dated 02.09.2014. It was further stated as follows:

“Para 2: It is once again reiterated that in terms of Clause No. 15 of CA and 64 of GCC, 1998 edition, the contractor may demand for arbitration in writing specifying the disputes along with the amount of claim item wise within 120 days after the completion/termination of the contract. But the contractor has not submitted any demand for arbitration in absence of which competent authority cannot appoint Arbitration Tribunal. Therefore, the contractor, instead of serving legal notice may demand for arbitration tribunal in writing specifying the disputes and amount of claim item wise.

Para-3: All the item wise claims may be elaborated in writing while demanding for arbitration Tribunal. The contractor directly cannot approach Hon’ble Court of Law. Firstly, the contractor shall demand in writing for appointment of Arbitration Tribunal within 120 days from the