JUDGMENT :

Heard Mr. S. Sharma, learned counsel for the petitioner. Also heard Mr. G. Goswami, learned Standing Counsel, N.F. Railway.

2. The present application has been filed under Section 15(2) of the Arbitration and Conciliation Act, 1996 read with Section 11 of the said Act for appointment of the Substituted Arbitrator.

3. Before this application was filed, an Arbitrator was appointed to resolve the disputes between the parties by an order dated 20.09.2019 passed by this Court in Arb. Pet. No.33/2018.

4. The petitioner is a Private Limited Company engaged in the business of manufacturing and supplying of Railway sleepers, welding of rails etc. and the petitioner was awarded a contract by the Railway authorities for execution of work of welding of 52 Kg. (72 UTS/52kg (90UTS) Rolls in situ or in the depot or at location decided by Railway by using contractor’s own Mobile Flas Butt Welding Plant and SKV portion on running/rion running lines or on cess of consolidated formation or on ballasted bed in the project area of New Mainaguri-Jogighopa New Line Project in connection with which a formal contract was executed between the parties on 29.09.2010.

5. It appears that there was certain delay in completion of the execution of the work and because of such delay, the Railway authorities sought to deduct certain amount from the security deposit which led to dispute leading to certain litigation also, details of which we are not concerned in this proceeding.

6. In order to resolve the said dispute amicably, the respondent railway authorities proposed for appointment of arbitration by seeking to appoint Arbitral Tribunal from the penal of Arbitrators maintained by the Railway authorities who were or had been in service of Railways, to which the Railway authorities sought for waiver from the petitioner as provided under the proviso of 12(5) of the Arbitration and Conciliation Act, 1996, to which the petitioner declined.

7. Under the circumstances, the petitioner approached this Court by filing arbitration petition, being Arb. Pet. No. 33/2016 and this Court after hearing the parties disposed of Arb. Pet.33/2016 on 20.09.2019 with the following direction:-

“16. After hearing learned counsel for the parties and on due consideration, Court is of the view that there is a dispute between the parties and such dispute is arbitrable in nature. The contract entered into between the parties provides for arbitration. Petitioner had invoked the arbitration clause. Respondents agreed to it but insisted on having arbitrator out of their panel, who are none else but former officers of Railways.

17. In matters of arbitration, independence and impartiality of arbitrator is of paramount importance. In fact, it has now been statutorily incorporated in the Arbitration and Conciliation Act, 1996, substituting Sections 11 (8) and 12 (1) thereof by way of amendment.

18. Therefore and taking an overall view of the matter, Court is of the view that parties should be referred to arbitration. Accordingly, Hon’ble Mr Justice (Retd.) B D Agarwal, a former Judge of this Court is appointed as the arbitrator to arbitrate the dispute between the parties, subject to his consent and disclosure.”

8. Pursuant to the direction of this Court appointing Hon’ble Mr. Justice (Retd.) B. D. Agarwal, a former Judge of this Court to act as the Arbitrator, the arbitration proceeding was taken up by the Arbitrator.

However, it appears from the record that the Arbitration proceeding did not make any headaway in view of alleged non-cooperation by the respondents in settling fees and others and accordingly, the Court appointed Arbitrator returned the case and declined to proceed with the arbitration vide order dated 12.01.2020 passed by the Arbitrator.

9. In view of above refusal of the Arbitrator to proceed with the arbitration, the present petition has been filed under Section 15(2) of the Arbitration and Conciliation Act, 1996 read with Section 11 of the Act for appointment of a Substituted