The court cannot appoint an independent arbitrator but has to implement the procedure agreed upon between the parties regarding arbitration.

R. Rajendra Babu, J.

M/s. Bel House Associates Pvt. Ltd. under liquidation through the Official Liquidator filed these petitions under Ss,. 11 (5) and (6) of the Arbitration and Conciliation Act, 1996 for appointing an arbitrator for adjudicating the disputes between the petitioner and the respondents, the Southern Railway. The averments in both these petitions are similar. A.R.13/99 was on the basis of an agreement between the parties No. TCR/GUY/CN/12/90 dated 24.7.90 relating to the construction of the Station Building at Guruvayoor. A.R.No.15/99 was based on the agreement between the parties bearing No. 54/CN 88 dated 18.10.88 relating to the construction of new BG line from Trichur to Guruvayoor and other construction works. The relief prayed for in both these petitions are for appointing a sole arbitrator to adjudicate upon the disputes between the parties. It was alleged in both petitions that the entire work had been executed and completed in all respects and handed over to the Railway and the petitioner had to execute some extra items of work at the instance of the railway officials including minor items as well as the major items of work and before commencement of the execution of these extra items, the petitioner had duly intimated the Railway about the fixation of these extra rates and submitted their rate analysis for the same. But the, Railway had neglected to arrive at a rate by themselves. As there arose disputes, the petitioner issued notice to the General Manager, Southern Railway, Madras to appoint a sole arbitrator in accordance with Clause 63 of the General Conditions of Contract forming part of the agreement. The Railway did not comply with the above terms, a reminder also was sent and even then the Railway had not complied with the above demand. Hence the petitioner was compelled to approach this court for appointing an arbitrator to resolve the disputes between the parties.

2. Counter affidavit was filed by the respondents wherein the agreement between the parties had been admitted and also the existence of the arbitration clause. It was contended that there was no proper notice as the petitioner company was under liquidation and while so notices were issued by incompetent persons. It was further contended that there was no dispute for arbitration and when a procedure for arbitration had been mentioned in the agreement, the court cannot appoint an arbitrator, but it can only enforce the procedure contemplated in the agreement for arbitration.

3. Heard the learned counsel for the applicant and the standing counsel for me respondents.

4. The agreement between the parties was admitted. Existence of arbitration clause also was admitted. The applicant company was under liquidation and the petition was filed by the Official Liquidator. A notice also had been issued at the instance of the arbitrator demanding the initiation of arbitration proceedings- These are disputes between the parties for settlement Hence the contention mat there: was no notice cannot be accepted.

5. The main contention put forward by the respondents the Southern Railway was that when the agreement provides an arbitration clause and the procedure for arbitration, this court cannot appoint an independent arbitrator, but can only direct the implementation of the procedure contemplated in the agreement. Clause & of the General Conditions of Contract speaks about the arbitration clause. It says that disputes and difference of any kind whatsoever arising out of or in connection with the contract shall be decided by arbitration. Clause 64 of the General Conditions of Contract prescribes the procedure for appointing an arbitrator. Clause 64 reads:

(1) In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account, or as to the withholding by the Railway of any ce