JUDGMENT :

1. An application under Section 11 of the Arbitration and Conciliation Act, 1996 (for short “the Act of 1996”) has been filed to seek appointment of an independent Arbitrator.

2. The appointment of independent Arbitrator is sought in reference to the dispute arose on execution of work pursuant to an arbitration agreement. A reference of Clause 63 and 64 of the General Conditions of Contract has been given for appointment of Arbitrator.

3. Learned counsel for applicant submits that despite a clause for arbitration and notice for appointment of Arbitrator to resolve the dispute, the non-applicants failed to nominate an independent Arbitrator thus present application has been filed. A reference of letter dated 18th March, 2017 has been given. A dispute was raised with a request to refer it to the Arbitrator. The non-applicants sent a letter on 22nd February, 2018, disclosing names of four ex-employees. It is with a direction to select two out of it to be appointed as Arbitrators.

4. The letter dated 22nd February, 2018 to nominate Arbitrators was sent after expiry of period of 30 days and otherwise, it is hit by Section 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015 (in short “the Amendment Act of 2015”). The named persons were the employees of the Railways. The Seventh Schedule appended to the Amendment Act of 2015 makes ex-employees ineligible for being appointed as Arbitrators. It is thus not only that names of the Arbitrators were sent subsequent to the period of 30 days of the notice but they are otherwise hit by Section 12(5) of the Amendment Act of 2015.

5. To support the arguments, a reference of the judgment of this court in the case of Parmar Construction Company Vs. The Union of India, reported in 2017 (4) WLC (Raj.) 780 has been given apart from judgment of the Apex Court in the case of TRF Limited Vs. Energo Engineering Projects Limited, reported in (2017) 8 SCC 377. A prayer is, accordingly, made to allow the application under Section 11 of the Act of 1996 and nominate an independent Arbitrator to resolve the dispute between the parties.

6. Learned counsel for non-applicants has opposed the application. A reference of Clause 63 and 64 of the General Conditions of Contract has been given to show procedure for appointment of an Arbitrator.

7. It is submitted that a claim was made by the applicant vide letter dated 18th March, 2017 with a request to accept it and release the amount so withheld by the Railways. A prayer for giving reasonable opportunity of hearing for settlement of the dispute was also made.

8. As per Clause 63 of the General Conditions of Contract, a claim needs to be decided within a period of 120 days on its receipt. Clause 64(1)(i) of the General Conditions of Contract provides that if a dispute is not settled or decision on it is not given within 120 days, then before expiry of the period of 180 days, the parties shall demand in writing for reference of the dispute or difference for arbitration.

9. It is submitted that no letter or notice was sent by the applicant for appointment of Arbitrator after expiry of the period of 120 days. In view of the above, the applicant failed to apply the procedure given for appointment of Arbitrator. The Railways still advised to choose any of the ex-employees as an Arbitrator vide their letter dated 22nd February, 2018. The applicant failed to name anyone out of four. In view of the above, present application is not maintainable as the applicant failed to apply the procedure given for appointment of Arbitrator.

10. The argument of learned counsel for applicant regarding expiry of period of 30 days for nomination of Arbitrator has also been contested. It is submitted that when a notice for appointment of Arbitrator was not given as per the procedure under the General Conditions of Contract, the question of expiry of period of 30 days would not arise so as to seek appointment of Arbitrator under Section 11 of the Act of 1996. In view of the above,