The issue of arbitrability or non-arbitrability should be left to be decided by the Arbitral Tribunal.

JUDGMENT :

1. Heard Mr. Jatin Agarwal, learned counsel for the applicant and Mr. P.C. Sharma, learned counsel appearing for the respondents.

2. The petitioner is a contractor running its business as a joint venture firm. It has applied for appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) alleging that the contract agreement contains an arbitration clause and that despite invoking the same vide letter dated 01.07.2020, the disputes were not referred to the Arbitrator.

3. The facts, as revealed, disclose that the respondent-Railways issued a Notice Inviting Tender (NIT), inviting applications from the contractors for the construction of roads and under-bridges in lieu of level crossings, and for providing approach road retaining walls and adequate drainage arrangements etc. The petitioner was one of the applicants and his application for the aforesaid works was accepted by the Railways vide letter dated 07.04.2017 for a total cost of Rs.22,41,33,163.47. The petitioner was required to complete the work within a period of 18 months from the date of letter of acceptance. In other words, the work was to be completed on or before 06.10.2018. The petitioner in furtherance of the aforesaid acceptance, submitted earnest money of Rs.13,45,640/- and deposited a performance bank guarantee of Rs.1,12,06,660/-.

4. Upon completion of the formalities in terms of the acceptance letter, an agreement dated 19.07.2017 was executed between the petitioner and the Railways. The aforesaid agreement read with General Conditions of the Contract and Special Conditions of the Contract provides for dispute resolution through arbitration. The petitioner having completed the entire work on 15.07.2019 was expecting preparation of the final bill, but the Railways never took heed to the request of the petitioner for preparing the final bill, with the result, not only the petitioner’s earnest money, performance bank guarantee, but the dues for rendering the above work approximately to the tune of Rs.2 crores got held up. In the above circumstances, the petitioner invoked the Arbitration Clause 84 of the Special Conditions of the Contract vide letter dated 01.07.2020, which in-fact reiterates Clause 63 and 64 of the General Conditions of the Contract. The Railways in response to the above letter of the petitioner, vide letter dated 28.07.2020 requested the petitioner to give its consent for waiver of applicability of Section 12(5) and 31(5) of the Act, meaning thereby that the Railways were ready and willing to refer the dispute to an Arbitrator, subject to consent of waiver of the above provisions, but surprisingly they insisted and prevailed upon the petitioner to give a No Claim Certificate so that its due amount may be cleared after making statutory deductions. The petitioner not being in a position to prevail over the Railways, under compelling circumstances, so as to have the facility of the immediate funds to enable it to carry on its further business, submitted a No Claim Certificate dated 01.08.2020. It may be pertinent to note that the petitioners submitted the No Claim Certificate subsequent to invocation of the arbitration clause. On the submission of the No Claim Certificate, as aforesaid, the Railways released the final bill after making statutory deductions and made the payment of Rs.1,48,10,535/- to the petitioner.

5. Later on, the Railways vide letter dated 09.09.2020 rejected the demand of the petitioner for appointment of an Arbitrator on the premise that it has signed a No Claim Certificate and as such, has waived its right for appointment of the Arbitrator.

6. It is in the above background that the petitioner has preferred this Arbitration Application contending that the petitioner had not waived its right to claim arbitration on or before invoking the arbitration clause, therefore, once a notice of demand has been issued, the arbitration proceedings have commenced, w