JUDGMENT :

1. The instant arbitration application has been filed by the applicant-Firm under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘Act of 1996’) claiming the following reliefs:-

“It is, therefore, most humbly and respectfully prayed that this arbitration application filed by the petitioner/applicant may kindly be allowed and an independent and impartial arbitrator may kindly be ordered to be appointed to resolve the disputes between the parties, from penal of Court.

Any other order, which may kindly be deem, fit and proper may kindly be passed in favour of the petitioner.”

2. The respondents issued the tender for civil works pertaining to zone-II, i.e. filing, cutting, widening, raising etc. from KM 1/0 to KM 50/0 in c/w gauge conversion project of Jodhpur-Jaisalmer. The contract was executed between the applicant and the respondent no.2 on 20.09.1994. The tentative date for completion of the work was stipulated as 11.01.1995, but after extension, the work in question was completed on 31.05.1996, and that, the respondent no.4 vide letter dated 22.02.1997 issued the satisfactory performance certificate.

2.1 The final bill has been paid on 17.11.1998 after certain deductions; the said final final bill was signed ‘Under Protest’ by the applicant, but vide letter dated 23.06.1999 it was impressed upon the applicant to withdraw the said remark i.e. “Under Protest”; the applicant suggested that it shall withdraw such remark, subject to the condition that the respondent-Department shall make the complete payment as demanded vide letter (Annexure-5) issued in the month of July, 1999, but the said request was not considered by the respondent-Department. Thereafter, the applicant, for the first time on 16.11.2000, made a request for appointment of an Arbitrator.

2.2 The applicant also served a representation 07.11.2011 for invocation of the arbitration clause 64 of General Conditions of Contract (GCC), 1989, and for referring the dispute for arbitration.

The applicant also preferred a civil writ petition (S.B.C.W.P. No. 5400/2012) before this Hon’ble Court, but the same was dismissed as withdrawn on 01.05.2018 with liberty to file an arbitration application.

3. Learned counsel for the applicant submitted that there is an existing arbitration agreement alongwith the present application, which contained an arbitration clause, and the same is sufficient for referring the dispute for arbitration.

3.1. The Arbitration Clause 64 of the GCC is reproduced as hereunder :

“64(1)(i) Demand for Arbitration.-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 certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such case, but except in any of the ‘excepted matters’ referred to in clause63 of these conditions, the contractor, after 120 days but with in 180 days of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference be referred to arbitration.

64(1)(ii) – The demand for arbitration shall specify the matters which are in question or subject of the dispute or difference as also the amount of claim itemwise. Only such dispute(s) or difference(s) in respect of which the demand has been made together with counter claims or set off shall be referred to arbitration and other matters shall not be included in the reference.

64(1)(ii)(a)-the Arbitration proceeding shall be assumed to have commenced from the day, a written and valid demand for arbitration is received by the Railway.

(b) The claimant shall submit his claim stating the facts supporting the claim alongwith all relevant documents and the relief or remedy sought after each