In cases of inordinate delay in invoking the arbitration clause without justifiable reasons, the court cannot entertain the petition for the appointment of an arbitrator.

1. The Petitioner, an engineering Company engaged in the field of construction, has moved the present Petition under sub-sections (4) & (6) of Section 11 of the Arbitration and Conciliation Act, 1996, for the appointment of an independent Arbitrator to hear and resolve the disputes allegedly arising out of the works contract entered into between the Petitioner-Company and the Respondent-Railways.

2. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Petition would run thus:

It is stated that the Petitioner-Engineering Company is operating in the field of construction for more than five decades and successfully executed a number of contracts for the Respondent-Railways as well as other Government agencies. It is stated that the Respondent-Railways floated a tender on 25.10.2002 for the construction on the Erode-Coimbatore Section of 1x30.0 clear span PSC ox Girder ROB in lieu of existing level crossing No.128 at Kilometre 429/12-14 between Uthukuli and Tiruppur Stations. The tender forms were opened on 26.11.2002. After certain negotiations, which were held on 27.1.2003, the Petitioner-Company was awarded with the work on 20.2.2003. The contract was subject to the General Conditions of Contract of the Respondent-Railways coupled with certain special conditions imposed. Though the work was awarded as early as 20.2.2003, yet the agreement for the work was given to the Petitioner-Company only on 9.7.2003, after the expiry of nearly 5 months from the date of awarding of the contract. The total value of the contract was fixed at Rs.50,13,020/- which was split up into 4 items. It is stated that as per the Letter of Acceptance, the Petitioner has to furnish a Security Deposit of Rs.2,58,151/-. The Earnest Money Deposit of Rs.39,500/-, which was paid at the time of tender, was adjusted towards the Security Deposit, and the balance of Rs.2,18,651/- was given in the form of cash/D.D. It is stated that as per the terms of the contract the Respondent-Railways has to hand over the site on the date of contract itself viz., 20.2.2003. But, it did not do so. That apart, working drawing and alignment were not finalised, without which no physical work at the site is possible. The Respondent-Railways fixed the road alignment only on 11.7.2003 nearly after 5 months from the date of contract. It is stated that though the Respondent is bound to hand over the construction site free from all encumbrances to the Petitioner, on the date of contract, the Respondent-Railways miserably failed to do so, and thereby it committed breach of the terms of contract. It is further stated that the Respondent-Railways furnished its working drawings for the foundation and structure only in the month of September, 2003, i.e., seven months after the award of the contract. Thereafter, the Petitioner-Company submitted its design as well as drawings for the staging arrangements on 24.9.2003, but the Respondent-Railways took no action to scrutinise and approve the same, and this was so even after the reminder letters dated 18.12.2003, 7.1.2004, 18.2.2004, 9.6.2004, 25.10.2004, 24.03.2005 & 28.07.2004 sent by the Petitioner-Company. Because of this the Petitioner-Company was not able to continue its work. In the meantime the cost of construction materials had gone up to a great extent leading the Petitioner-Company to lose heavily. It is stated that whenever the Petitioner-Company sends letter seeking extension of time, the Respondent-Railways granted such extension without any penalty, which will clearly show that the indifferent attitude on the part of the Respondent-Railways is the root-cause for the delay in the execution of works. Since, the Respondent-Railways showed no sign at all for approving the drawing, the Petitioner-Company was constrained to write to the Respondent-Railways demanding payment for the various losses suffered by it. The Respondent-Railways simply terminated the contract