The court emphasized the limited power of the court to decide non-arbitrability and the requirement for a vestige of doubt that the claim is non-arbitrable before referring the dispute to the arbitrator.

JUDGMENT :

1. Heard Sri Chandra Shekhar Singh, learned counsel for the applicant and Sri Abhijeet Saxena, Advocate holding brief of Sri Awadhesh Kumar Saxena, for the opposite parties.

2. The instant application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') has been filed by the applicant for appointment of an Arbitrator in terms of Clauses 63 & of the General Conditions of Contract 2014, Indian Railways, in respect of disputes and differences arising out of the contract dated 07.08.2017.

3. The letter of acceptance dated 03.04.2017, accepting the proposal of the applicant stipulated that General Conditions of Contract 2014 and Indian Railways Unified Standard Specification (materials and works) (Vol. I & II) 2010 Rules, up to date special conditions attached shall apply to the contract.

4. It is not in dispute between the parties that Clause 64.(3) regulates the appointment of Arbitrator and the same is extracted below: -

"64.(3) : Appointment of Arbitrator:

64.(3)(a)(i): In cases where the total value of all claims in question added together does not exceed Rs.25,00,000/- (Rupees twenty five 25,00,000/- (Rupees twenty five lakh only), the Arbitral Tribunal shall consist of a Sole Arbitrator who shall be a Gazetted Officer of Railway not below JA Grade, nominated by the General Manager. The sole arbitrator shall be appointed within 60 days from the day when a written and valid demand for arbitration is received by GM.

64.(3)(a)(ii): In cases not covered by the Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below JA Grade or 2 Railway Gazetted Officers not below JA Grade and a retired Railway Officer, retired not below the rank of SAG Officer, as the arbitrators. For this purpose, the Railway will send a panel of more than three names of Gazetted Railway Officers of one or more departments of the Railway which may also include the name(s) of retired Railway Officer(s) empanelled to work as Railway Arbitrator to the Contractor within 60 days from the day when a written and valid demand for arbitration is received by the GM.

Contractor will be asked to suggest to General Manager at least 2 names out of the panel for appointment as Contractor's nominee within 30 days from the date of dispatch of the request by Railway. The General Manager shall appoint at least one out of them as the Contractor's nominee and will, also simultaneously appoint the balance number of arbitrators either from the panel or from outside the panel, duly indicating the 'presiding arbitrator' from amongst the 3 arbitrators so appointed. GM shall complete this exercise of appointing the Arbitral Tribunal within 30 days from the receipt of the names of Contractor's nominees. While nominating the arbitrators, it will be necessary to ensure that one of them is from the Accounts Department. An officer of Selection Grade of the Accounts Department shall be considered of equal status to the officers in SA Grade of other departments of the Railway for the purpose of appointment of arbitrator.

5. Clause 63, which is also relevant, is as follows:-

"63. Matters Finally Determined By The Railway : All disputes and differences of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract, shall be referred by the contractor to the GM and the GM shall, within 120 days after receipt of the contractor's representation, make and notify decisions on all matters referred to by the contractor in writing provided that matters for which provision has been made in Clauses 8, 18, 22(5), 39, 43(2), 45(a), 55, 55-A(5), 57, 57A, 61(1), 61(2) and 62(1) to (xiii)(B) of Standard General Conditions of Contract or in any Clause of the Special Conditions of the Contract shall be deemed as 'excepted matters' (matters not arbitrable) and decisions