1. Applicant has filed this application under section 11(6) of the Arbitration and Conciliation Act, 1996 (for brevity, the ‘Act’) for appointment of arbitrator for settlement of dispute between the parties.

2. The facts narrated in the application are that the applicant is a partnership firm and entered into an agreement (Annexure ‘D’) with the respondents. As per clause 64 of the agreement, a redressal mechanism through arbitration is prescribed. The respondents abruptly and arbitrarily terminated the contract of the applicant. On the one hand, the respondents provided extension to the applicant to complete the work and on the other hand suddenly terminated the contract and forfeited the security deposit and performance guarantee deposit. On 20.9.2013 (Annexure ‘C’), a notice was served upon the General Manager, North Central Railway by the applicant.

3. Shri Prashant Sharma, learned counsel for the applicant submits that in the said notice, it was prayed that the General Manager must appoint the arbitrator. By taking this Court to clause 64 of general conditions of contract, it is contended that if arbitrator is not appointed within a period of thirty days from the date of demand by the applicant, section 11(6) of the Act can be invoked. The notice aforesaid was served upon the respondents by registered post. However, they did not appoint the arbitrator within thirty days and, therefore, this application is filed. Reliance is placed on (2006)2 SCC 638 (Punj Lloyd Ltd. v. Petronet MHB Ltd.). He also relied on (2000)8 SCC 151 (Datar Switchgears Ltd. v. Tata Finance Ltd.). He further submits that the communication (Annexure R-1) dated 8.11.2013 is not issued by the competent authority. It is only General Manager, who can appoint the arbitrator.

4. Per Contra, Shri Anand V. Bharadwaj, learned counsel for the respondents, took a preliminary objection. It is contended that the letter dated 13.11.2013 (Annexure R-2), sent by the applicant himself, shows that on 13.11.2013 it is stated that an application under section 11(6) of the Act has already been filed. The said statement is apparently wrong and amounts to suppression of fact. The present application under section 11(6) is actually filed on 14.11.2013. It is also submitted that the applicant has deliberately suppressed the documents dated 8.11.2013 (Annexure R-1) and 13.11.2013 (Annexure R-2).

5. Shri Anand V. Bharadwaj urged that after receiving notice of the applicant, the letter dated 8.11.2013 (Annexure R-1) was issued and applicant was intimated regarding nomination of panel of officers, out of which, as per agreement, the applicant was required to select two names. Out of the said two names, selected by the applicant, the General Manager was required to select one name as applicant’s nominee to constitute a panel of three arbitrators. The applicant on receiving the letter dated 8.11.2013 misrepresented before the respondents by contending that he has already approached this Court under section 11(6) of the Act. It is stated that the applicant has not approached the Court with clean hands, clean mind and clean objective. By placing reliance on letter dated 12.6.2013, it is contended that the applicant was again requested to select two names from the panel of four arbitrators proposed by Annexure R-1. He submits that as per the agreement, Annexure R-1, is passed by the competent authority.

6. No other point is pressed by the parties.

7. I have heard the parties at length and perused the record.

8. Clause 64 (1)(i) provides the method of “demand for arbitration”. Section 64(3) (a) (ii) provides the methodology of proposal and selection of arbitrator. It reads as under :

“Clause 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 arbi