The Court:- The present application has been filed for appointment of an Arbitrator in view of absence of consensus between the parties.

Learned Counsel appearing for the petitioner places reliance on Clause 64.(1)(i) of the General Conditions of Contract (GCC) between the parties which contains the arbitration clause.

It is argued that in terms of the preceding clause, that is Clause 63.1, a reference of the dispute was made to the General Manager of the respondent Railways. Initially there was delay on the part of the General Manager to decide on the same, upon which a writ petition was preferred, in which direction was passed on the General Manager to decide on the disputes and to pass a reasoned order. Accordingly, the General Manager (GM) took a decision on June 20, 2021.

The petitioner contends that thereafter the petitioner also issued a reminder on February 22, 2022 and finally invoked the arbitration clause by a notice under Section 21 of the Arbitration and Conciliation Act, 1996 dated June 22, 2022.

Learned Counsel appearing for the respondents submits that the application is premature, the petitioner having not complied with Clause 63.1 of the GCC.

The first limb of the submission of the respondents is that Clause 63.1 contemplates that the General Manager of the respondent Railway Authority was to take a call upon reference being made by the petitioner, as to whether the disputes fell within the exception clauses of the contract. Thereafter, a final claim was to be made by the petitioner within the contemplation of Clause 64.(1)(i).

As per the said clause, the contractor had to demand in writing that the dispute or difference be referred to arbitration within a period of 120-180 days from presentation of his final claim on the disputed matter. In the present case, it is argued, the petitioner never made any such final claim after the decision of the General Manager and as such, the petitioner has not exhausted the pre-arbitration remedy as stipulated in the arbitration clause.

That apart, even if the final claim was deemed to have been made by the petitioner, the invocation was made much after 180 days, which is the stipulated outer limit for making such claims; hence the respondents submit that the application ought to be dismissed.

In the present case, previously an objection was taken as to prior conciliatory proceedings having not been undertaken by the parties which, however, was turned down by a coordinate Bench.

To be fair, the respondents now do not urge the self-same issue but take objection under a different provision.

With regard to the first limb of the objection, the same cannot be accepted. Clause 63.1 does not contemplate a decision by the General Manager only on the issue as to whether the disputes raised fall within the exception clauses. The language of Clause 63.1 is very clear, providing that 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.

Thus, the reference covers all the aspects of disputes and differences as mentioned therein and are not restricted to the exception clauses’ applicability. Thereafter, as per Clause 63.1, the GM, within 120 days of receipt of the representation, is to make and notify decisions on all matters referred to by the contractor in writing, which also refers to all the components of dispute and not merely to the exception clauses.

In the present case, the petitioner did exhaust Clause 63.1 by referring the disputes in an exhaustive letter to the General Manager. Since the General Manager initially delayed in deciding the same, the petitioner obtained an order from the writ court, pursuant to which the General Manager decided against the petitioner on several components of the disputes in writing on June 20, 2021.

Hence, there cannot be any doubt that Clau