1. This is an application for appointment of an Arbitrator on the strength of Clause 76.0 of the General Conditions of Contract. The General Conditions of Contract (GCC) was made applicable to the agreement between the petitioner and the respondents. National Projects Construction Corporation Ltd (NPCCL), i.e., the respondent had awarded a contract to the petitioner for reconstruction / upgradation of the existing road NH - 717 - A to Two lane with paved shoulder, including geometric improvement from KM 6.00 to KM 16.167 in NH 717A in the state of Sikkim, on the terms and conditions contained in the Letter of Award.

2. The petitioner contends that disputes cropped up with regard to withholding payment of the running account bill (R.A bill), invocation of bank guarantee upon termination of the contract, non - refund of security deposit etc. Ultimately, the notice invoking arbitration was issued by the petitioner on February 19, 2022. The third and final RA bill allegedly became due and payable sometime in February / March 2021.

3. Mr. Mukherjee, learned senior advocate for the petitioner, submitted that in terms of the GCC, the parties were entitled to refer the dispute to arbitration. The demand notices raised by the petitioner would clearly indicate that disputes had been raised by the petitioner long time ago. The demand notices remained unanswered. Ultimately, finding no other alternative, the arbitration clause was invoked. The respondent did not take any step despite such invocation. Finding no other alternative, the petitioner approached this Court for appointment of an arbitrator.

4. In support of his contention that Clause 76 of the GCC was a valid clause, Mr. Mukherjee relied on the decision of Zhejiang Bonly Elevator Guide Rail Manufacture Company Limited v. Jade Elevator Components reported in 2018 (9) SCC 774: (AIR 2018 SC 4271).

5. Mr. Mukherjee further submitted that the petitioner was made to sign on a dotted line contract. The GCC was framed by the respondent. The petitioner did not have any say in the drafting of the clauses. The GCC provided that arbitration would be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The clause, therefore, envisaged and contemplated that all disputes would be resolved by arbitration, upon reference by the parties. The jurisdiction clause 76.1, followed the arbitration clause. Reliance was further placed on the decision of Enercon (India) Limited and other v. Enercon GMBH and Another reported in 2014 (5) SCC 1: (AIR 2014 SC 3152).

6. Mr. Basu learned senior advocate for the respondents submitted that the claim was barred by limitation. The notice invoking arbitration was not proper and the clause relied upon by the petitioner, was not a valid arbitration clause.

7. This Court finds that clause 76 has been incorporated just after clause 75. Clause 75 is the Force Majeure clause. Clauses 75, 76.0 and 76.1 are quoted below for convenience.
"75.0 FORCE MAJEURE
Any delay in or failure of the performance of either party hereto shall not constitute default hereunder to give rise to any claims for damages, if any to the Extent such delay or failure of performance is caused by occurrences such as acts of god or the public enemy, expropriation, compliance with any order or request of Government authorities, acts of war, rebellions, sabotage fire, floods, strikes, or riots (other than contractor's employees). Only extension of time shall be considered for Force Majeure conditions as accepted by NPCC. No adjustment in contract price shall be allowed for reasons of force majeure.
76.0 ARBITRATION
The arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act 1996 (26 of 1996) or any statutory modifications or re - enactment thereof and the rules made there under and for the time being in force shall apply under this clause.
76.1 JURISDICTION
The agreement shall be executed at Kolkata on nonjudicial stamp paper