$~1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 04.10.2024 + ARB.P. 703/2023 M/S. M.V. OMNI PROJECTS (INDIA) LTD. .....Petitioner Through: Mr. Subodh Kr. Pathak and Mr.

Akash Swami, Advocates.

versus UNION OF INDIA, THROUGH DY.

CHIEF ENGINEER/CONST.-II/NORTHERN RAILWAY .....Respondent Through: Mr. Ruchir Mishra, Mr. Sanjiv Kumar Saxena, Mr. Mukesh Kumar Tiwari and Ms. Poonam Shukla, Advocates.

CORAM:

HON'BLE MR. JUSTICE SACHIN DATTA SACHIN DATTA, J. (Oral

1. The present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeks the constitution of an Arbitral Tribunal to adjudicate the disputes between the parties.

2. Disputes between the parties have arisen in the context of a Contract Agreement bearing No.804-A/Cs/Dy.C.E./C-II-LKO dated 16.06.2016 entered into between the parties, concerning “Phaphamau-Allahabad Section: Balance earth work in embankment & cutting including mechanical compaction using vibrating roller, laying and compaction of blanketing as per RDSO guidelines for heavy axle load etc. between Km. 144.05 to Km.156.95 (i.e., Phaphamau Railway Station including yard and Allahabad Railway Station excluding yard) in connection with doubling between Phaphamau-Allahabad Section of Lucknow division. (CA No. 74-

W/1/1/WA/Misc/LKO dated 16.06.2016)”.

3. The relevant contract conditions between the parties contain the following provisions for dispute resolution:

“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 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 of the Railway authority, thereon shall be final and binding on the contractor; provided further that ‘excepted matters’ shall stand specifically excluded from the purview of the arbitration clause.

64 (1) (i) - Demand for Arbitration In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such case, but except in any of the “excepted matters” referred to in Clause 63 of these conditions, the contractor, after 120 days but within 180 days of his presenting his final claim on disputed matters shall demand in writing that the dispute or difference be referred to arbitration.

64 (1) (ii) - The demand for arbitration shall specify the matters which are in question, or subject of the dispute or difference as also the amount of claim item wise. Only such dispute(s) or difference(s) in respect of which the demand has been made, together with counter claims or set off, given by the Railway, shall be referred to arbitration and other matters shall not be included in the reference.

64 (1) (ii) - (a) The Arbitration proceedings shall be assumed to have commenced from the day, a written and valid demand for arbitration is received by the Railway.

(b) The claimant shall submit his claim stating the facts supporting the claims along with all the relevant documents and the relief or remedy sought against each claim within a period of 30 days from the date of appointment of the Arb