The timely nomination of arbitrators is essential under the Arbitration and Conciliation Act; delays may forfeit rights to nominate.

ORDER

R.DEVDAS J., (ORAL):

This Civil Miscellaneous Petition is filed under Section 11 (6) of the Arbitration and Conciliation Act , 1996, seeking for appointment of a sole arbitrator to resolve the disputes and outstanding issues between the parties in accordance with the provisions of the Agreement bearing No.CAO/ CN/ BNC/ 73860/ A/ 201/ XII/ 2014, dated 29.12.2014 at Annexure-B.

2. There is no dispute between the parties insofar as the arbitration Clause being available for the parties to be invoked. However, the only contention sought to be raised at the hands of respondent-Railway authorities is that when the petitioner invoked the arbitration clause by issuing a notice dated 18.10.2021, the petitioner did not annex a written waiver regarding the applicability of sub- section (5) of Section 12 of Arbitration and Conciliation (Amendment) Act, 2015. It is therefore sought to be contended at the hands of the respondent-Railway authorities that there was a short delay in responding to the arbitration notice issued by the petitioner. However, in the statement of objections filed at the hands of the respondent-Railway authorities it is sought to be contended that on 18.11.2022 the respondent-Railway authorities responded to the arbitration notice issued by the petitioner and nominated four retired officers of the Panel of arbitration as per Clause 64 (3)(b) of the GCC. It is the contention of the respondent-Railway authorities that since the petitioner did not comply with the requirement of supplying the schedule for waiver of the appointment of a retired Panel officer of the Railways, the delay was caused and the petitioner cannot turn-around and say that since the nomination made by the respondent-Railway authorities was beyond the period provided in the GCC, accordingly, the Civil Miscellaneous Petition should be rejected.

3. It is sought to be contended at the hands of the respondent-Railway authorities that there was non- compliance of the requirement of clause 64(1)(ii) (b) of GCC, in the arbitration notice issued by the petitioner, this Court should hold that the arbitration notice issued by the petitioner is not in accordance with law.

4. Per contra, learned Counsel for the petitioner submits that even if it is accepted that the petitioner did not enclose the schedule seeking waiver of the provisions contained in sub-section (5) of Section 12 of the Arbitration Act, nevertheless, that did not in any way preclude the respondent-Railway authorities from nominating the officers within the time prescribed in the GCC. In this regard, learned Counsel also seeks to place reliance on a recent decision of the co-ordinate Bench of this Court in the case of M/S. LAKSHMI VENKATESHWARA CONSTRUCTIONS VS. UNION OF INDIA AND OTHERS, in Civil Misc.Petition No.422/2022 dated 18.11.2022.

5. Having regard to the contentions raised by the learned Counsels for the petitioner as wells as the respondent-Railway authorities, this Court is of the considered opinion that the only question that arises for decision making in this Civil Miscellaneous Petition is whether the delay caused on the part of the respondent- Railway authorities in nominating the arbitrators for the Arbitration Tribunal can be countenanced and whether the Civil Miscellaneous Petition is required to be rejected only on that ground. In the considered opinion of this Court, the non-waiver of the requirement of sub-section (5) of Section 12 by way of furnishing a schedule at the hands of the petitioners in terms of the contentions contained in Clause 64 (1) (ii) (b) of the GCC, did not in any way come in the way of the respondent-Railway authorities in nominating the Pane