ORDER

The applicant has approached this Court invoking the provisions of Sections 11(5) and 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act' for short), seeking that an Arbitral Tribunal be constituted for adjudication of his claim made against the opposite party through Annexures A1 to A7.

2. The applicant submits that he had entered into Annexure A2 agreement for reconstruction of certain infrastructural facilities for the respondent - Railways, but that some disputes arose with respect to and in connection with the same, which compelled him to issue Annexure A5 letter to the competent Authority of the respondent, requesting either that his claims be acceded to or that the matter be referred to arbitration “as per the relevant Clauses of GCC duly appointing an Arbitral Tribunal” (sic).

3. The applicant says that, however, through Annexure A6, the respondents refused to accede to either of the afore requests and therefore, that he has been constrained to approach this Court.

4. I have heard Smt.S.Indu, learned counsel for the petitioner and Shri.Dinesh Rao, learned Standing Counsel for the opposite party.

5. The submissions of Shri.Dinesh Rao in opposition to the request made by the petitioner were: for the first, that this Arbitration Request is premature and for the second, that even if this request is maintainable, then an Arbitral Tribunal can be constituted only in terms of Clause 64(3)(b) of the Indian Railway's General Conditions of Contract (GCC – 2014). He submitted that as per this provision, the Arbitral Tribunal shall consist of a panel of three retired Railway Officials; and that for this purpose, the Railway had sent a panel of four names to the applicant, requesting him to suggest at least two out of them, thus leading to one being nominated to be their nominee, by the Railway.

6. Shri.Dinesh Rao pointed out that, as per the provisions of the said Clause, the General Manager of the Railway will then appoint other two Arbitrators, either from the recognized panel or from outside, duly indicating who the presiding Officer among them will be. He argued that, therefore, the prayer of the applicant in this Arbitration Request is not capable of being granted by this Court.

7. On the first issue, regarding the non maintainability of the request, the contentions impelled by Shri.Dinesh Rao was that, as per Clause 63 of the GCC [the relevant portion of which has been produced on record as Ext.R1(b)] a contractor like the applicant, can maintain a request for arbitration only after he approaches the General Manager of the Railway with a representation and only if a decision is not taken by the said Authority within 120 days. He submitted that, going by Clause 64(1)(i) of the GCC, only if the contractor is not happy with the decision of the General Manager, that he can approach the competent Authority for appointment of an Arbitral Panel, but within 180 days of presenting his representation before the said General manager.

8. Shri.Dinesh Rao then submitted that since, in this case, the applicant has not approached the General Manager as per Clause 63 of the GCC and has not waited for 120 days thereafter, this Arbitration Request is not maintainable.

9. On the issue regarding the maintainability of this Arbitration Request, I have carefully examined Clauses 63 and 64(1)(i) of the GCC, which reads as under:-

“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 their completion and whether before or after the determination of the contract, shall be referred by the Contractor to the Railway and the Railway 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(a), 18, 22(5), 39, 43(2)