ORDER

Heard finally with the consent of both the parties.

This application has been filed seeking appointment of Arbitrator under

Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996').

2 concerned and a railway contractor and Ranveer Singh is the proprietor of the firm and is also a Railway Contractor and, therefore, he is entitled to file the present application.

3 Railway, Jabalpur. The respondent No.1 invited proposal through tender notice No. DRM-W-JBP-107-2018 dated 26.06.2018. The tender was opened on 03.08.2018 for upgradation of ROH depot and improvement examination at

New Katni Junction.

4 said amount was retained towards initial security deposit payable under Clause 16(1) of General Conditions of Contract (GCC). As per terms and conditions of the tender, the applicant was required to deposit performance guarantee of Rs.18,11,773/- (5% of the bid value) within a period of 30 days from the date of award.

5 applicant did not submit the performance guarantee owing to his personal difficulties. Therefore, the work awarded to the applicant was terminated by the respondents.

6 executed between the parties in the present case and only work order was issued in favour of the applicant. The NIT envisages that the General

Conditions of Contract (GCC) would be applicable.

7 letter it has been clearly indicated if the applicant fails to deposit the performance guarantee within a period of 90 days, the respondent railways will have right to terminate the contract as per General Conditions of Contract. The non deposit of performance guarantee is a condition precedent. It amounts to clear violation of the conditions of the tender. Apart from this, no agreement has been executed between parties, therefore, the action initiated by the respondent railways is not arbitrable and apart from this it is also submitted by the respondent railways that the termination of the contract in light of non deposit of performance guarantee comes within the purview of "accepted matters".

8 it is clearly specified that such decisions which have been taken in the light of Clauses 62(1) and 62(2) of the GCC are covered under the definition of "accepted matters", therefore, those matters are not arbitrable and the request of the applicant to appoint an independent arbitrator deserves to be rejected.

9

10 railways thereafter EMD amount of Rs.3,23,230/- was deposited by the applicant and performance guarantee amount of Rs. 18,11,773/- was required to be deposited but the same could not be deposited by the applicant citing personal reasons.

11 that no agreement was executed between the parties. He had contended that despite no agreement in the tender document, the regulation for tender in contract shall be read in conjunction with the GCC, which are referred to herein and shall be subject to modification, additions or super session by special conditions of contract and special specifications, if any, annexed to the tender form and also argued that from Clause-1 it appears that the GCC would govern the mechanism for appointment of an arbitrator. In the reply, it is also not disputed by the respondents that the GCC would not be applicable.

12 and differences in connection with contract, if any, arising shall be referred by the Contractor to the General Manager and the General Manager shall act within 120 days after receipt of the Contractor's representation/dispute and further notify decision on all matters referred to by the Contractor. The Rules also provides that if any matter falls within the category of Clauses- 8, 18, 22(5), 39, 43(2), 45(A), 55, 55-A(5), 57, 57(A), 61(1), 61(2) and 62(1)(2)(VIII)B of the Standard General Conditions of Contract or in any clause of Special Condition of Contract shall be deemed as excepted matters i.e. "Âœmatters which are not

Arbitrable".

13 64 provides that Arbitrator is to be appointed by the General Manager of the Railways. The Arbitration Tribunal shall consist of working gazetted of