ORDER

The present application is preferred by applicant under Sec;tion 11 of

Arbitration and Conciliation Act, 1996.

2. Precisely stated facts of the case are that applicant is a Private Limited Company registered under the Companies Act, 1956 and is engaged mainly in the work of Civil Construction and specializes in construction of railway related works. Respondent No. 1- is the Union of India, Ministry of Railways and invited the bid for tender for construction of road under a bridge in lieu of level crossing No. 429 between STLI-DHO Section (by box pushing method) vide its notice dated 9/10/2013. Respondents No. 2 and 3

are the Officers of North Central Railways.

3. Respondent No. 1 issued Notice Inviting Tender (NIT) on 9/10/2013 for construction of road as referred above in which applicant responded by quoting its rates vide letter dated 19/11/2013 and negotiations ensued. Later on work was awarded to applicant vide letter dated 24/2/2014 vide Annexure A/2. Letter of Acceptance (LOA) was issued on 7/4/2014 in which applicant was directed to deposit Performance Guarantee (PG) as per subject condition of Contract (Part 1).

4. Applicant completed the formalities as per the contract agreement dated 11/9/2014, executed between applicant and respondent No. 1. As per the terms of contract, work was required to be completed within 10 months of LOA i.e. by 23/12/2014 for a total amount of Rs. 8,05,55,859/-.

5. It appears from the pleadings and submissions that LOA for the subject work was granted to applicant on 26/2/2014 upon which applicant tried to mobilize resources at the site; however, work could not be completed within the stipulated period. Total eight times, extension was sought by applicant and granted by respondents. After eight extensions granted, work was completed in July, 2017 and contract was finalized and closed after passing of all due payments to applicant vide final bill and final PVC bill dated 21/10/2019. All Performance Guarantee (PG) and Security Deposits (SD) were refunded to applicant vide No Claim Certificate dated 13/11/2019 and dated 10/12/2019. In said No Claim Certificate, amount was accepted without any protest and recording decent.

6. It further appears that applicant was aggrieved by the manner, contract was proceeded and therefore, approached respondent No. 3 as per the terms of Contract for appointment of Arbitrator vide letter dated 10/1/2021. Same was replied by respondent No. 3 vide its reply dated 8/2/2021. Thereafter, on 11/4/2021 again notice was issued for settlement of issues and making the payments. Thereafter again notice was issued on 19/1/2022. Thereafter, this application has been preferred.

7. It is the submission of learned counsel for the applicant that because of working of respondents delay has been caused in completing the project. The applicant mobilized all resources to its end, the moment applicant was awarded the contract but time and again, it was respondents who caused delay and therefore, project could not be completed within time. It is submitted that extension was granted 7-8 times but it was because of delay caused by respondents. Certain extra work was executed by applicant while completing the project and this caused over stay of tools and machinery etc.

8. It is the submission of learned counsel for the applicant that because of delay profitability of the applicant reduced. Notice dated 10/1/2021 (filed as Annexure A/39) is exhaustive list of claims raised by application (total 20 in number) and it is the submission that said claims have not been settled by the respondents, therefore, dispute is being raised. As per Section 12(5) of the

Arbitration and Conciliation Act, 1996, Departmental Authorities cannot be appointed to act as Arbitrator as per provisions of General Conditions of Contract, 2014, therefore, Arbitrator be appointed for settlement of disputes. Ambica Construction Vs. Union of India, (2006) 13 SCC 475, National Insurance Company Limited Vs. Boghara Polyfab