ORDER

1.The applicant has approached this Court by way of this application filed under section 11 of the Arbitration and Conciliation Act, 1996 seeking the appointment of an Arbitrator in order to resolve the dispute with the respondents.

2.The facts as stated in this application, in short, are that the applicant is a Company registered under the provisions of the Companies Act having its registered office at Andheri New Link Road Andheri (West) Mumbai. The applicant company is doing business with the department of Railway for several years and their performance is sincere and disciplined. The respondents had issued the tender notice RTM/DINL/DY-CE/II/15 for inviting bids from various contractors for the execution of contract work described as “Earth Work in Bank/Cutting for the formation of new Broad Gauge Line for adjoining existing line including level crossing, yards, bridge approach extra; and extension/construction of minor bridges, site drain, trolley refuges, tow wall extra Rau-Sagor Station at Ch.14000.00 to 26000.00 meters from IND (Ch 0.00) in connection with the construction of new BG line between Dahod-Indore Project of Western Railway ( hereinafter referred to as “the work in question”).

3.The applicant company participated in the tender process by submitting its bid. The bids received by the respondent were scrutinized and the applicant company was declared L-1, therefore, the Acceptance Letter for the execution of “the work in question” was served to the applicant. The applicant company submitted a security deposit/performance guarantee amount as demanded by the respondent department for the execution of the work agreement. But since the beginning, the respondent department was not sincere and they were not able to provide drawings and layout to the applicant company on time. The respondent without taking consent of the applicant/company has reduced the scope of work from Rs.32,02,92,364/- to 13.05 crores due to which the applicant suffered heavy loss and the estimated profit of the applicant/company was reduced beyond expectation. However, in spite of all aforementioned odds, the applicant/company after receiving the acceptance letter executed the contract agreement with the respondent department to their satisfaction.

4. After completion of the work, and issuance of the work completion certificate the applicant requested the respondents to finalise the bill but no prompt response was received. The respondent took one year to finalise the bill and called the applicant to sign the bill with no claim certificate. Under the pressure and threat of the respondents, the applicant/company had no option but to sign the ‘No Claim Certificate’. The agreement between the parties contains arbitration clause no.37, which provides that if a dispute arose between the parties in respect of the work, the same will be referred to the Arbitration Tribunal as per clauses 63 and 64 of the GCC (General Conditions of Contract). It is further submitted by the learned counsel that since the reduction of the contract amount was done unilaterally, therefore, this issue is liable to be adjudicated by the Arbitration Tribunal. When the dispute was not referred to the arbitration, then the applicant filed the present application before this court.

5.The respondents have filed the reply by submitting that the applicant has failed to submit the application seeking the appointment of an arbitrator as per the terms and conditions of the agreement. As per clause 37 of the agreement, the dispute can be referred to arbitration only when its total value is 20% of the contract value. The contract value is Rs.10,50,00,000/- and the claim of the applicant is more than 20% of it, therefore, this dispute is not liable to be referred as argued by Mr. Mehta learned counsel appearing for the respondent, hence, his applic