HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Arbitration Application No. 1 / 2017

M/s A Cube Associates, 61, Nehru Park, Deepak Colony, Jodhpur

Through Its Partner Ajay Yaday S/o Shri R.P. Yadav, Aged About

46 Years.

----Petitioner

Versus

1. Union of India Through the General Manager,, North Western

Railway, Jaipur.

2. The Chief Engineer,, North Western Railway, Jaipur.

3. The Additional Divisional Railway Manager,, North Western

Railway, Jaipur.

4. The Senior Divisional Railway Engineer (Central), North Western

Railway, Jodhpur.

----Respondents

_____________________________________________________

For Petitioner(s) : Mr.K.K.Shah

For Respondent(s) : Mr.Kamal Dave

_____________________________________________________

HON'BLE MR. JUSTICE SANGEET LODHA

Judgment

17

^th May, 2017

1.

This arbitration application under Section 11 (6) of the

Arbitration and Conciliation Act, 1996 (for short “the Act”) has

been filed by the applicant for appointment of Arbitrator on

account of the respondent failing to appoint Arbitrator in terms of

the arbitration clause in the contract.

2.

The applicant was awarded a work of ‘Casual Renewal of

Sleeper, Casual Renewal of rail to replace worn out and wheel

burnt rails in SWF-JU-MJ Section, replacement of glued joints in

(2 of 8)

[ARBAP-1/2017]

SWF-JU-LN Section, through fitting renewal of 87.30 km. in MTD-

JU-LN Section (km. 569.21 to 656.51)UNDER ADEN/LINE/JU” for

Rs. 77,15,607 vide work order dated 11.11.13 issued by the

Senior Divisional Engineer, North Western Railway, Jodhpur. The

work was to be completed within a period of nine months. The

agreement was executed between the parties for execution of the

work on 16.12.13. The work could not be completed within the

stipulated period, however, the respondent extended the date of

completion as per requirement and the applicant completed the

work on 30.4.16. As per the condition of the contract, the final bill

was to be released within a period of 30 days from the date of

completion. The applicant applied for completion certificate but

the same was not issued and vide communication dated 3.6.16

issued by Senior Divisional Engineer, NW Railway, the applicant

was informed that a few of the works have not been completed

and accordingly, it was advised to got the completion period

extended and complete the work. The applicant made a request

for extension of time clarifying that though it is not bound to do

the work, the extension is applied for completion as proposed

taking into consideration the fact that its huge amount is at stake.

The non applicants extended the date of completion without

penalty vide letter dated 15.7.16. The dispute having arisen

regarding the payment of the final bill, the applicant made

representation dated 1.6.16 purportedly invoking clause 64 of

General Conditions of Contract (‘GCC’) to nominate an

independent and impartial Sole Arbitrator within 60 days for

resolving the dispute referred to therein. The request made as

(3 of 8)

[ARBAP-1/2017]

aforesaid was followed by yet another representation dated

24.11.16, made by the applicant invoking Clauses no. 63 & 64 of

the GCC for appointment of Arbitrator but to no avail. Hence, this

application.

3.

Learned counsel appearing for the non applicant contended

that Clause 63 of the GCC, in the first instance 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

its completion, whether before or after the determination of the

contract are required to be referred by the Contractor to the

General Manager, who in his turn is required to notify decision on

all matters referred to by the contractor in writing within a period

of 120 days except for the matters, which are specifically excluded

from the purview of the arbitration clause. Learned counsel

submit