MADHU Vs. GENERAL MANAGER NORTHERN RAILWAY
HIGH COURT OF DELHI
GENERAL MANAGER, NORTHERN RAILWAY
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GITA MITTAL, J. -
(1.) This petition has been filed under Section 11 (2), (4) and (6) of
the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator. It
is contended that the petitioner was awarded certain repair work by the
respondent by an agreement no.09/2004-05 and disputes have arisen on account of
non-payment of bills by the respondent. The petitioner has placed reliance on the
arbitration clause contained in clause 64 in the general conditions of contract,
1999 to contend that in view of the disputes between the parties, this court may
appoint an arbitrator. So far as the notice which the petitioner would be
required to give to the respondent is concerned, it is submitted that the
petitioner sent a legal notice dated 13th January, 2006 invoking the arbitration
clause and appointment of an arbitrator. This petition has been filed on the
plea that the respondent has failed to appoint an arbitrator despite the request
made to the respondent.
(2.) In the reply which has been filed by the respondent, it has been
contended that the petitioner has failed to comply with the requirements of
clause 64 of the General Conditions of Contract, 1999. It is submitted that no
notice of appointment has been served by the respondent in terms thereof. My
attention has been drawn to clause 64 1 (i) which requires the contractor to
demand in writing that disputes or differences be recommended to the arbitration
after 120 days but within 180 days of presenting his final claim. It is further
stipulated in clause 64 that the demand for arbitration shall specify the
matters which are in question or subject of disputes or differences as also the
grant of claim item wise. The arbitration agreement stipulated that only such
disputes or differences in respect of party made a specific demand for reference
to arbitration together with counter claims or set offs shall be referred to
It is necessary to consider the relevant portion of Clause 64 of the
General Conditions of the Contract which reads thus :-
"Clause 64(1)(i) :
"..........the contractor, after 120 days but within 180 days of his
presenting his FINAL CLAIM on disputed matter, shall demand in writing that the
dispute or difference be referred to Arbitration."
"The demand for Arbitration shall specify the matters which are in
question or subject of the dispute or difference as also the amount of claim
itemwise. Only such dispute(s) or difference(s) in respect of which the demand
has been made together with counter claims or set off shall be referred to
Arbitration and other matters shall not be included in the reference."
"In cases where the total value of all claims in question added together
does not exceed Rs.10,00,000/- (Rupees Ten Lakh Only), the Arbitral Tribunal
consist of a sole Arbitrator who shall be either the General Manager or a
gazetted officer of Railway not below the grade of JA grade nominated by the
General Manager in that behalf. The sole arbitrator shall be appointed within
60 days from the day when a Written and valid demand for Arbitrator is received by Railway."
Perusal of the notice dated 13th January, 2006 shows that it does not
specify the matters which are in question of the dispute or difference. the petitioner
has not raised any item wise claim.
(3.) I therefore find that the petitioner has failed to comply with the
stipulation of clause 64 of the General Conditions of Contract, 1999.
This petition is consequently dismissed.
The petitioner shall be at liberty to approach the respondent in terms of
Clause 64 aforenoticed for appointment of the Arbitrator and upon failure to do
so, would be at liberty to seek appointment of the Arbitrator by this court.;
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