- (1.) Instructions produced before this Court today is taken on record.
(2.) Present application has been filed seeking appointment of a neutral Arbitrator in terms of the powers vested in this Court by virtue of Section 11 (6) of the Arbitration and Conciliation Act, 1996 (in short 'the Act').
(3.) The averments, in brief, are that Opposite Parties through tender invited bid for maintenance contract of EOT Cranes, DSA and EOT Track Measurement and Repairing with Spares. In pursuance to the said tender, the applicant also gave his bid and was declared successful. Subsequently, a Letter of Acceptance was issued by the Opposite Parties and subsequent thereto, an agreement was entered into between the parties on 18.4.2015. A copy of the agreement is filed as Annexure-3. Arbitration clause is provided under Condition No. 26 of the tender document, which is as under; "26.1 In the event of any question, dispute or difference arising under these conditions or any special conditions of contract, or instructions to tenderers or in connection with this contract (except as to any matter the decision of which is specifically provided for by these conditions or instructions to tenders or the special conditions) the same shall be referred to the sole arbitration of a GazettedRailway Officer appointed to be the Arbitrator however, will not be one of those who had an opportunity to deal with the matters to which the contract relates or who in the course of his duties as a Railway servant had expressed views on all or any of the matters under dispute or difference. The award of the arbitrator shall be final and binding on the parties to this contract. 26.2 In the event of the arbitrator dying neglecting or refusing to act, or resigning or being unable to act for any reason or his award being set aside by the court for any reason, it shall be lawful for the authority appointing the arbitrator to appoint another arbitrator in place of the out going arbitrator in the manner aforesaid. 26.3 It is further a term of this contract that no person other than the persons appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible the matter is not to be referred to arbitration at all. 26.4 The arbitrator may from time to time with the consent of all the parties to the contract enlarge, the time for making the award. 26.5 Upon every and any such reference, the assessment of the cost incidental to the reference and award respectively shall be at the discretion of the arbitrator. 26.6 Subject to as aforesaid, the Arbitration Act 1940 and the rules there under and any statutory modification thereof, for the time being in force, shall be deemed to apply to the arbitration proceedings under this clause. 26.7 Work under the contract, if reasonably possible if so decided by the Engineer, may continue during the arbitration proceedings and no payment due to or payable by the Engineer shall be with held on account of such proceedings. 26.8 The venue of arbitration shall be the place from which the contract is issued, or such other place as the arbitrator at his discretion may determine. 26.9 In this clause the authority to appoint the arbitrator includes, if there be no such authority, the offer, for the time being discharging the functions of that authority, whether in addition to other, functions or otherwise." ;