Sudhir Narain, J. - (1.) The applicant has prayed for appointment of an arbitrator regarding the dispute and differences arising out of the contract between the applicant and the opposite parties.
(2.) The facts in brief are that the opposite parties vide its notification dated 10.4.1995 invited sealed bids from the individual/ association of persons for conversion of 35 kms. long Mathura (Jn.) Achhnera (ex.) section from metre gauge to broad gauge on Build Own Lease Transfer (hereinafter referred to as (BOLT) basis. The bids were to be opened on 29.5.1995 in the office of Chief Administrative Officer, Construction North-East Railway. Gorakhpur, The applicant and another firm submitted their bid documents for doing the aforesaid work. The bids were subject to terms and conditions mentioned in the General Conditions of Contract Regulation and instruction for tenders and these terms were to form part of the contract. The bids were opened. The Chief Engineer (Construction) West communicated to the applicant vide letter dated 2.2.1996 that the Ministry of Railways for and on behalf of the President of India has accepted the offer for option II for 8 years lease period at the bare project cost including interest of Rs. 34,69,86,183.00 with a monthly lease payment of Rs. 59,14,300.00 and with transfer fee of Rs. 3,11,93,818.00 at the end of lease period. The applicant was requested to take all necessary action. It was further mentioned that the letter of acceptance showing all other details would follow separately. The applicant had submitted tender in sealed cover containing two copies of the documents as required in prescribed form comprising of liability and technical conditions accompanied by relevant documents. The packet No. 2 contained two copies of financial bill, bid document Vol. 1. Section 1 clause (ii) provided that the bidder shall be required to furnish a performance guarantee in the form of a bank guarantee equivalent to 5 per cent of bare construction cost inclusive of interest charges as indicated in the bill. The petitioner did not submit the bank guarantee. The Chief Engineer (Construction) West, Gorakhpur sent a letter dated 27.3.1996 to the applicant intimating it that the final letter of acceptance and award of work shall be done after receipt of the performance guarantee. The applicant was asked to submit the performance guarantee within 15 days of the issue of the letter. Opposite party No. 4 again sent a letter dated 15.4.1996 requesting the applicant to deposit performance guarantee bond. The applicant admittedly did not submit the performance guarantee on 6.5.1996. A letter was issued from the office of the Chief Administrative Officer intimating to the applicant that the letter dated 2.2.1996 and provisional acceptance letter dated 27.3.1996 has been withdrawn as it failed to submit performance guarantee equivalent to 5 per cent of the bare construction cost inclusive of interest charges, i.e.. 1.75 crores.
(3.) The applicant submitted an application for payment of the amount of damages to the tune of Rs. 9,468 lacs on the ground that it incurred the expenses but it was not permitted to perform the contract work and further requested that in the event the amount is not paid the matter be referred to the arbitrator per clause 64 of the Arbitration clause contained in the general terms and conditions of the contract. The copy of those letters dated 11.3.1997, 12.6.1997 and 18.12.1997 have been annexed as Annexure-4, 4A and 4B to this application. As the opposite parties did not agree to refer the matter to the arbitrator, the applicant has filed this petition.;