Sudhir Narain, J. - (1.) The petitioner has prayed that an arbitrator be appointed in respect of the reference made by the petitioner in the matter of contract No. E/10/TC dated 12.8-1994.
(2.) The version of the petitioner is that North Eastern Railway, Izzatnagar, Bareilly issued a tender notice through the Civil Engineering Department of the Railway Division of North Eastern Railway No. 1 /94 dated 3.2.1994 in respect of the contract work. The petitioner submitted a tender which was duly accepted and he started working on the basis of the said contract. The terms and conditions of the contract which was assigned by the petitioner were governed by the Regulations for Tenders and Contracts of the Engineering Department. In this respect, clauses 63 and 64 of the Regulations for Tenders and Contracts are relevant which are quoted herein : "63. All disputes and differences of any kind whatsoever arising but of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract, shall be referred by the contractor to the Railway and the Railway shall within a reasonable time after receipt of the contractor's presentation make and notify decisions on all matters referred to by the contractor in writing, provided that mattes for which provision has been made in clauses 18, 22 (5), 39, 45 (a), 55, 55A (5), 61 (2) and 62 (1) (xiii) (5B) (e) (b) of the General Conditions of contract or in any clause of the special conditions of the contract shall be deemed as 'excepted matters', and decisions thereon shall be final and binding on the contractor, provided further that 'excepted matters' shall stand specifically excluded from the purview of the arbitration clause and shall not be referred to arbitration." 64. (1) (1), In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective right and liabilities of the parties on any matter in question, dispute or difference on any account, or as to the withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within a reasonable time, then and in any such case, save the "excepted matters" referred to in clause 63 of these conditions, the contractor, after 90 days but within 180 days of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference, may be referred to arbitration. (II) The demand for arbitration shall specify the matters which are in question dispute or difference only such dispute (a) or difference(s) in respect of which the demand has been made shall be referred to arbitration and other matters shall not be included in the reference. (III) If the contractor(s) does not prefer his/their specific and final claims in writing, within a period of 90 days of receiving the intimation from the Government that the final bill is ready for payment, he/they will be deemed to have waived his/their claims and the Railway shall be discharged and released of all liabilities under the contract in respect of these claims. ....." The petitioner sent a notice dated 24.8.1995 to the General Manager, North Eastern Railway, Gorakhpur submitting his claim and prayed that either the claim be accepted or a competent officer be appointed in respect of his claim. As the General Manager did not take any steps in the matter the petitioner submitted an application before the Civil Judge. Bareilly for appointment of an arbitrator under Section 20 of the Arbitration Act, 1940 on 13th August, 1996 alleging that he had given a notice on 24.8.1995 in respect of the claim and asking for appointing an arbitrator but as no action was taken, he submitted the application for appointment of the arbitrator. During the pendency of the said application, Arbitration and Conciliation Ordinance, 1996 (Ordinance No. 8 of 1996) came into force. Clause (II) of the Ordinance provided for appointment of an arbitrator and the authority for such appointment was vested with the Chief Justice of the High Court. The Civil Judge look the view that in view of the enforcement of the said Ordinance, the application filed by the petitioner for appointment of the arbitrator under Section 20 of the Arbitration Act, 1940 was not maintainable. The application was returned on 24.8.1996 and the cause of the return was shown as "not maintainable." It did not disclose any reason as to why it was not maintainable. The petitioner, after the application was returned, has filed the application under Section 11 (4) of the Arbitration and Conciliation Ordinance, 1996 for appointment of the arbitrator. The Ordinance has been repealed and has been replaced by Arbitration and Conciliation Act No. 26 of 1996 (In short the Act).
(3.) I have heard Sri Mahesh Gautam, learned counsel for the applicant and Sri V.K. Goel, learned counsel for the respondents.;