- (1.) This is to consider an application under Sections 5, 8, 11 and 12 of the Arbitration Act, 1940 with a prayer for appointment of an independent person to act as a sole Arbitrator/Umpire in order to settle the disputes/ differences as raised in the statement of claims.
(2.) It is stated in the petition that there was an agreement between the parties for execution of the work. Clause 63 of the General Conditions of Contract contained the arbitration clause and formed the part of the agreement. During execution of the work due to laches and negligence of the respondents, the petitioner suffered substantial loss and damages for which the petitioner preferred claims before the Chief Engineer (S&C) Eastern Railway by a letter bearing No. Cl/SKB/167/95 dated 14.8.1995. But as no response was received from the Chief Engineer (S&C) the petitioner by a letter dated 14.12.1995 requested the General Manager, Eastern Railway to take action in terms of Clause 63 of the agreement which was followed by a further reminder by letters dated 22.2.1996 and 9.7.1996. It is also stated that thereafter the said General Manager sent a panel of names to the petitioner to nominate his Arbitrator, Accordingly, the petitioner nominated Sri S.K. Sinha as its Arbitrator while the respondents nominated Sri. A. Bandopadhyay as their Arbitrator and the said Joint Arbitrators entered into reference. It may be mentioned here that Centax (India) Engineers (P) Ltd. is the petitioner while the Union of India and Ors, are the respondents. It is also mentioned that the said Joint Arbitrators thereafter nominated one A.K. Ganguly as the Umpire. The procedural follow-ups were made and the petitioner submitted statement of claims while the respondents submitted the counter-statement of facts before the learned Joint Arbitrators. Although the learned Joint Arbitrators had entered into reference on 15.9.19S7 the time to make and publish the award expired on 14.1.1998. The petitioner thereafter had given consent to the Joint Arbitrators to extend the time for making and publishing the award upto 30.6.1998 and asked the respondents to do so. But the respondents did not extend the time. Thus, the learned Joint Arbitrators became functus officio for which the petitioner by its letter dated 28.6.1999 requested the Umpire, Sri. A.K. Ganguly to enter into reference as per Clause IV of the 1st Schedule of the Arbitration Act, 1940. In such background, the Dy. Chief Engineer (Construction), Eastern Railway by his letter dated 25.8.1999 asked the Joint Arbitrators to take further action and the Joint Arbitrators by letter dated 31.8.1999 gave notice to the disputing parties for the arbitration hearing and the date for the parties was fixed on 4.9.1999. It is alleged that the said letter dated 25.8.1999 was motivated as the Joint Arbitrators became functus officio after 14.1.1998 and the purported notice dated 31.8.1999 issued by the Joint Arbitrators was invalid and infractuous.The petitioner accordingly informed the Joint Arbitrators their position by its letter dated 14.9.1999. But despite all efforst of the petitioner, the respondents did not stop and the General Manager, Eastern Railway sent a panel of four names of Railway Officer to the petitioner by his letter dated 14.2.2000 in order to nominate an Arbitrator from the said panel. In such imbroglio the Umpire, Sri. A.K. Ganguly failed to enter into reference despite the request of the petitioner. It is also stated that Clause 63 (3)(c) as introduced by addendum and corrigendum of 15 is inapplicable here as neither the Joint Arbitrators nor the Umpire have resigned their respective appointments and/or unable or unwilling to act as such. In such circumstances, the present application arose for appointment of an independent Arbitrator/Umpire in order to resolve the disputes between the parties.
(3.) The petition has been contested by the respondents by filing Affidavit-in-Opposition in which all the material allegations are denied and it is inter alia stated that the originally appointed Arbitrators had been transferred and submitted their resignation letters dated 30th December, 1999. In such circumstances in exercise of Clause 63(3)(c) of the said General Conditions of Contract, the General Manager of the Eastern Railway (Administration) by his letter dated 14th February, 2000 nominated a panel of Railway Officers and requested the petitioner to select one of them from the panel as nominee Arbitrator. But the petitioner did not nominate any person from the said panel and in such circumstances it is prayed by the respondents that the Court may give an opportunity to the respondents to appoint Arbitrators in terms of the arbitration clause in order to resolve the disputes between the parties.;