S. Banerjee, J. - (1.) The petitioner challenges the award as being without jurisdiction in view of Clause 63(3)(a)(iii) of the General Conditions that governs railway contracts. The petitioner urges that even if such impressive ground does not found favour with court, the award should be set aside for being perverse and having transgressed into matters that are excepted by agreement between the parties.
(2.) Before going into the matter, it may be noticed that there is substantial confusion created by the petitioner in its reliance on certain Clauses of the General Conditions. Several Clauses of the General Conditions that have been referred to in the counter -statement before the arbitrator appear to be completely inapposite, even on the basis of the book containing General Conditions that has been made over by the petitioner to court. It does not appear that some of the Clauses referred to bear any typographical mistake as the same reference is found in the minutes of the proceedings held before the arbitrator and in the award.
(3.) The contractor applied for the appointment of an arbitrator under Sec. 11(6) of the Arbitration and Conciliation Act, 1996 and an engineer was appointed sole arbitrator by an order of September 26, 2002. In the counterstatement filed by the petitioner herein it challenged the jurisdiction of the arbitrator on the following lines: Para A -1: Arbitral jurisdiction is governed by arbitral agreement as per Sec. 28 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act ') and such agreement exists in the present case as per the contract. The General Condition of Contract of Eastern Railway of 1969, subsequently updated and published during 2001 (hereinafter referred to as the 'GCC ') forms integral part of the contract. The arbitral agreement is detailed under Clause 63 and 64 of the said GCC. The Claimant was required to submit details of his disputes/claims for consideration of the Respondent within 120 days of such submission before formally demanding appointment of arbitrator from the General Manager of the Eastern Railway as per Clause 64(1)(i) of the said GCC. However, the Claimant approached the Hon 'ble Calcutta High Court for appointment of arbitrator under Sec. 11 of the said Act. Consequently, you, the Learned Arbitrator, were appointed as the Sole Arbitrator by the Court in contravention of the arbitral agreement and in contravention of Ss. 11(2), 11(6)(a) and 8 of the said Act. Moreover, since the claim amount in the present case is more than Rs. 10 lakh, a panel of arbitrators should have been appointed as per Clause 64(3)(a)(ii) of the said GCC and Sec. 10 of the said Act. However, you have been appointed as the Sole Arbitrator in contravention to the above. Similarly, the arbitral agreement provides for qualification of arbitrator as per Clause 64(3)(a)(ii) of the said GCC but you do not posses such qualification. The Court did not consider this in contravention of Sec. 11(8) of the said Act, while appointing you, the Learned Arbitrator. In view of above, your appointment is illegal and you are, therefore, requested to adjudicate on the above issues under Sec. 12 of the said Act.;